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R v Dempsey

R v Dempsey

Case [2023] NSWSC 205 17 March 2023

Victim Impact Statements

Deterrence

Criminal Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Dempsey [2023] NSWSC 205
Hearing dates: 03 February 2023
Date of orders: 17 March 2023
Decision date: 17 March 2023
Jurisdiction: Common Law - Criminal
Before: Hamill J
Decision:
The offender is sentenced to imprisonment for 19 years and 9 months, with a non-parole period of 14 years and 6 months.

Catchwords:
CRIMINAL LAW – sentencing – murder – brutal and sustained attack on former domestic partner – culminating in hard blow with hammer or similar weapon to the back of head – victim left in bathtub – whether death by drowning – impact on assessment of objective criminality – victim impact statements – sisters caring for young children of deceased – courage and resilience – relevance of impact on sentence – deterrence – victim entitled to leave area and move to country with children – no mitigation in offender’s love for children or fear of losing them – increased need for deterrence in such circumstances – offence in victim’s home an aggravating feature – use of weapon – dysfunctional childhood – relevance to sentencing – history provided to psychologist – evidence accepted – reduction in moral culpability – not relevant to objective gravity – mid-range of objective seriousness – appropriate sentence – special circumstances – modest adjustment to non-parole period

Legislation Cited:
Children (Criminal Proceedings) Act 1987, s 15A
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 2, Table to Pt 4 Div 1A, ss 21A(2)(c), 21A(2)(eb), 21A(2)(k), 21A(3)(i), 30E(3)

Cases Cited:
Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204
Devaney v R [2012] NSWCCA 285
DH v R [2022] NSWCCA 200
Lechmana v R [2019] NSWCCA 112
Lloyd v R [2022] NSWCCA 18
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Ahmed (No 2) [2023] NSWSC 105
R v Halloun [2014] NSWSC 1705
R v Hamid [2006] NSWCCA; (2006) 164 A Crim R 179
R v Haydar (No 4) [2017] NSWSC 615
R v Hines (No 3) [2014] NSWSC 1273
R v Johnson [2015] NSWSC 31
R v Latu (No 3) [2019] NSWSC 951
R vLechmana [2010] NSWSC 849
R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369

Category: Principal judgment
Parties: Rex (Prosecution)
Rodney Dempsey (Defendant)
Representation:
Counsel:
N Marney (Prosecution)
T Warr (Defendant)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Prosecution)
Hal Ginges & Co. (Defendant)

File Number(s): 2020/55909
Publication restriction: The names of persons who were children at the time the offence was committed are prohibited from publication: see s 15A of the Children (Criminal Proceedings Act 1987 (NSW).

JUDGMENT

On 8 March 2012, Jenoa Sutton was brutally murdered in her own home by Rodney Dempsey, her former partner and the father of her two young children. The devastating impact of Ms Sutton’s killing found voice in a series of victim impact statements…

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 Dempsey

Details

AGLC: R v Dempsey [2023] NSWSC 205
Case: [2023] NSWSC 205
Decision Date: 17 March 2023

CaseChat Overview and Summary

In the Supreme Court of Victoria, the case of R v Dempsey involved a prosecution against the appellant, Dempsey, for the murder of his former domestic partner. The incident involved a brutal and sustained attack culminating in a hard blow to the back of the victim's head with a hammer or similar weapon. The victim was subsequently found in the bathtub, with the prosecution arguing that the death was by drowning. The court was tasked with determining the appropriate sentence for Dempsey, considering the objective seriousness of the crime, the impact on the victim's family, and any mitigating factors.

The central legal issues before the court were the assessment of the objective criminality of the offence, the relevance and weight to be given to victim impact statements, and the role of the offender's dysfunctional childhood in the sentencing process. The court needed to evaluate the severity of the crime, the effect on the victim's sisters who were left caring for her young children, and whether any aspects of Dempsey's background could reduce his moral culpability. Additionally, the court considered the need for deterrence, particularly in light of the victim's intention to leave the area with her children and the absence of any mitigating factor regarding Dempsey's relationship with the children.

The court concluded that the murder was of mid-range objective seriousness, taking into account the brutality of the attack, the use of a weapon, and the fact that the offence occurred in the victim's home. The impact on the victim's family, particularly the sisters who had to care for the young children, was significant and relevant to the sentencing process. While Dempsey's dysfunctional childhood was acknowledged, the court determined that it did not reduce his moral culpability in relation to the objective gravity of the offence. The court also emphasised the importance of deterrence given the victim's intention to leave the area and move to the country with her children. After considering all these factors, the court determined that the appropriate sentence warranted a modest adjustment to the non-parole period.

In conclusion, the court imposed a sentence on Dempsey with a modest adjustment to the non-parole period, reflecting the mid-range objective seriousness of the crime, the substantial impact on the victim's family, and the need for deterrence. The court's decision underscored the importance of balancing the gravity of the offence with the specific circumstances of the case, including the victim's and the offender's background, while ensuring that the sentence served the dual purposes of punishment and deterrence.

Orders