R v Walker (No 8) [2017] NSWSC 1548

Supreme Court New South Wales

Medium Neutral Citation: R v Walker (No 8) [2017] NSWSC 1548 Hearing dates: 16 November 2017, 23 November 2017 and written submissions dated 17 November 2017 and 20 November 2017 Date of orders: 23 November 2017 Decision date: 23 November 2017 Jurisdiction: Common Law - Criminal Before: Schmidt J Decision: Deceased offender cannot be sentenced. Catchwords: CRIMINAL LAW – sentence – murder – death of convicted offender – consequences of the offender's death – offender cannot be sentenced if deceased – victim impact statements Legislation Cited: Crimes Act 1900 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 Category: Sentence Parties: Regina (Crown) Jamie Christopher Walker (Offender) Representation: Counsel: Mr C Maxwell QC with Ms J Smith (Crown) Ms B Rigg SC (Amicus Curiae)

Solicitors: Solicitor for Public Prosecutions (Crown) File Number(s): 2015/124540 Publication restriction: Nil

EX TEMPORE Judgment 1. This matter was listed for sentencing on 16 November 2017, Mr Walker having been convicted in August 2017 by a jury, of the murder of his partner, Linda Locke, in April 2015. 2. After the matter was listed for sentence, the Court was notified that Mr Walker had been hospitalised. He did not appear for sentence in circumstances explained in an affidavit sworn by his solicitor, Ms Pearce, to which was annexed a letter from a treating doctor at Prince of Wales Hospital. The letter advised that Mr Walker had recently been diagnosed to be suffering from cancer; that his condition had deteriorated; and that his prognosis was very poor, there being no suitable treatment available for his condition. His lifespan was then thought to be short. Neither at the trial nor sentence hearing, had there been evidence that he was suffering such ill health. 3. By consent of the Crown, on 16 November, the matter was adjourned and I directed the parties to file written submissions, there being an issue between them as to whether sentencing could proceed in Mr Walker's absence, without his consent. The Crown then accepted that Mr Walker should have the opportunity to instruct his counsel as to whether he wished to waive his right to be present when he was sentenced, before that issue was resolved. 4. Before today's further listing, when that issue was due to be dealt with, the Court was notified that Mr Walker had died. That has removed the need to resolve the question of whether, in Mr Walker's circumstances before his death, the Court could proceed to sentence him, even in his absence, given either his refusal, or inability to waive his right to be present, which the parties had addressed in their written submissions. 5. The Crown then filed a further written submission, in which it accepted that under the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court could not now "sentence" Mr Walker, that being defined in s 3 to mean "the penalty imposed for an offence" and "sentencing court" there being defined to mean "in relation to an offender undergoing a penalty imposed by a court, means the court by which the penalty was imposed". The word "penalty" is not defined in the Act and so takes its ordinary meaning. It is relevantly defined in the Macquarie Dictionary to mean "a punishment imposed or incurred for a violation of a law". 6. In oral submissions the Crown also made reference to the purpose of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act which provides: "The purposes for which a court may impose a sentence upon an offender are as follows: (a) To ensure that the offender is adequately punished for the offence, (b) To prevent crime by deterring the offender and other persons from committing other similar offences, ( c) To protect the community from the offender, (d) To promote the rehabilitation of the offender, (e) To make the offender accountable for his or her actions, (f) To denounce the conduct of the offender, and, (g) To recognise the harm done to the victim of the crime and the community." 1. The Crown thus submitted that, once an unsentenced offender has died, the Court cannot impose any punishment upon him or her and, accordingly, the offender cannot be sentenced for the offences of which he or she has been convicted, nor can the sentencing remarks which would have been delivered if the offender still lived, be published. 2. It is s 4 of the Crimes (Sentencing Procedure) Act which specifies the penalty which may be imposed on an offender. Section 5 deals with penalties of imprisonment, providing: "5 Penalties of imprisonment (1) A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. (2) A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including: (a) its reasons for deciding that no penalty other than imprisonment is appropriate, and (b) its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender). (3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) A sentence of imprisonment is not invalidated by a failure to comply with this section. (5) Subject to sections 12 and 99, Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order or home detention order." 