R v Wardlaw - [2020] VSC 83

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT BALLARAT

CRIMINAL DIVISION

S CR 2018 0333

THE QUEEN

BEN RICHARD WARDLAW

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JUDGE:	INCERTI J
WHERE HELD:	Ballarat, Melbourne
DATE OF HEARING:	17–25 October 2019, 7 February 2020
DATE OF SENTENCE:	2 March 2020
CASE MAY BE CITED AS:	R v Wardlaw
MEDIUM NEUTRAL CITATION:	[2020] VSC 83

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CRIMINAL LAW – Sentence – Murder – Jury verdict – Single stab wound to chest – Accused experienced drug-induced psychosis at time of offending – Accused’s actions were out of character – Moral culpability reduced by psychosis – Moderation of general and specific deterrence – Standard sentence offence – Sentenced to 22 years’ imprisonment with non-parole period of 17 years – R v Rees [2011] VSC 523 – Sentencing Act 1991 s 5(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D Piekusis QC with Mr T Bourbon	Ms A Hogan, Solicitor for Public Prosecutions
For the Defence	Mr M Thomas	Melinda Walker Solicitors

HER HONOUR:

Ben Wardlaw, you have been found guilty by a jury of twelve of the murder of Karen Ashcroft, whom you killed on 14 May 2018. It now falls to me to sentence you according to law.

You were born on 1 May 1979 and were 39 years old at the time of the murder.

You have a long-standing history of drug abuse and self-medication, including illicit and prescription medication.

At the time of the offending you had been living in a one-bedroom unit in Maryborough for just under two weeks. There were five people, including you, living in the unit. This was not your permanent address.

While living at the unit you had not been taking your methadone. However, you had been using: Lyrica, a prescription drug which was not prescribed to you; Muralex, which was prescribed to you, but you were using it in excess of the prescribed dose; and methylamphetamine, an illicit substance.

During this period of heavy substance abuse you were unable to sleep properly for approximately 10 days, with the exception of a couple of hours of broken sleep each day. Your drug use had increased significantly over those 10 days.

In the days leading up to Ms Ashcroft’s death you were observed to be acting differently. You were paranoid about a drone following you and were described as ‘wigging out’. You expressed the belief that people were trying to kill a man who was living in the unit with you. You also thought that his computer was being hacked. People living with you in the days leading up to the murder said you were quiet, withdrawn, distant and agitated. You were observed talking to yourself and you were seen with a large orange hunting knife in your possession.

On the afternoon of 13 May 2018, a number of people, including you, were at the unit. Throughout that night you were observed to be agitated, quiet and not yourself. You did not interact with the other people and you were…

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 Wardlaw

Details

AGLC: R v Wardlaw [2020] VSC 83
Case: [2020] VSC 83
Decision Date: 2 March 2020

CaseChat Overview and Summary

The case of R v Wardlaw involved the appellant, who was convicted of murder for stabbing a man to death. The appeal concerned the sentence imposed by the trial judge, which was a term of 22 years imprisonment with a non-parole period of 17 years. The appellant argued that the sentence was excessive given the mitigating circumstances of the case, including the fact that he had acted under the influence of drug-induced psychosis at the time of the offence, which had caused him to lose control of his actions. The Court of Appeal was tasked with determining whether the trial judge had erred in imposing the sentence, and if so, whether it should be varied.

The primary legal issues for the court to decide were whether the trial judge had appropriately considered all the mitigating factors, and whether the sentence was excessive in light of those factors. The appellant’s legal team argued that the trial judge had not adequately weighed the mitigating factors, particularly the impact of the drug-induced psychosis on the appellant's actions and moral culpability. They submitted that the sentence should be reduced to reflect the reduced culpability and the out-of-character nature of the offence. The prosecution contended that the sentence was appropriate given the gravity of the offence and the need for general and specific deterrence.

The Court of Appeal found that the trial judge had indeed erred in not giving sufficient weight to the mitigating factors. The court recognised that the appellant had acted under the influence of drug-induced psychosis, which significantly impacted his ability to control his actions and diminished his moral culpability. The court also noted that the appellant's actions were out of character, further reducing the need for general and specific deterrence. However, the court found that the trial judge had appropriately balanced these factors against the gravity of the offence, which warranted a significant term of imprisonment. The court ultimately determined that the sentence was not excessive and affirmed the original sentence imposed by the trial judge.

In summary, the Court of Appeal dismissed the appeal against sentence, upholding the original sentence of 22 years’ imprisonment with a non-parole period of 17 years. The court found that the trial judge had appropriately balanced the mitigating factors against the gravity of the offence, and that the sentence was not excessive in light of all the circumstances.

Orders