R v Birch

[2016] NSWSC 816

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	R v Birch [2016] NSWSC 816
Hearing dates:	22 April 2016
Date of orders:	14 June 2016
Decision date:	14 June 2016
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) Conviction recorded;  (2) Sentence imposed of 20 years’ imprisonment, commencing 3 December 2014 and concluding 2 December 2034, with a non-parole period of 13 years’ imprisonment concluding 2 December 2027.
Catchwords:	CRIMINAL LAW – murder – domestic violence – early guilty plea – sound rehabilitation prospects – sentence imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Kennedy v The Queen [2010] NSWCCA 260 McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 R v Fernando (1992) 76 A Crim R 58 R v Millwood [2012] NSWCCA 2
Category:	Sentence
Parties:	Regina (Crown) Luke Robert Birch (Offender)
Representation:	Counsel: M Pincott (Crown) E Wilson SC (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) David Davidge Solicitor, Griffith (Offender)
File Number(s):	2014/356714

REMARKS ON SENTENCE

1. HIS HONOUR: On 3 December 2014 Luke Robert Birch was arrested and charged with the murder of his partner Carol Penrith. He has been in custody since then and has pleaded guilty to the charge. The offence arose out of a domestic violence situation.

Circumstances of the Offence

2. There are agreed facts that the parties have submitted to the Court and which form the basis for the sentence that the Court is required to impose.

3. The offender and the deceased, both of whom are Aboriginal, were in a relationship for approximately three years. During that time there were incidents of domestic violence, evidence of which has been adduced. These resulted in physical injury to the deceased but no convictions, mostly because charges were not pressed by her and no formal complaint was forthcoming.

4. Domestic violence is an insidious and concerning aspect of some relationships and remains prevalent in some Aboriginal communities. In my view, in the case of Aboriginal men, and some women, it often results from the disempowerment they themselves feel and their exercise violently of control in one area where they perceive they have some power.

5. The foregoing is an attempt to understand the phenomenon, not condone it. The partner, who is or perceives herself or sometimes himself to be weaker does their relationship, themselves and their partners no favours by failing to report incidents or withdrawing complaints. Such failure prevents treatment or education from occurring and entrenches a violent relationship. An offender who is violent, but is perceived to love the victim or as otherwise a good person, will not change behaviours without treatment.

6. Nevertheless this relationship was not one in which the offender had been charged or convicted for domestic violence. He had other violent offences on his record.

7. It seems the altercations in the relationship arose on occasions when the offender and the deceased were drinking or consuming drugs and usually when the offender perceived that the deceased had hidden or taken money, sometimes as little as $5 that he had wanted to use to gamble or drink or otherwise.

8. On Thursday, 27 November 2014, the deceased and the offender were consuming alcohol all day and had been for the two days prior thereto. They had friends or relatives over to their house. The deceased left to drink elsewhere and returned to continue drinking at home. Most of the guests left. The offender’s brother initially commenced to leave only to return because he was hungry.

9. The brother had previously sought to wake the offender but could not. Both the offender and the deceased were extremely drunk. When the brother returned the offender and the deceased were each awake.

10. The offender was looking for his key card, which on previous occasions had been hidden by the deceased to prevent, for example, use of rent money or the like. The offender accused the deceased of hiding the key card on this occasion.

11. The offender and his brother looked for the card and the deceased seemed to try and assist. The offender and the deceased were arguing and swearing at each other. A glass was knocked from the kitchen bench which caused a small scratch to the deceased despite the effort of the offender to prevent her being injured.

12. Finally, the offender’s brother, after offering to pay so the offender would go with him, left. The offender and the deceased were home alone.

13. When the offender’s brother was outside the door to the premises, he heard noises emanating from inside, being the deceased making noises as the offender sounded like he was punching her in the abdomen.

14. The offender’s brother banged on the door and shouted for the offender to stop. He did not. The assault continued. At one stage the offender threatened to fight his brother, accusing him of “being interested in” the deceased.

15. The brother described the offender as being out of control and in a rage. When the assault concluded, the brother was able to obtain entry. He described the offender as drunk and saw the deceased rise from the floor, lie on the couch, roll a cigarette all the while moaning. Apparently the brother left and the offender at some later time crashed on the bed, asleep. What occurred in the meantime is unknown.

16. At 7am the next morning, 28 November 2014, the brother returned to the residence using a rear sliding door. The deceased was lying on her back in the hallway, was cold to touch and was apparently dead. The offender was still asleep. The brother woke him. The offender was shocked, cradled the deceased and started to cry.

17. At 11am the offender attended the police station. He sat crying and could not speak. An address was obtained by police who attended the premises and found the deceased’s body.

18. The autopsy reveals that the cause of death were two lacerations to the heart. These lacerations bled into the heart causing death.

19. The autopsy revealed multiple fractures to the ribcage. Ten ribs were fractured and two were showing signs of healing from recent fractures. One or more of the fractured ribs would have pierced the heart causing death. There was also bleeding into the small bowel mesentery as a result of blows to the stomach.

20. Other less serious injuries were also evident. Plainly multiple blows were inflicted. This was a brutal attack on a weaker, vulnerable and drunk partner by the offender while he too was drunk.

Subjective Circumstances

21. It is necessary to look at the subjective circumstances of the offender. The Court has the benefit of a psychologist’s report from Ms Robilliard.

22. The offender’s family background is sadly common and he experienced abuse, violence and an environment of alcohol abuse and deprivation from infancy. His care was undertaken by his mother, his grandparents and by foster carers and institutions. He was homeless in his teenage years. He had lived as a victim in refuges, a report from which, including care reports, are now before the Court.