1. I accept as the Crown submitted, that s 5 must be understood as contemplating that to sentence a person to a term of imprisonment, he or she must be alive to serve the intended sentence to be imposed by the Court, notwithstanding the provision made in s 5(4) and the other purposes of sentencing specified in s 3A. 2. Mr Walker had been in custody, bail refused, since his arrest in April 2015. On the evidence, before his death, he received the treatment he required for his condition in hospital, after his conviction of Ms Locke's murder. That accorded with the principle that offenders may not escape punishment because of the condition of their health and that it is the responsibility of correctional services authorities to provide appropriate care and treatment for sick prisoners: R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [135]. 3. It is the State Parole Authority which may direct the release of an offender on parole, before the offender's eligibility date, if an offender is dying, or if the Authority is satisfied that it is necessary to release the offender on parole, because of exceptional circumstances: Crimes (Administration of Sentences) Act 1999 (NSW), s 160(1). The Crown's prerogative of mercy is also preserved by s 270 of that Act. None of these discretions were exercised in Mr Walker's case and so he died in custody. 4. It was also the Crown's case that, despite Mr Walker's death, on this occasion it was open to the Court to make some observations about his offending, even though the sentencing remarks which would have been delivered, had he lived, cannot be published. I agree. Accordingly, I make the following observations: * The blow under Ms Locke's chin and Mr Walker pulling her backwards to the ground were both Mr Walker's deliberate acts. Each were capable, individually or together, of resulting in the tearing of her bridging veins which led to the haemorrhage and haematoma which caused Ms Locke's death. * Both acts involved considerable, deliberate violence. * Ms Locke was particularly vulnerable to Mr Walker's violence, not only because she was affected by both drugs and alcohol that night, but because of the nature of their long standing relationship and where and when that violence occurred, late at night in the home which they shared together. * At committal Mrs Hartl's translated evidence was of having seen Mr Walker push Ms Locke back to the position in which she lay motionless. That cannot detract from these conclusions. Mrs Hartl did not accept that description at trial, when what she and Mr Hartl both described involved considerably more aggression on Mr Walker's part, than that, consistent with what other neighbours had heard him say and do over the course of that night. * The force which Mr Walker then used was sufficient to have rendered Ms Locke unconscious, even if his earlier blows did not. * Ms Locke may have regained consciousness at some time during the night, when Mr Hartl heard some further yelling. That cannot have been for long, given the next morning Ms Locke was seen lying in the same position to that which she had fallen between 1:15 and 1:30am. * While it must be accepted that Mr Walker had not planned or intended to cause Ms Locke a fatal brain injury, the evidence established beyond reasonable doubt his intention to cause her grievous bodily harm, as the jury found. * That Mr Walker just acted on an impulsive loss of control when he pulled Ms Locke back, after he had quietly asked Ms Locke to stop slamming the door and come inside, also cannot be accepted, given the evidence of all that the neighbours heard and saw that night; how the sustained arguing was pursued over the course of the night; what occurred after midnight, before Mr Walker's final violent act, when he pulled Ms Locke forcibly backwards into the position in which she stayed until morning; and the considerable force which Mr Walker then used, which brought Ms Locke's cries for assistance to an abrupt end. * Mr Walker then slamming the door, leaving Ms Locke bleeding heavily from the head, unconscious and in obvious need of medical assistance; and later cleaning up blood from the carpet, were also deliberate acts. * That it was merely lack of understanding, panic or a desire not to be blamed for Ms Locke's serious injuries which motivated Mr Walker to leave her lying helplessly on the ground, as she was found by ambulance officers, cannot be accepted. The further yelling which Mr Hartl heard later that night, he having also seen Mr Walker at the window; and Mr Walker having cleaned up, as he said he did, before the ambulance arrived, precluded those conclusions. * The evidence established that it was Mr Walker's deliberate and callous failure to seek timely assistance which Ms Locke so obviously needed, which brought about her death. That Mr Walker's behaviour was not deliberate or calculated to conceal his crime, or consistent with his nervousness or shock when he later realised the seriousness of the situation, also could not be accepted. What he