R v Douglass (No 2) - [2023] NSWSC 465

Supreme Court

New South Wales

Medium Neutral Citation: R v Douglass (No 2) [2023] NSWSC 465
Hearing dates: 2 February 2023
Decision date: 12 May 2023
Jurisdiction: Common Law
Before: Ierace J
Decision:
The offender is sentenced to a term of imprisonment comprising a non-parole period of 19 years and 6 months and a balance of term of 6 years and 6 months, being a total sentence of 26 years, to date from 5 October 2016 and to expire on 4 October 2042. The offender will become eligible for release to parole when the non-parole period expires on 4 April 2036.

Catchwords:
SENTENCING – Murder – Sentence after judge-alone trial – Where offender entered elderly deceased's house with a co-offender to steal money – Deceased fatally stabbed by both offender and co-offender – Offender returned to search for money in months before deceased's body discovered – Application of Bugmy v The Queen principle – Offender exposed to childhood physical violence and drug abuse – Complex PTSD contributed to offending to limited extent – No mitigatory remorse – Good prospects of rehabilitation

Legislation Cited:
Crimes Act 1900 (NSW), ss 19A, 112, 154F
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 21A, 33, 61
Criminal Procedure Act 1986 (NSW), ss 132, 166
Firearms Act 1966 (NSW), ss 51H, 65

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Douglass v R [2020] NSWCCA 284
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA
DS v R; DM v R [2022] NSWCCA 156
McCullough v R (2009) 194 A Crim R 439; [2009] NSWCCA 94
R v Bedford (1986) 5 NSWLR 711
R v Douglass (No 4) [2019] NSWSC 366
R v Douglass (No 1) [2022] NSWSC 1287
R v Gilmore (1979) 1 A Crim R 416
R v Wilkinson (No 5) [2009] NSWSC 432
Tarrant v R [2007] NSWCCA 124
Tepania v R [2018] NSWCCA 247

Category: Sentence
Parties: Rex
Ammie Douglass (Offender)
Representation:
Counsel:
Mr M Pincott (Crown)
Mr T Jones (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Bannisters Lawyers (Offender)

File Number(s): 2016/197051
Publication restriction: Pseudonyms used to reflect non-publication orders made on 27 November 2018; 3 August 2022; and 26 September 2022

Judgment

HIS HONOUR: On 22 August 2022, Ammie Douglass (the offender), was arraigned before me on a count that between 6 August 2016 and 12 August 2016, at Lithgow, she murdered Christopher Whiteley (the deceased), to which she entered a plea of not guilty. The trial, which was conducted at Bathurst, was by judge alone, pursuant to s 132(2) of the Criminal Procedure Act 1986 (NSW). On 9 September 2022, I retired to consider my verdict. On 26 September 2022, I returned a verdict of guilty: R v Douglass (No 1) [2022] NSWSC 1287 (the verdict judgment). The sentence hearing was on 2 February 2023. Supplementary written submissions were received from the parties in mid-February…

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 Douglass (No 2)

Details

AGLC: R v Douglass (No 2) [2023] NSWSC 465
Case: [2023] NSWSC 465
Decision Date: 12 May 2023

CaseChat Overview and Summary

In R v Douglass (No 2), the offender was convicted of murder following a trial by a judge alone in the Supreme Court of South Australia. The offence arose from a home invasion with a co-offender where the elderly deceased was fatally stabbed. The deceased's body was not discovered for months, during which the offender returned to the premises to search for stolen money. The case required the court to consider the appropriate sentence for the offender, taking into account the principles established in Bugmy v The Queen, the offender's background, and prospects of rehabilitation.

The primary legal issue before the court was the appropriate sentence to impose on the offender, taking into account the totality principle and the need to ensure just punishment and deterrence. The court needed to consider the offender's background, including exposure to childhood physical violence and drug abuse, and how these factors contributed to the offending behaviour. The court also needed to assess the extent to which the offender's complex post-traumatic stress disorder contributed to the offence, as well as the lack of remorse shown by the offender. Additionally, the court had to consider the offender's prospects of rehabilitation.

The court determined that the offender's background and mental health issues contributed to the offending behaviour to a limited extent. However, these factors were not sufficient to significantly mitigate the gravity of the offence. The court also noted that the offender had shown no remorse, which was a significant aggravating factor. Despite this, the court recognised the offender's good prospects of rehabilitation, which was a mitigating factor. The court ultimately imposed a sentence that balanced the need for punishment, deterrence, and rehabilitation, taking into account all the relevant factors.

The final orders of the court included a sentence of imprisonment with a non-parole period, reflecting the court's determination that the offender's background and mental health issues contributed to the offence to a limited extent, but did not sufficiently mitigate the gravity of the crime. The court emphasised the importance of deterrence and rehabilitation in its sentencing decision.

Orders