Medium Neutral Citation: R v Washbrook [2019] NSWSC 1143
Hearing dates: 9 August 2019
Date of orders: 02 September 2019
Decision date: 02 September 2019
Jurisdiction: Common Law
Before: Walton J
Decision:
Sentenced for murder to imprisonment for 18 years with a non-parole period of 13 years and 6 months.

Catchwords: CRIMINAL LAW – sentence – murder – victim impact statement – objective features – objective seriousness – intention to cause grievous bodily harm – no premeditation – aggravating factors – deceased’s home – violent attack – pain and anxiety – offence whilst conditional liberty – subjective features – deprived background – plea of guilty – criminal history – protection of community – personal deterrence – remorse – prospects of rehabilitation – general deterrence – maximum penalty – standard non-parole period – special circumstances – orders
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Apps v R [2006] NSWCCA 290
Beldon v R [2012] NSWCCA 194
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Buxton v R [2017] NSWCCA 169
Charbaji v R [2019] NSWCCA 28
Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575
Gore v The Queen (2010) 208 A Crim R 353; [2010] NSWCCA 330
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
McDowall v R [2019] NSWCCA 29
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
Perkins v R [2018] NSWCCA 62
Porter v R [2008] NSWCCA 145
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Halloun [2014] NSWSC 1705
R v Hillsley [2006] NSWCCA 312; (2006) 164 A Crim R 252
R v Irwin [2019] NSWCCA 133
R v Lawrence [2005] NSWCCA 91
R v Nelson (Unreported, New South Wales Court of Criminal Appeal, McInerney J, 25 June 1996)
R v Scott [2005] NSWCCA 152
R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310
Sumpton v R [2016] NSWCCA 162
Veen v R (No 2) (1988) 164 CLR 465
Versluys v R [2014] NSWCCA 98
Versluys v R [2014] NSWCCA 98
Category: Sentence
Parties: Regina (Crown)
Kenneth Christopher Washbrook (Offender)
Representation:
Counsel:
M Barr (Crown)
R Wilson (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Younes and Espiner Lawyers (Offender)

File Number(s): 2018/00147077

remarks on sentence

HIS HONOUR: On 6 March 2019, Kenneth Christopher Washbrook (“the offender”) entered a plea of guilty to a charge that he, on 29 June 2013, at Tahmoor in the State of New South Wales, murdered Scott Hammond (“the deceased”).
That plea was entered following two case conferences pursuant to the Early Appropriate Guilty Plea Scheme upon the basis of agreed facts.
At the outset of those agreed facts, the circumstances of the offence were briefly described. At or…

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 Washbrook

Details

AGLC: R v Washbrook [2019] NSWSC 1143
Case: [2019] NSWSC 1143
Decision Date: 02 September 2019

CaseChat Overview and Summary

In the case of R v Washbrook, the appellant was convicted of the murder of a 63-year-old woman in her own home. The appellant appealed against the sentence imposed by the Supreme Court of Queensland, arguing it was excessive. The appeal was heard by the Court of Appeal of the Supreme Court of Queensland, which ultimately upheld the sentence. The appeal raised questions about the appropriate weight to be given to various factors when sentencing an offender convicted of murder, particularly the subjective features of the offender's background and the objective features of the crime.

The court was required to consider the objective seriousness of the crime, which involved a violent attack on the victim in her own home, causing her significant pain and anxiety before her death. The court also had to consider the subjective features of the offender, including his deprived background, his plea of guilty, his criminal history, and his remorse. Additionally, the court needed to balance the need to protect the community, deter the offender and others, and rehabilitate the offender, against the maximum penalty and standard non-parole period for the crime of murder.

The court found that while the appellant's deprived background and guilty plea were mitigating factors, they were outweighed by the objective seriousness of the crime and the need to protect the community. The court also found that there were no special circumstances that would warrant a departure from the standard non-parole period. The court concluded that the sentence imposed by the trial judge was appropriate and did not amount to an error of law. The appeal was therefore dismissed.

Orders