New South Wales Court of Criminal Appeal CITATION : REGINA v. WALKINGTON [2003] NSWCCA 285 revised - 29/10/2003 HEARING DATE(S) : Friday 3 October 2003 JUDGMENT DATE : 3 October 2003 JUDGMENT OF : Grove J at 44; Hulme J at 49; Greg James J at 1 DECISION : Appeal dismissed CATCHWORDS : Criminal law - sentence - Crown appeal - murder of partner - whether prior conviction for assault on victim can be disregarded when considering absence of prior record as a mitigating circumstance - degree of culpability - whether sentence manifestly inadequate - whether open to trial judge to find special circumstances - whether ill treatment of body after death amounts to "gratuitous cruelty" for consideration of aggravating circumstances doubted - appeal dismissed. LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Fernando (1992) 76 A. Crim. R. 58 CASES CITED : Allpass (1994) 72 A. Crim R. 561 Hallocoglu (1992) 29 NSWLR 67 PARTIES : REGINA v. WALKINGTON, Benjamin FILE NUMBER(S) : CCA No. 60212 of 2003 COUNSEL : Crown: E. Wilkins Resp: C. Davenport SOLICITORS : Crown: C.K. Smith Resp: R. Davies, Western Aboriginal Legal Service LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70112/02 FILE NUMBER(S) : LOWER COURT Newman, J. JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL No. 60212 of 2003 GROVE, J. HULME, J. GREG JAMES, J. FRIDAY 3 OCTOBER 2003 REGINA v. BENJAMIN WALKINGTON Judgment 1 GREG JAMES, J: This is an appeal by the Director of Public Prosecutions for the State of New South Wales against the sentence imposed by his Honour, Acting Justice Newman, a judge of the Supreme Court of New South Wales in the Supreme Court at Dubbo on 6 June 2003 upon the respondent. 2 The respondent had been found guilty by a jury of the murder of his partner, Samantha. That offence had occurred on 29 March 2002 at Buttabone Station near Warren. At the trial the offender had pleaded not guilty to murder but guilty of manslaughter. The trial had taken some eight days. 3 The learned trial judge sentenced the respondent to imprisonment for 18 years with a non-parole period of 12 years. His Honour had found special circumstances. 4 In his remarks on sentence the learned sentencing judge had referred to the relationship between the deceased and the offender. It had been of some 15 years duration prior to the deceased's death. There were five children of the union. The offender was of Aboriginal extraction, however, the deceased was of European extraction. His Honour adverted to the stormy occasions during the relationship and particularly drew attention to the prisoner's conviction of an assault upon the deceased in 1997, but said of the relationship, "but by and large (it) was regarded by family observers as a successful relationship". 5 His Honour went on to note that by the end of 2002 the prisoner had formed some view, whether arising from the prisoner's increasing drinking or not, that the deceased had entered into a sexual relationship with another worker on the property. 6 His Honour expressed the view that on the evidence before him that suspicion was unfounded until the night before the murder. On that night the deceased had sexual intercourse with that man, who in evidence stated that the deceased had referred to her having been wrongly blamed for having an affair with him. 7 The trial judge adverted to the offender having consumed, habitually, enormous quantities of beer and expressed the view that his drinking habits may well have been the real reason for the deterioration of his relationship with the deceased. 8 On Sunday 24 March, some five days before her death, the deceased went to stay with her father and step-mother in Coonamble. His Honour found that there had been threats made to her by the offender and she returned to Buttabone with the children but advised him on her return that she desired to end her relationship with him. 9 On the day prior to the murder the offender, having booked himself into a local motel, spent the night drinking a very large quantity of full strength beer and then having determined not to stay at the motel, decided to return to the station. 10 The trial judge found that he was suspicious that the other worker might there be present with his wife, a suspicion no doubt enhanced by the effect of the beer drinking. His Honour then found:- "However the effect alcohol had upon him on that night did not inhibit his capacity to plan his actions nor prevent him forming the requisite intent for the crime of which he had been convicted." 11 In his remarks on sentence his Honour detailed the course of action then taken by the respondent, including taking care to approach from the rear of the house, then entering from the front when the rear door was locked. His Honour referred to the offender's account of what then occurred, that is that his partner had told him that she had had intercourse with the other man, that she then threatened him with a knife, he grappled with her and thereafter had no recollection of events until he remembered being on top of her and saying, "you're dead". 12 The trial judge referred to this account as having been, in his view, properly rejected by the jury. He found that the offender on entering the house engaged in a brutal attack upon the deceased using no less than three knives when inflicting 22 stab wounds to her body, that the attack was of such vehemence that one knife broke leaving its blade embedded in the deceased's neck. 13 Soon after the attack was completed the offender claimed to his neighbours that he had attempted suicide by stabbing himself. There were injuries to his torso which were obvious and which were consistent with his having inflicted those wounds on himself. 14 His Honour, however, did not accept the prisoner's account of what preceded the assault as a truthful one. 15 This, because of the unlikelihood of the prisoner obtaining the knife in the way in which he said he did, because of the evidence of their daughter who saw her parents on the floor but did not see the knife present and because the injuries were contra-indicative of the prisoner's account. 16 The trial Judge's view as to the credibility of the prisoner's evidence was reinforced in his mind by the evidence of a forensic psychiatrist, Dr. William Lucas who had taken a history from the offender. The trial judge referred to portions of that history as "vagaries". 