R v Benjamin Walkington - [2003] NSWSC 517

CITATION: R v Benjamin Walkington [2003] NSWSC 517 revised - 13/06/2003

HEARING DATE(S): 20/05/03 - 29/05/03

JUDGMENT DATE:
6 June 2003

JUDGMENT OF: Newman AJ at 1

DECISION: 1) The term of the sentence to be 18 years to date from 29 March 2002 and expiring on 28 March 2020; 2) A non-parole period of 12 years commencing on the 29 March 2002 and expiring on 28 March 2014 when the prisoner will be eligible for release on parole.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing and Procedure) Act 1999

CASES CITED: R v Cardoso [2003] NSWCCA 15
R vFernando (1992) 76 A Crim R 58
R v Oinonen [1999] NSWCA 310

PARTIES :
The Crown
Benjamin Walkington - Accused

FILE NUMBER(S): SC 70112/02

COUNSEL: P. Barnett - Crown
C. Davenport - Accused

SOLICITORS: S E O'Connor - Crown
Western Aboriginal Legal Service - Accused

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

Newman AJ

Date 6 June 2003

70112/02 REGINA V BENJAMIN WALKINGTON
SENTENCE

1 HIS HONOUR: The prisoner Benjamin Walkington has been found guilty by a jury of the murder of his partner Samantha on 29 March 2002 at ‘Buttabone Station’, near Warren. The verdict followed a trial of eight days following the prisoner pleading not guilty to murder but guilty of manslaughter.

2 The maximum penalty stipulated by the Crimes Act 1900 is imprisonment for life. Because the murder was committed prior to 1 February 2003 the repealed s44 of the Crimes (Sentencing and Procedure) Act 1999 is applicable in this case.

3 It is now my duty to find the facts of the case. In so doing I shall use the criminal standard of proof, that is proof beyond reasonable doubt.

4 The prisoner and the deceased had been living in a de facto relationship for some 15 years before the date of the murder, 29 March 2002. Five children were born of the union. While a de facto relationship, the deceased victim had taken the prisoner’s surname. The prisoner is of Aboriginal extraction whereas the deceased was of European extraction.

5 The relationship plainly enough had its stormy moments (the prisoner was convicted of an assault upon the deceased in 1997) but by and large was regarded by family observers as a successful relationship. However, by the end of 2002 the relationship had deteriorated. At about that time the prisoner formed the view that the deceased had entered into a sexual relationship with a fellow worker at ‘Buttabone Station’, one William Andrew McKean (‘McKean’). On the evidence before me that suspicion was unfounded until the night before the murder. On that night the deceased had sexual intercourse with McKean. In evidence he stated (and I might say accept his evidence) that the deceased told him that as she had been wrongly blamed for having an affair with him, she might as well have coition with him – which then happened.

6 On the evidence at the trial it appears that the prisoner…

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 Benjamin Walkington

Details

AGLC: R v Benjamin Walkington [2003] NSWSC 517
Case: [2003] NSWSC 517
Decision Date: 6 June 2003

CaseChat Overview and Summary

In the case of R v Benjamin Walkington, the defendant was found guilty of murdering his partner, Samantha, at 'Buttabone Station' near Warren on 29 March 2002. The legal issues before the court were to determine the appropriate sentence, considering both the aggravating and mitigating factors of the case. The court had to balance the severity of the crime, the defendant's state of mind, and his background against the statutory requirements and precedents set by previous cases.

The court concluded that the murder was at the upper end of culpability due to the brutality of the attack and the gratuitous cruelty shown by the defendant. The use of multiple knives and the act of kicking the deceased in the head were highlighted as particularly heinous aspects. However, the court also took into account mitigating factors such as the defendant's good character, lack of previous convictions, and prospects for rehabilitation. While the defendant had shown some remorse, it was not deemed significant enough to heavily influence the sentencing.

Ultimately, the court sentenced Benjamin Walkington to 18 years in prison, with a non-parole period of 12 years, taking into account the special circumstances of his first-time incarceration. The judgment emphasized the devastating impact of the crime on the victim's family, though these factors were not used in determining the sentence.

Orders