R v Walsh - [2018] NSWSC 1299

Supreme Court

New South Wales

Medium Neutral Citation: R v Walsh [2018] NSWSC 1299
Hearing dates: 10 August 2018
Decision date: 23 August 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Offender sentenced to imprisonment for life

Catchwords: CRIME – sentencing – murder – where prisoner killed cellmate during lock-down – fourth murder committed by same offender – offender already serving two life sentences for previous murders – assessment of level of culpability – whether so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of the maximum penalty – relevance of previous offences – absence of any significant mitigating factors
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 21A(2)(d), Pt 4 Div 1A Table item 1, 54D(1)(a) 61
Crimes Act 1900 (NSW), s 19A
Cases Cited: Pearce v R (1998) 194 CLR 610 [1998] HCA 57
R v Harris (2000) 121 A Crim R 342; [2000] NSWCCA 469
R v Kaewklom (No 3) [2013] NSWSC 59
R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19
R v Miles [2002] NSWCCA 276
R v Penisini [2004] NSWCCA 339
R v Rose [1999] NSWCCA 327
R v Walsh [2009] NSWSC 764
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Yeung v R [2018] NSWCCA 52
Category: Sentence
Parties: Regina
John Walsh (Offender)
Representation:
Counsel:
S Harris (Crown)
J Manuell SC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
PW & Associates Solicitors (Offender)

File Number(s): 2017/1853
Publication restriction: None

Judgment

HER HONOUR: John Walsh has pleaded guilty to the murder of Frank Townsend. He now stands to be sentenced for that offence. The maximum penalty for murder is imprisonment for life. [1] The offence carries a standard non-parole period of 20 years[2] which applies in the case of a determinate sentence but not where a life sentence is imposed. [3]
1. Crimes Act 1900 (NSW), s 19A(1).
2. Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A; Pt 4 Div 1A Table item 1.
3. Crimes (Sentencing Procedure) Act, s 54D(1)(a).
This is the second time I have sentenced Mr Walsh. In 2009, he pleaded guilty to the murder of his wife and two grandchildren and to causing grievous bodily harm to his daughter with intent to murder her. On that occasion, I sentenced him to imprisonment for life for the murder of each of the two children and imposed lengthy determinate sentences for the two other offences. [4] The victim of the present offence was a fellow prisoner with whom the offender had recently started sharing a cell while serving those sentences.
4. R v Walsh [2009] NSWSC 764.
In New South Wales, a person sentenced to imprisonment for life for the crime of murder must serve that sentence for the term of the person's natural life. [5] It follows that, as a result of the two life…

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 Walsh

Details

AGLC: R v Walsh [2018] NSWSC 1299
Case: [2018] NSWSC 1299
Decision Date: 23 August 2018

CaseChat Overview and Summary

The matter of R v Walsh involved the defendant, who was already serving two life sentences for previous murders, committing a fourth homicide during a lockdown in prison. The court was tasked with sentencing the offender for this latest crime. The primary legal issues were the appropriate level of culpability for the offence, and whether the circumstances were so extreme that the community interest in retribution, punishment, community protection, and deterrence could only be met through the imposition of the maximum penalty. Another significant consideration was the relevance of the offender's previous offences and the absence of any significant mitigating factors.

The court examined the nature of the offence, which was a premeditated and brutal act committed during a period of lockdown. It noted the offender's extensive criminal history, including two prior murders for which he was already serving life sentences. The court concluded that the level of culpability was very high and that the offence was extreme. The court held that the community interest in retribution, punishment, community protection, and deterrence could only be met through the imposition of the maximum penalty. The previous offences were considered relevant to the assessment of culpability, and the absence of any significant mitigating factors further supported the imposition of the maximum penalty.

As a result, the court sentenced the offender to life imprisonment for the fourth murder, with a non-parole period set by the court. The final orders of the court included that the offender serve the new life sentence concurrently with the two existing life sentences, with no possibility of parole until the non-parole period for the fourth murder had been served.

Orders