R v Walker (No 8)

This matter was listed for sentencing on 16 November 2017, Mr Walker having been convicted in August 2017 by a jury, of the murder of his partner, Linda Locke, in April 2015.

After the matter was listed for sentence, the Court was notified that Mr Walker had been hospitalised. He did not appear for sentence in circumstances explained in an affidavit sworn by his solicitor, Ms Pearce, to which was annexed a letter from a treating doctor at Prince of Wales Hospital. The letter advised that Mr Walker had recently been diagnosed to be suffering from cancer; that his condition had deteriorated; and that his prognosis was very poor, there being no suitable treatment available for his condition. His lifespan was then thought to be short. Neither at the trial nor sentence hearing, had there been evidence that he was suffering such ill health.

By consent of the Crown, on 16 November, the matter was adjourned and I directed the parties to file written submissions, there being an issue between them as to whether sentencing could proceed in Mr Walker’s absence, without his consent. The Crown then accepted that Mr Walker should have the opportunity to instruct his counsel as to whether he wished to waive his right to be present when he was sentenced, before that issue was resolved.

Before today’s further listing, when that issue was due to be dealt with, the Court was notified that Mr Walker had died. That has removed the need to resolve the question of whether, in Mr Walker’s circumstances before his death, the Court could proceed to sentence him, even in his absence, given either his refusal, or inability to waive his right to be present, which the parties had addressed in their written submissions.

The Crown then filed a further written submission, in which it accepted that under the Crimes (Sentencing Procedure) Act 1999 (NSW), the Court could not now “sentence” Mr Walker, that being defined in s 3 to mean “the penalty imposed for an offence” and “sentencing court” there being defined to mean “in relation to an offender undergoing a penalty imposed by a court, means the court by which the penalty was imposed”. The word “penalty” is not defined in the Act and so takes its ordinary meaning. It is relevantly defined in the Macquarie Dictionary to mean “a punishment imposed or incurred for a violation of a law”.

In oral submissions the Crown also made reference to the purpose of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act which provides:

The Crown thus submitted that, once an unsentenced offender has died, the Court cannot impose any punishment upon him or her and, accordingly, the offender cannot be sentenced for the offences of which he or she has been convicted, nor can the sentencing remarks which would have been delivered if the offender still lived, be published.

It is s 4 of the Crimes (Sentencing Procedure) Act which specifies the penalty which may be imposed on an offender. Section 5 deals with penalties of imprisonment, providing:

I accept as the Crown submitted, that s 5 must be understood as contemplating that to sentence a person to a term of imprisonment, he or she must be alive to serve the intended sentence to be imposed by the Court, notwithstanding the provision made in s 5(4) and the other purposes of sentencing specified in s 3A.

Mr Walker had been in custody, bail refused, since his arrest in April 2015. On the evidence, before his death, he received the treatment he required for his condition in hospital, after his conviction of Ms Locke’s murder. That accorded with the principle that offenders may not escape punishment because of the condition of their health and that it is the responsibility of correctional services authorities to provide appropriate care and treatment for sick prisoners: R v Achurch (2011) 216 A Crim R 152; [2011] NSWCCA 186 at [135].

It is the State Parole Authority which may direct the release of an offender on parole, before the offender's eligibility date, if an offender is dying, or if the Authority is satisfied that it is necessary to release the offender on parole, because of exceptional circumstances: Crimes (Administration of Sentences) Act 1999 (NSW), s 160(1). The Crown’s prerogative of mercy is also preserved by s 270 of that Act. None of these discretions were exercised in Mr Walker’s case and so he died in custody.

It was also the Crown's case that, despite Mr Walker's death, on this occasion it was open to the Court to make some observations about his offending, even though the sentencing remarks which would have been delivered, had he lived, cannot be published. I agree. Accordingly, I make the following observations:

Had Mr Walker’s sentencing proceeded, given the seriousness of Mr Walker’s offence; his moral culpability for that offending; how the factual issues lying between the parties had to be resolved; the applicable statutory guideposts provided by the maximum sentence imposed by the Crimes Act 1900 (NSW) for the offence of murder, namely, life imprisonment and the standard 20 year non-parole period fixed for such offences; the applicable sentencing principles; the evidence on which Mr Walker was to be sentenced, including as to the factual matters over which the parties had joined issue and his personal circumstances – a very considerable sentence would have been imposed upon Mr Walker.

While Mr Walker’s death has precluded a sentence being imposed upon him, it has also established that even if he had been sentenced on 16 November 2017, he would not have lived to serve much more of the sentence, which he had effectively been serving since his arrest in 2015.

Accordingly, all that now remains for the Court to do is to deal with the victim impact statements which were received at the sentencing hearing and which I considered before sentence, in accordance with s 28 of the Crimes (Sentencing Procedure Act).

At the sentence hearing four very moving victim impact statements were read out in open court, one made by Ms Locke’s mother, another by her father, one by her sister and another by her daughter, who had been called to give what was obviously very painful evidence at trial, about domestic violence she had observed Mr Walker inflict on her mother, in the past. That the consequences of all of these difficult experiences have been particularly hard for her, was very obvious from her evidence and her statement.

Even though because of Mr Walker’s death, he cannot now be sentenced, I am satisfied that it should still be said in open court, that it has long been recognised by the law, that all human life is precious and that the death of any person is a harm which an offender inflicts, not only on the victim and the victim’s family, but also on the community generally. Further, domestic violence related crime is particularly abhorred: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [55].

From the evidence received at trial, it was obvious that the tragic reality is that Ms Locke’s death was not only unnecessary, but also truly awful, resulting as it did from the acts of her partner, against whom she was finally defenceless and from whom she did not then receive the help he should have given her, when she so desperately needed it and when it could have been so easily given.

One human life cannot be valued over that of another. Nevertheless, in this case the victim impact statements which were read to the Court shed considerable light on the harm which Ms Locke’s murder had done to her family, especially her daughter. No one who heard those statements read that day, could have failed to be moved by them.

To Ms Locke’s family and friends I thus offer my very deepest sympathy for their awful loss, as well as what they have had to endure during these proceedings and what, particularly for them, will be an unwelcome conclusion to that process.

What her family, in particular, must continue to bear, not only as the result of her death, but also as the result of the dreadful way that it was brought about, is no doubt very difficult for others to comprehend. Their very difficult situation is, however, acknowledged. Their suffering is not overlooked by the community of which we are all members, but rather is recognised today.

It is to be hoped that the proceedings will still give them all some small measure of comfort, revealing as they do how our society and the legal system it has created, operates to deal with awful offending of the kind which Ms Locke’s murder involved, even though the final step intended by this process, the imposition of a sentence on Mr Walker, could not be taken by the Court because of his unexpected death.