Murderer Given Lesser Sentence for “Unexplained Killing”

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By Paul Gregoire and Ugur Nedim

On 19 July 2005, a 16-year-old boy known as DL followed a 15-year-old girl into the carpark of a motel on the Central Coast. It was the first day of school term and the girl was cutting through the property on her way home having just alighted from the school bus.

The boy, who was from the same school as the girl, stabbed her 48 times with a small bladed knife. Having been attracted by the noise of the attack, a guest from the motel appeared and saw DL sitting on top of the girl who was lying on her back and told him to stop.

DL was heard to state his name, high school and what class he was from before fleeing the scene of the crime. And the police arrived at his house that evening and arrested him. DL denied having committed the murder or having any memory of it taking place.

A senseless killing

A NSW Supreme Court jury found DL guilty of murder on 27 March 2008. Section 18 of the Crimes Act 1900 stipulates that the maximum penalty that applies to this offence is life imprisonment.

The crime of murder also carries a standard non-parole period (SNPP) of 25 years in the case of the victim being under 18. An SNPP is a reference point for the sentencing judge when determining the minimum time a person must spend behind bars before being eligible to apply for release on parole.

The Supreme Court found that DL’s actions defied “rational explanation”. Based on psychiatric evidence before him, Justice Robert Hulme concluded that the offender was suffering from schizophrenia at the time of the attack.

The sentencing judge made clear he was not willing to find that DL was anything other than fully aware of the consequences of his actions due to his age or disability, but he was not satisfied that the boy had the intention of killing the girl.

As was the practice of the time, Justice Hulme gave primary consideration to the SNPP on sentencing. DL was ultimately sentenced to 22 years behind bars with a non-parole period of 17 years.

The Muldrock error

Last year, DL appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA). He did so on the ground that the sentencing judge had made an error when placing such significance upon the SNPP during sentencing. This is known as the Muldrock error.

In the 2011 case Muldrock versus the Queen, the High Court of Australia found that a sentencing judge makes an error if they approach the SNPP as the standard sentence for a mid-range offence, and then look for mitigating and aggravating factors as to why they shouldn’t apply it.

The NSWCCA ruled that the sentencing judge did indeed make the Muldrock error. Despite this finding, the court dismissed the appeal against the sentence on 13 April last year, stating that in accordance with section 6(3) of the Criminal Appeal Act 1912, no lesser sentence was warranted.

A further error in judgement

The appeals court based its decision upon a 2010 psychiatric registrar’s report that stated DL was not suffering from schizophrenia, but rather a form of autism. From this observation, the NSWCCA concluded that the offender was aware he was committing the act of murder.

DL then appealed this decision to the High Court of Australia in August this year. The High Court justices set aside the judgement of the NSW appeals court on the basis that the court had engaged in “procedural unfairness”.

The High Court found it was unfair of the appeals court to have decided not to resentence based on new evidence that had not been before the primary judge. The matter was then remitted to the NSWCCA for redetermination.

Standard non-parole periods

In November, the NSWCCA reconsidered DL’s case. Justice John Basten outlined that standard non-parole periods were introduced on 1 February 2003, and only apply to offences committed on or after that date.

In January 2008, a new SNPP of 25 years was introduced for murder in cases where the victim is under the age of 18. This applied to all such offences, unless an offender had already been convicted or entered a plea of guilty.

From January 2009, SNPPs no longer applied to offenders who committed their crimes when they were under 18 years of age. This provision is found under section 54D(3) of the Crimes (Sentencing Procedure) Act 1999.

The High Court noted that at the time the NSWCCA first considered resentencing, an SNPP didn’t apply. However, Justice Basten pointed out that section 54D doesn’t affect a sentence imposed prior to the commencement of the amendment.

His Honour then explained that the question at hand was whether DL should be resentenced in accordance with the laws as they stood at the time of his trial or as they apply now. In considering prior cases, he found they should be applied in a way that “operates favourably to the offender”.

Eligible to apply for parole

Justice Basten stated that it was clear the primary judge would have imposed a lesser non-parole period had the SNPP not applied. It was also the case that the NSWCCA found no lesser sentence was warranted based on new evidence that increased the offender’s moral culpability.

According to his Honour, special circumstances should also have been found based on the offender’s age, his mental condition, the absence of a criminal record, and the fact that it was his first time in prison.

Section 44 of the Crimes (Sentencing Procedure) Act 1999, requires that a parole period mustn’t exceed one-third of the period spent behind bars, unless special circumstances are found, in which case the time spent in custody can be shorter to allow for a longer time spent on parole.

On 21 December this year, Justice Basten ordered that DL be resentenced to 18 years behind bars, with a non-parole period of 13 years. This meant the offender was eligible to apply for parole as of last July.

NSWCCA Justice Monika Schmidt and Justice Des Fagan agreed with the orders.

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