Wednesday, 19 April 2017

Australian Court Series ; R V Adams



This case is interesting as it is a case taking place in 2017 for a murder in 1983. Unlike some criminal acts murder has no statute of limitation – or expiry date, after which the prosecution can no longer prosecute. The maximum penalty for murder, all around Australia, is Life imprisonment, so that is the penalty that many heinous crimes are given. However, as this is a murder from 1983, the court had to apply the law from the time. This was that the imprisonment for life was a mandatory sentence. At [4] Justice Button acknowledge that ‘the maximum penalty as it existed in 1983…speaks for itself with regard to the gravity with which the unlawful taking of the life of a fellow human being…was and is assessed by parliament and the community that it represents.’

The case facts, as recounted, are that in 1983 the offender offered the deceased a lift home. The deceased was drunk and had believed the false representations of the man that he was a police officer. He then drove her a short distance away, and possibly during intercourse – the facts are not agreed upon – he crushed her windpipe, killing the deceased. Her body was then stored in the boot and the offender took steps to clean the evidence. There was evidence adduced at trial that the offender had a history of strangling sexual partners who refused his advances.

This case is interesting as the judge was not required to determine guilt but relative seriousness of the offence. There were two opposing facts of the case that made this determination difficult the first was that the case was more serious because the offender had invaded the woman’s sexual autonomy and the murder took place during an act that was obviously dangerous to human life given her own level of intoxication.

The second fact that goes in favor of the offender is that the murder was unintended. There is a general acceptance that premeditated, assessed and planned murder is of greater seriousness than a murder occurring in the spur of the moment.

That being said at [16] the judge determined that while I appreciate the force of what defence counsel has said about the breadth of the concept of felony murder, this offence against a young woman in the prime of her life, simply for the sexual gratification of the offender, cannot be assessed as anything other than extremely grave.’

When sentencing the judge took into account the following;

-        Plead not guilty, resulting in no utilitarian discount
-        No mitigating factors
-        Has not shown remorse
-        Has not accepted responsibility
-        Previous rapes of similar description
-        His age is now 64
-        He has not been convicted of anything since 1974

Around the world legal courts have also become live to the issue that the considerable delays between getting arraigned, trial and sentence amount to some degree in delay of justice. In Canada it was determined that that a four year delay would be sufficient to constitute a delay of justice. However, this has not yet been determined in Australia.; R v Jordan.  

In this case it was discussed from [29-31] how the delay of justice proposition may apply to the offender. While he acknowledged that there was a strong between the murder and the charges, it was not by process of the law or deliberate delay of the authorities rather, and to use his honors own words, the matter is not to be equated with a case in which the charging of a person is delayed [or] he or she exercises his or her right to silence. Instead the delay in the resolution of the matter is to a large degree, attributable to the offender. [31]. It was determined that the delay should reflect to a limited degree the sentence.

Further to the determination of sentencing, it became at issue how the mandatory sentence of life imprisonment was to be treated. While it is no longer mandatory, it has come to be accepted in the court that the law does not operate retrospectively and the law that is in place at the time of the offence is that law that must apply to the offence; R v  Magnuson. However, it was hardly a year later that the law was changed. Meaning that the mood of the times when the crime was committed was not significantly different. Moreover, his honor acknowledged that it was general practice for crimes of a similar nature to serve 11 to 10 years before being released on parole. This inferenced a standard of treatment that the offender may have appealed to.

Then a similar case, not committed by the offender, R v Fleming was raised by defence as a potential sentencing guide. It accounted for an imprisonment of 21 years with a non-parole period of 16 years.
It was also accepted that the sentence must reflect the time in custody spent prior to sentencing.

Final determination factors

There was a lack of
-        Intention to kill
-        Multiple murders
-        Prior murders
-        Not a contract killing

-        Act of heinous cruelty, indignity, torture or mutilation
This are important to note that they are not present because they are standard elements in todays courts, where the ultimate sentence is imposed. It was for that reason that his honor was not satisfied that a determinate sentence would fail to reflect the gravity of what the offender has done; s61 of the Crimes (Sentencing Procedure) Act. [54].

In Australia, because it is the adversarial system victims aren’t often invited to the stand to explain how things have impacted them personally. That being said the courts invite victim impact statements to be submitted to the judge. This is something that the court may consider when determining the sentence that is given to an offender. They are not compulsory and only discuss how the crime has impacted the

 individual;
-        Physically
-        Emotionally
-        Financially
-        Socially


His honor acknowledged that the two sisters who submitted impact statements spoke movingly of the pain that has been endured for decades as a result of the disappearance of the deceased...that pain had been made worse by not knowing precisely how she died. Many years ago, their parents went to their graves without any resolution of the mystery loss of their daughter.’

It was not made clear how exactly this added to the sentence, but it is inferenced that due to the serious impact the offender’s actions had upon the family of the deceased, his actions were deemed to be more serious than an act that had a lesser impact on the family.

Final Sentence

The offender was convicted of murder with a non-parole period of fifteen years and a parole period of 5 years, following the fifteen. This means that for fifteen years following this sentence the offender is ineligible to apply for parole. After that he is eligible to be released.

You can see that he has followed the guidance of R v Fleming and the general structure of sentences in which the non-parole period must be three quarters of the head sentence. 



Lulu Hensman