17 The trial judge expressed the view that whatever the reason for the prisoner's amnesia, there were discrepancies between his account to Dr. Lucas and his evidence at the trial which did not give credence to his overall account. 18 The trial judge referred to the evidence of Mr. Nigel Hayden as to events of which the prisoner claimed no recollection, that he saw the prisoner kick the deceased in the head twice after the prisoner entered the house, after the earlier violence outside the house and the trial judge accepted the evidence of behaviour in this regard as truthful and reliable. 19 In particular the trial judge accepted the evidence of Mr. Hayden that at the time the offender kicked the deceased he was saying words to the effect that the deceased wanted to take the kids off me and she won't take them off me now. 20 His Honour held that the kicking of the head of the deceased was an aggravating feature involving an act of gratuitous cruelty and should be treated as a circumstance of aggravation by reason of s.21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999. 21 He referred to the treatment of the deceased's body by the offender as callous and liable to offend the sensibility of any like minded member of the community. The trial judge adverted to the prisoner's use of no less than three knives and to the respondent's statement concerning the deceased taking his children from him, so as to indicate that he was not provoked, that he was not acting in self-defence, but acted out of a desire to possess the children. 22 On that basis the trial Judge concluded that the objective circumstances of the murder were "at the upper end of culpability in a crime where even a lower order of culpability is serious". 23 I do not apprehend by that that the trial judge was referring to the circumstances of this matter such as to say that the facts of this offence meant it should be placed amongst those offences constituting the worst class of this crime. 24 I do apprehend that his Honour was meaning to indicate by this that a killing of this gravity fell above in its seriousness the mean for offences of murder. 25 His Honour turned to the mitigating features and in particular turned to those mitigating features referred to in s.21A(e) of the Crimes Sentencing Procedure Act 1999. His Honour dealt with a number of those matters to which it is not necessary for the moment to turn. One matter however that it is necessary to turn to is that matter referred to in s.21A(3)(e), that is expressed in his Honour's remarks on sentence as:- "(e) The offender does not have any previous convictions." 26 Under this heading the trial judge expressly referred to the respondent's conviction for assault upon the deceased in 1997 and accepted the submission however, that the sub-section was applicable even when this matter was taken into account. Before us it has been particularly argued that in this respect his Honour fell into error since an assault of this kind upon a person who becomes the very victim of a homicide should always be regarded as a matter of significance, certainly not as a matter of mitigation. Section 21A(3)(e) reads:- "The offender does not have any record or any significant record of previous convictions." 27 In so far as it might be asserted, though for my part I do not understand the submission on behalf of the respondent to say so much, that what is there referred to is the record of a number of offences rather than simply one offence, I would not accept that submission. One offence in this context is plainly capable of constituting a record and a record of significance. However, the task of finding whether a circumstance exists and whether that circumstance properly falls within any of the specific provisions of s.21A is entrusted by the legislature at first instance to the trial judge. 28 The circumstances referred to in s.21A not only require the finding of particular facts but the characterisation of those facts in the light of the other circumstances to be found as important for the purposes of sentencing. Thus whether the particular matter does meet the particular criterion referred to in the section will be a matter for the judgment of the individual trial judge. 29 I am not persuaded that there was such an error, if any error at all in this finding of the trial judge and further I would conclude that if there was an error it was not such as to so affect the sentence that it would be appropriate on that basis to allow the Crown appeal brought as it is under s.5D of the Act. 30 The trial judge referred to a number of mitigating circumstances and in particular rejected a number of matters that were put forward as mitigating including and I make particular mention of it, the offender's offer of a plea of guilty to manslaughter when pleading not guilty to murder. 31 His Honour rejected those features referred to in Regina v. Fernando (1992) 76 A. Crim. R. at 58, relating to a particular disadvantage often experienced by those of Aboriginal heritage as applicable in this case finding that the prisoner had not suffered from those privations, he was a qualified motor mechanic who had been in full employment in his adult life. 32 His Honour said:- "One of the many tragic circumstances of this case is that the prisoner who had succeeded in dealing with life in the general community for all of his life committed the appalling crime which brought him before this court." 33 His Honour gave the consideration that the statute requires to the victim's impact statement and concluded that the sentence should be a sentence of 18 years with the non-parole period of 12 years to which I have referred. 34 Extensive written submissions were filed in support of the appeal by the learned Crown Prosecutor. Those submissions assert a number of grounds including that the sentence was manifestly inadequate, that his Honour failed to impose a sentence that reflected the objective seriousness of the offence, gave insufficient weight to considerations of punishment and general deterrence and too much weight to the subjective circumstances, failed to find a non-parole period which adequately reflected the seriousness of the offence and erred in the consideration of the applicant's prior record, a matter to which I have already adverted. 