R v LN; R v AW (No. 10) - [2017] NSWSC 1387

Supreme Court

New South Wales

Case Name:	R v LN; R v AW (No. 10)
Medium Neutral Citation:	[2017] NSWSC 1387
Hearing Date(s):	11 August 2017
Date of Orders:	12 October 2017
Decision Date:	12 October 2017
Jurisdiction:	Common Law
Before:	Johnson J
Decision:	With respect to LN: For the crime of murder, LN is sentenced to imprisonment for a term of 44 years, comprising a non-parole period of 33 years commencing on 15 September 2014 and expiring on 14 September 2047, with a balance of term of 11 years commencing on 15 September 2047 and expiring on 14 September 2058. The earliest date upon which LN will be eligible for release on parole is 15 September 2047. With respect to AW: For the crime of murder, AW is sentenced to imprisonment for a term of 40 years, comprising a non-parole period of 30 years commencing on 17 September 2014 and expiring on 16 September 2044, with a balance of term of 10 years commencing on 17 September 2044 and expiring on 16 September 2054. The earliest date upon which you will be eligible for release on parole is 17 September 2044.
Catchwords:	SENTENCING – sentence following trial – murder of three-year old child by mother and stepfather - mother killed child – stepfather guilty by application of principles of extended joint criminal enterprise – joint criminal enterprise between mother and stepfather to assault child over 51-day period before murder occurred – extensive emotional and physical abuse over 51-day period before murder occurred – fatal injuries committed by mother attacking the child in a manner involving substantial acceleration/deceleration forces – parents stated injuries occurred by tripping - pattern of assaults taken into consideration in assessing objective seriousness – victim impact statements of extended family considered – objective seriousness determined as very significantly above mid-range for mother – objective seriousness determined as significantly above the mid-range for stepfather – mental illness of mother considered – hardship of likely protective custody for both parents considered – statutory threshold for life sentences in s.61(1) Crimes (Sentencing Procedure) Act 1999 not met – standard non-parole period of 25 years - sentence of 44 years with a non-parole period of 33 years imposed on mother – sentence of 40 years with a non-parole period of 30 years imposed on stepfather – consideration as to whether “de facto” life sentences
Legislation Cited:	Children (Criminal Proceedings) Act 1987. Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes (High Risk Offenders) Act 2006
Cases Cited:	Baines v R [2016] NSWCCA 132 Einfeld v R (2010) 200 A Crim R 1; [2010] NSWCCA 87 Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 R v Hill [2014] NSWSC 1010 R v Isaacs (1997) 41 NSWLR 374 R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 R v LN; R…

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.

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Details

Case: [2017] NSWSC 1387
Decision Date: 12 October 2017

CaseChat Overview and Summary

In this case, the defendants, LN and AW, were convicted of the murder of a three-year-old child. LN, the child's mother, directly killed the child, while AW, the stepfather, was found guilty through the application of principles of extended joint criminal enterprise. This decision concerns the sentencing of both defendants. The key legal issues before the court were whether the statutory threshold for life sentences under section 61(1) of the Crimes (Sentencing Procedure) Act 1999 was met, and the appropriate length of the sentences and non-parole periods for both LN and AW.

The court examined the objective seriousness of the offence, the moral culpability of the offenders, their subjective circumstances, and other relevant factors to determine whether the statutory criteria for life sentences were met. The court found that while the crime was heinous, LN's level of culpability did not reach the extreme threshold required for a life sentence. The court determined that the objective seriousness of the offence was very significantly above the mid-range, but the combined effect of the statutory indicia of retribution, punishment, community protection, and deterrence did not necessitate a life sentence. Similarly, the court found that AW's level of culpability, although significant, did not warrant a life sentence. The court considered the pattern of assaults over a 51-day period, the mental illness of LN, and the hardship of protective custody for both parents. Ultimately, the court imposed a sentence of 44 years with a non-parole period of 33 years for LN, and a sentence of 40 years with a non-parole period of 30 years for AW.

The final orders of the court were that LN was sentenced to 44 years imprisonment with a non-parole period of 33 years, and AW was sentenced to 40 years imprisonment with a non-parole period of 30 years. The court did not impose life sentences on either defendant, finding that the statutory threshold for such sentences had not been met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Ms Moen submitted that a life sentence should not be imposed in the case of AW. It was submitted that his liability for murder was secondary, arising from application of the principles of joint criminal enterprise and extended joint criminal enterprise. Whilst AW had assaulted Joseph on a number of occasions in the Oberon house and was aware of many of LN’s assaults upon him as well, it was submitted that it was only shortly before 3 August 2014 that he became aware of LN’s thought processes concerning a desire to kill Joseph. Having regard to all the circumstances of the case, including AW’s lack of prior criminal history, his health issue and his need for protection in custody, it was submitted that the Court should proceed to fix a determinate sentence which would in turn have regard to all these features.Decision It is for the Crown to prove beyond reasonable doubt that this is a case which attracts imposition of a sentence of imprisonment for life in accordance with the statutory criteria in s.61(1) Crimes (Sentencing Procedure) Act 1999 with respect to one or other, or both of the Offenders. It has been said that the primary focus of s.61(1) is directed towards how extreme an offender’s culpability is, with the need for the Court to find features of great or very great heinousness, along with the absence of any facts mitigating the seriousness of the crime: R v Merritt at 570 [52]. The principles to be applied when s.61(1) is under consideration were set out in Knight v R (2006) 164 A Crim R 126; [2006] NSWCCA 292 at 139-140 [23]. It is the combined effect of the four indicia in s.61(1) which is critical, and the absence of any one or more of the indicia of retribution, punishment, community protection and deterrence may operate to make it more difficult for a sentencing Judge to reach the conclusion that a life sentence is required, although it will not be determinative. I keep in mind that the High Court of Australia has said that a sentencing court should avoid the use of terms such as “worst category” or “worst case” unless the offence in question is so grave as to warrant the imposition of the maximum penalty for the offence: The Queen v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at 137 [18]-[20]. With respect to LN, I have taken into account the objective gravity of the offence, LN’s moral culpability, her subjective circumstances and lack of prior criminal history, together with the need for general deterrence and other factors to which reference has already been made in these remarks. This was a terrible crime of child murder. Confining attention to factors which bear upon an assessment of the objective seriousness of the offence for the purpose of considering the role of the standard non-parole period as a statutory guidepost, this was an offence which lay very significantly above the mid-range of objective seriousness in the case of LN. Considering more broadly issues bearing on sentence, including her moral culpability, subjective circumstances and other factors relevant to an assessment of whether a life sentence should be imposed for the purpose of s.61(1), I am not satisfied beyond reasonable doubt that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of a life sentence.

Ratio Decidendi

Legal Principle Established

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