variously told the 000 operator, ambulance and police precluded those conclusions. * What Mr Walker did, having seriously injured Ms Locke as he undoubtedly appreciated, not only long delaying before calling for assistance, but giving inconsistent and plainly false accounts as to what had happened; not going to the hospital or even enquiring after Ms Locke, but remaining at home to continue cleaning; and finally, refusing to open the door when the police attended - were not consistent with Mr Walker not only having had a real appreciation of the seriousness of his actions, but also actively pursuing steps to avoid responsibility for them. * One neighbour saw the lights on at 5:10 am when she got up and still Mr Walker did not seek assistance for Ms Locke. Even accepting that he had slept for a time as Mr Walker claimed in the 000 call, he did not even then call for help, as he so easily could have. * That Mr Walker's offence was objectively very serious, inflicting death being the most serious offence of domestic violence which an offender can commit, thus cannot be doubted. 1. Had Mr Walker's sentencing proceeded, given the seriousness of Mr Walker's offence; his moral culpability for that offending; how the factual issues lying between the parties had to be resolved; the applicable statutory guideposts provided by the maximum sentence imposed by the Crimes Act 1900 (NSW) for the offence of murder, namely, life imprisonment and the standard 20 year non-parole period fixed for such offences; the applicable sentencing principles; the evidence on which Mr Walker was to be sentenced, including as to the factual matters over which the parties had joined issue and his personal circumstances – a very considerable sentence would have been imposed upon Mr Walker. 2. While Mr Walker's death has precluded a sentence being imposed upon him, it has also established that even if he had been sentenced on 16 November 2017, he would not have lived to serve much more of the sentence, which he had effectively been serving since his arrest in 2015. 3. Accordingly, all that now remains for the Court to do is to deal with the victim impact statements which were received at the sentencing hearing and which I considered before sentence, in accordance with s 28 of the Crimes (Sentencing Procedure Act). 4. At the sentence hearing four very moving victim impact statements were read out in open court, one made by Ms Locke's mother, another by her father, one by her sister and another by her daughter, who had been called to give what was obviously very painful evidence at trial, about domestic violence she had observed Mr Walker inflict on her mother, in the past. That the consequences of all of these difficult experiences have been particularly hard for her, was very obvious from her evidence and her statement. 5. Even though because of Mr Walker's death, he cannot now be sentenced, I am satisfied that it should still be said in open court, that it has long been recognised by the law, that all human life is precious and that the death of any person is a harm which an offender inflicts, not only on the victim and the victim's family, but also on the community generally. Further, domestic violence related crime is particularly abhorred: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [55]. 6. From the evidence received at trial, it was obvious that the tragic reality is that Ms Locke's death was not only unnecessary, but also truly awful, resulting as it did from the acts of her partner, against whom she was finally defenceless and from whom she did not then receive the help he should have given her, when she so desperately needed it and when it could have been so easily given. 7. One human life cannot be valued over that of another. Nevertheless, in this case the victim impact statements which were read to the Court shed considerable light on the harm which Ms Locke's murder had done to her family, especially her daughter. No one who heard those statements read that day, could have failed to be moved by them. 8. To Ms Locke's family and friends I thus offer my very deepest sympathy for their awful loss, as well as what they have had to endure during these proceedings and what, particularly for them, will be an unwelcome conclusion to that process. 9. What her family, in particular, must continue to bear, not only as the result of her death, but also as the result of the dreadful way that it was brought about, is no doubt very difficult for others to comprehend. Their very difficult situation is, however, acknowledged. Their suffering is not overlooked by the community of which we are all members, but rather is recognised today. 10. It is to be hoped that the proceedings will still give them all some small measure of comfort, revealing as they do how our society and the legal system it has created, operates to deal with awful offending of the kind which Ms Locke's murder involved, even though the final step intended by this process, the imposition of a sentence on Mr Walker, could not be taken by the Court because of his unexpected death.