35 The submission that the sentence was manifestly inadequate is a submission that essentially focuses upon the sentencing outcome having regard to the facts and circumstances of the particular case as found by the trial judge. In support of that submission the Crown has referred us to a large number of cases and to statistical information concerning sentences for murder obtained from the Judicial Commission's sentencing statistics. In her oral argument the Crown Prosecutor conceded that the sentencing statistics were of little utility in this context since it was impossible to extract from them the relevant factual details of each individual case and that whilst a table had been presented with a summary of the facts of the cases referred to by her in paragraph 25 of her submissions, dealing with some 22 cases, they too were of limited utility in enabling one to refer to a proper discretionary range applicable to a case such as this, since the diversity of circumstances in murder cases was such that one could gain only limited utility from other cases. 36 However, she did refer to some facts which she contended placed the case towards the upper end of the murder range of culpability. Not only the finding of the trial judge to which I have referred but also the degree of premeditation and preparation, the degree of the savagery of the attack, the fact that it was committed in a domestic situation in the victim's own home and at least in the case of one child, in the presence of the victim's children. 37 All this, it was submitted, was such as when the sentence was placed in that context to show that the sentence was so markedly below that which would have been imposed in the proper exercise of the discretion, as to show that the trial judge had fallen into appellable error and thus this court should intervene. 38 I do not accept that submission. This was in my view a sentence which was well within the range appropriate to be imposed by a trial judge having regard to the circumstances as found here, even taking into account his Honour's statement concerning culpability and gravity. It is nonetheless to be recognised that the circumstances of these offences and the maximum provided by the law for such offence are likely to produce a wide range of sentences which might properly be imposed by a trial judge. 39 The other matters, except for that matter under s.23A(3) to which I have referred, to which the Crown adverted, really upon analysis, appear to be individual arguments as to why the sentence might be considered as too low rather than themselves illustrations of particular error fallen into by the trial judge and giving rise to that result. I do not accept that they provide good reason to interfere with this sentence, nor indeed do I accept that any one of those matters is made out. 40 Particular attention was paid to his Honour's fixing of a non-parole period and his finding of special circumstances. In this regard his Honour concluded that there were special circumstances particularly in respect of this being the respondent's first time in custody. 41 The Crown submitted that this was an inadequate basis upon which to reduce the non-parole period which so much differed from the proportion the statute would otherwise have required in the absence of a finding of special circumstances. I do not accept that submission. I am unable to conclude that the non-parole period in this case, having regard to all the circumstances the learned trial judge found, was in error in failing adequately or appropriately to reflect the objective criminality of the offence, when I have regard to the matters his Honour found mitigating the offence and personal to the life of the offender. 42 Notwithstanding the extensive and detailed submissions on behalf of the Crown I am unable to conclude that the necessary matters that the Crown must establish, as required by the jurisprudence which has developed under s.5D and as are set out particularly in the Regina v. Allpass (1994) 72 A. Crim. R. 561 and Regina v. Hallocoglu (1992) 29 NSWLR 67, have been made out. 43 In my view the appeal should be dismissed. 44 GROVE, J: I agree with Justice Greg James. There is one peripheral matter upon which I would wish to record some observations. The learned sentencing judge found that the kicking of the head of the deceased victim was an aggravating feature as gratuitous cruelty contrary to s.21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999. His Honour said that treating the body in such a callous manner was an action which would offend the sensibilities of any right minded member of the community. I agree entirely that such gross behaviour certainly merits condemnation. 45 The provision in the statute however, defines an aggravating factor in these simple terms: "the offence involves gratuitous cruelty". One construction would focus upon the offender and, whether tested objectively or subjectively, one could look at what it was the offender intended or could be taken to have intended. 46 An alternative construction which occurs to me is that cruelty itself involves an effect upon the victim and by reason of the insensibility of death, the victim would not be capable of suffering cruelty in the sense that that word is commonly used. 47 As I have said the behaviour was gross and merited condemnation and I have no dissent from his Honour's vigorous remarks about the matter. As his Honour took the matter into account contrary to the interests of the respondent to this Crown appeal, it is not a matter which in my view requires determination and I would prefer to reserve any opinion about that matter to some other occasion. 48 I agree with the orders proposed. 49 HULME, J: I also agree with the orders proposed and substantially for the reasons given by Justice Greg James. I would also wish to be associated with the remarks of the presiding judge. 50 GROVE, J: The order of the court therefore is that the Crown appeal is dismissed. ********** Last Modified: 10/31/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.