Should Sentences be More Severe Where the Victim is “Vulnerable”?

Print Friendly, PDF & Email

By Paul Gregoire and Ugur Nedim

On 2 June 2015, the NSW Supreme Court found Andrew Mervyn Sumpton guilty of the “spontaneous but brutal” murder of Michelle Roberts. He was also convicted on two counts of arson for burning down Ms Roberts’ South Grafton house, along with all her property.

For the two arson charges, Justice Hamill sentenced Sumpton to four years imprisonment. For the murder, he received 27 and a half years. The sentences ran partially concurrently, and Mr Sumpton was sentenced to a maximum of 29 years prison time, with a non-parole period of 20 years and six months.

The “sexually charged attack” occurred in the early hours of 18 May 2012. Sumpton and Roberts met for the first time the day prior and they’d been drinking heavily. At the time of the murder, they were both “extremely intoxicated.”

The two engaged “in sexual activity of an unknown kind” in Ms Roberts’ bedroom. It remains unclear, but it’s suspected that either Ms Roberts denied Sumpton’s sexual advances, or Sumpton was unable to achieve an erection, and this led to the violent outburst.

The use of blunt force

Mr Sumpton used two weapons to attack Ms Roberts. Whilst on top of her, he hit her in the face twice with a statue, inflicting “significant blunt force trauma to her face.” This broke her nose and dislodged several of her teeth.

The killer then used a knife to stab Ms Roberts 24 times around the chest, abdomen and groin area. It was found that the wounds around her groin revealed that “the murder had a significant sexual motivation.”

It’s believed that Sumpton fled the scene and returned home. However, after the enormity of his actions dawned upon him, he returned to Ms Roberts’ house, placed sheets under her body and lit them on fire.

After the house was ablaze, Sumpton raised the alarm, knocking on a neighbour’s door and asking them to call the fire brigade. The attending fire fighters and police officers felt that Sumpton was acting suspiciously.

A vulnerable victim

Michelle Roberts was of slight build, weighing only 54 kilograms. She also had a pronounced limp. Her disability required that she walked with a cane.

It is believed she fought back during the attack, as Sumpton had a number of scratch marks on his back, and traces of his DNA were found under her Roberts’ fingernails.

Much was made of Ms Roberts’ “Asian appearance” during the trial, as it was argued that Mr Sumpton had an attraction to “women of Asian appearance.” This was supported by his former partner, who stated that Sumpton liked to watch Asian porn, and by another friend, who said that Sumpton had once sought the services of an Asian sex worker.

NSW Court of Criminal Appeal (NSWCCA)

Mr Sumpton appealed to the NSWCCA on several grounds.

These included that the directions given by the trial judge in relation to circumstantial evidence were not specific enough, the claim that “alibi” evidence should have been proven false, that tendency evidence was wrongly admitted and there was an absence of direction from the judge regarding evidence delivered by key witnesses.

All of these grounds were either refused or dismissed.

Mr Sumpton also appealed on the basis that the judge neglected to consider a psychiatric report by Dr Olav Nielssen. The doctor outlined in his report that he believed Sumpton was suffering from alcohol-related brain damage.

However, no miscarriage of justice was found to have occurred on that basis.

An above middle range offence

A further ground relied upon by Sumpton was that the trial judge had made an error when considering the “object seriousness” of the offence.

Justice Hamill of the NSWCCA rejected the finding that the crime was in the worst category of murder offences, finding instead that it lay “comfortably above the middle range of object seriousness.”

But as Ms Roberts was disabled and of slight frame, His Honour found that the crime was aggravated by her vulnerability pursuant to section 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides:

“(l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim’s occupation (such as a taxi driver, bus driver or other public transport worker, bank teller or service station attendant)”.

Justice Hamill also found the victim was also vulnerable because her condition did not allow her to run away in response to the attack. His Honour found that the use of two weapons was another aggravating factor.

He noted that the attack took place in the victim’s home, but found this was not an aggravating factor. However, the burning of the victim’s corpse was, although the mutilation of the body was not as heinous, as it had been in other cases.

Plea for a lighter sentence

Mr Sumpton’s legal team conceded that Ms Roberts’ build and her disability made her vulnerable. However, they argued that this should not be considered an aggravating factor in this case, as the blunt force trauma delivered by Sumpton’s blows would have equally affected a sober person who was not suffering from a disability.

They submitted that the fact Ms Roberts couldn’t run away “did not lend any weight to the objective seriousness of the offending,” as there was no evidence that she was attacked whilst she was trying to flee her assailant.

They further argued that the use of two weapons did not impact upon the seriousness of the crime.

They additionally submitted that even though the sentencing judge did not find that the fact the incident occurred within the home was an aggravating factor, they believed it was an error for it to be mentioned at all. They further said that the treatment of the corpse should not have been considered, as there was no evidence of desecration.

The appeals court on vulnerability

The NSWCCA disregarded the argument about the attack occurring at the victim’s house, and pointed out that the sentencing judge had already made a distinction about the severity of the corpse’s treatment.

As to the weapons, the court found that it was “a matter of commonsense,” that the use of two weapons to inflict multiple injuries necessarily” aggravated the seriousness of a crime.

On the vulnerability of the victim, the court decided that this does indeed aggravate a crime. “The fact that there may not have been evidence to support a conclusion that the deceased’s vulnerability contributed to her death is not the point,” the court remarked.

“The engagement of section 21A(2)(l) does not depend upon there being a causal connection (in the case of murder) between vulnerability and death,” he added.

The court therefore dismissed this ground of appeal as well.

Author Image

About Sydney Criminal Lawyers

Sydney Criminal Lawyers® is Australia's Leading Criminal Defence Law Firm, Delivering Outstanding Results in All Australian Courts. Going to Court? Call (02) 9261 8881 for a Free Consultation.

Leave a Comment




*