23. Unsurprisingly in the circumstances he was in trouble at school from an early age and was eventually “expelled”, as he described it. He has had limited employment and at the time of the offence was living on social security, as was the deceased.

24. Ms Robilliard describes the dysfunction of the offender’s life. He fits the Fernando criteria (see, Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571) and must be considered accordingly: R v Fernando (1992) 76 A Crim R 58. Those factors do not allow the fixing of an inappropriately inadequate sentence that fails to recognise the seriousness of the offence. The offender abuses drugs and alcohol to block out his early trauma.

25. The offender has shown full remorse and, with proper treatment and supervision, has sound prospects of rehabilitation. The offender pleaded guilty at the earliest possible opportunity and will receive a discount on sentence to reflect the utilitarian value of the plea at 25% with certain roundings: s 22 Crimes (Sentencing Procedure) Act 1999 (NSW).

Consideration

26. The injuries that were sustained by the deceased were significant. There was a significant degree of violence exhibited. That is disturbing. Nevertheless I do not consider that Mr Birch intended to kill the deceased or wanted her to die even at the height of the attack.

27. This is a domestic violence situation. I do not consider that the failure to provide a key card, if it were the case, which I doubt, amounts to provocation either to excuse or to lessen culpability.

28. I have no doubt that the offender intended to occasion grievous bodily harm or very serious injury. I do not find beyond a reasonable doubt that he intended to kill the deceased. Indeed, I find that he did not intend to do so. I hasten to add that the Crown does not suggest an intention to kill.

29. I do not consider that the level of violence involved gratuitous cruelty. It was certainly violent but it did not suggest that the infliction of pain was an end in itself: see, McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [30], per Howie J, with whom McClellan CJ at CL and Simpson J agreed. In the words of the Court of Criminal Appeal it is completely unnecessary in order to form a proper assessment of the seriousness of this crime inflicted upon the deceased to introduce the concept of gratuitous cruelty. It adds nothing significant to the description of what was an assault upon a vulnerable woman.

30. Fundamental in assessing the combination of objective and subjective factors, is the dysfunctional childhood suffered by the offender to which I have referred albeit somewhat summarily. I agree with Simpson J in R v Millwood [2012] NSWCCA 2 at [69] that a person who has had that kind of start in life does not bear equal moral responsibility with one who has had a “normal”, whatever that mean, or “advantaged” upbringing.

31. Her Honour said:

“Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions … That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court.”

32. Of course, Fernando was given approval by the High Court in Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571, as was the judgment of the Court of Criminal Appeal in Kennedy v The Queen [2010] NSWCCA 260.

33. The previous personal violence acts are relevant in determining the degree to which specific deterrence and punishment are given a greater preponderance and in so doing where in the range available from the objective circumstances of the offence, the sentence to be imposed upon the offender should lie.

34. I assess the objective gravity of the offence as at or about the midrange of conduct to which the charge of murder applies.

35. The Court has had the benefit of statements relating to victim impact. For my own part all murders have an impact upon the family of the kind that has been suggested. Nothing that the Court can do will bring the deceased back. Her family continues to suffer and will continue to suffer. This is true of every murder, indeed, it is true of every killing occasioned by acts of violence.

36. Murder, as I have already stated, is the most serious of offences and is seen as the most serious offence in the criminal calendar. It has a maximum sentence of life imprisonment and a standard non-parole period of 20 years imprisonment. A full-time custodial sentence is plainly warranted.

37. Sentencing involves the resolution of goals that pull in different directions and often conflict. They include the protection of society, the deterrence of the offender, the deterrence of others who might be tempted to offend, retribution or punishment and reform or rehabilitation.

38. As is often stated, the goals overlap and cannot be considered in isolation. Sometimes, even seemingly conflicting goals, overlap. The best means of protecting society is to ensure full rehabilitation. Rehabilitation is also the single most effective deterrence of the offender committing offences of the same kind.

39. Nevertheless punishment is required, general deterrence is required and while hope may spring eternal, the reality of sentencing is that rehabilitation is unfortunately not always successful. In some cases, such as this, while personal deterrence is at first blush an important element, the spontaneous nature of this offence and its lack of premeditation and planning suggest that no conscious intention has been brought to bear. The intention to inflict really serious injury was momentary but fatal. On the other hand that spontaneity involves a greater need to have regard to the protection of society, at least until such time as society can be confident that rehabilitation has occurred.

40. Sentencing is an intuitive process in which the objective gravity of the offence and the subjective circumstances of the offender are considered together with the guidepost of the maximum sentence and the standard non-parole periods in order to arrive at a result that implements the purposes of sentencing to which mention has been made and which are prescribed in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

41. As is expressed above, I have had regard to the aggravating and mitigating factors in s 21A of the Crimes(Sentencing Procedure) Act, although not by way of checklist. I indicate a starting head sentence of 27 years, but round the results of the discount.

Sentence

42. LUKE ROBERT BIRCH, please rise:

You are convicted of murder in that on 28 November 2014 at Griffith in the State of New South Wales you did murder Carol Penrith.

I sentence you to a non-parole period of 13 years’ imprisonment, commencing 3 December 2014 and concluding 2 December 2027 with a remainder of term of a further seven years’ imprisonment concluding on 2 December 2034. You are first eligible for release on 2 December 2027.

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Amendments

20 June 2016 - Paragraph numbering corrected.

Decision last updated: 20 June 2016