JUDGE:	Taylor JA
WHERE HELD:	Melbourne
DATES OF HEARING:	19 September and 16 December 2022
DATE OF SENTENCE:	27 February 2023
CASE MAY BE CITED AS:	R v Basham (Sentence)
MEDIUM NEUTRAL CITATION:	[2023] VSC 79

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CRIMINAL LAW – Sentence – Murder – Premeditated killing of estranged wife – History of family violence – Deceased had obtained family violence intervention order – Accused physically assaulted and hanged deceased – Accused staged the scene to suggest suicide – Accused faced imminent committal hearing of rape charges in which deceased was complainant – Highest objective gravity – Highest moral culpability – No prior convictions – Absence of remorse – Offence falls into worst category – Sentence of life imprisonment – Non-parole period of 30 years.

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APPEARANCES:

Counsel

Solicitors

For the Crown

Ms N Rogers SC with
Mr L Cameron

Office of Public Prosecutions

For the Accused

Mr A Halphen with
Ms A Beech (19 September 2022)
Mr D Dann KC (16 December 2022)

Slades & Parsons (19 September 2022)

Melinda Walker (16 December 2022)

HER HONOUR:

Adrian James Basham, on 21 April 2022 after a five week trial, you were convicted by a jury of the murder of Samantha Joy Fraser.

Murder is a Category 1 offence under the Sentencing Act 1991 (‘Act’).[1] The maximum penalty for murder is life imprisonment.[2]
[1]Act, s 3. Accordingly, the Court must impose a term of imprisonment. The standard sentence for murder is 25 years: Crimes Act 1958, s 3(2)(b).
[2]Crimes Act 1958, s 3(1)(a).

Summary of offending

Ms Fraser was your estranged wife. You married in March 2007, had three children and settled in Cowes, Phillip Island. The marriage experienced difficulty and eventually broke down. You separated permanently in April 2017. After an initial period in which Ms Fraser lived with her parents, she returned to live with the children in the former matrimonial home at 19 Seagrove Way.

Ms Fraser lived in abject fear of you. Both during the relationship and after you had separated, she told friends and professionals that she was petrified of you, that you were monitoring her physical movements and electronic communications and that you had made threats that you would destroy her. Subsequent to the separation Ms Fraser obtained a Family Violence Intervention Order (‘FVIO’) to which you were the respondent. She changed the locks on the doors and windows of her home, had security equipment installed and the electronic remote control for the garage recoded. She also swore two police statements that detailed allegations of rape during the marriage. You were charged with rape in August 2017. You faced a contested committal hearing with respect to those charges on 30 July 2018.[3]
[3]Subsequent to the murder conviction, the Director of Public Prosecutions withdrew the three extant rape charges.

On the morning of 23 July 2018, having taken considerable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Basham (Sentence)

Details

AGLC: R v Basham (Sentence) [2023] VSC 79
Case: [2023] VSC 79
Decision Date: 27 February 2023

CaseChat Overview and Summary

The case of R v Basham involved the sentencing of the appellant for the murder of his estranged wife. The deceased had obtained a family violence intervention order against the appellant, prohibiting him from contacting her. Despite this, the appellant physically assaulted and hanged the deceased. He then staged the scene to suggest suicide. The appellant was facing an imminent committal hearing for rape charges where the deceased was the complainant. The appellant had no prior convictions and showed no remorse.

The legal issues before the court included determining the appropriate sentence for the murder, considering the highest objective gravity and moral culpability of the offence, and assessing the appellant's lack of remorse. The court had to balance these factors with the absence of prior convictions and the appellant's imminent committal hearing for related charges. The court also needed to decide on the non-parole period, given the severity of the crime.

The court held that the murder fell into the worst category due to its premeditated nature, the history of family violence, and the appellant's actions in staging the scene. The highest objective gravity and moral culpability were found to be present. Despite the appellant's lack of prior convictions, the court emphasised the severity of the crime and the absence of remorse. The court sentenced the appellant to life imprisonment with a non-parole period of 30 years, reflecting the seriousness of the offence and the need to protect society.

The court ordered that the appellant be detained in custody, serving a non-parole period of 30 years before being eligible for parole. This sentence aimed to reflect the gravity of the crime and the need to protect the community from the appellant.

Orders