R v Dempsey

Agreed facts

1. The facts of the killing were set out in an agreed statement of facts which I will attempt to summarise relatively briefly.

Relationship between the offender and the victim

1. Mr Dempsey and Ms Sutton commenced a de facto relationship in 2003. They had two children together, a son born in December 2004 and a daughter born in late May 2009.
2. Between 2003 and 2011 the couple lived in various locations across New South Wales. At times they lived together and at other times they lived apart. There were many instances throughout their relationship where they separated and then got back together. The children always lived with Ms Sutton.
3. The relationship was volatile and there were heated arguments about money and the offender's drug use. Mr Dempsey was possessive, regularly intoxicated and often verbally abusive towards Ms Sutton. However, until the day of the murder he had not been physically violent towards her. By late 2011, the couple had separated.
4. On 17 November 2011 Ms Sutton moved into a house in Lithgow, while the offender lived alone in their previous joint residence in Bowenfels. Towards the end of 2011 Ms Sutton contacted a solicitor about relocating to Dubbo, where she had grown up and where her father lived. She had considered moving to Dubbo at various times during their relationship. The offender's response to that was inconsistent; sometimes he agreed with it and sometimes he objected to Ms Sutton and the children moving away.
5. The relationship further deteriorated in the months before Ms Sutton's death. She began to record her conversations with Mr Dempsey in an exercise book and using an audio recorder. The audio recordings were seized by police when they searched the offender's home in the course of their investigations into Ms Sutton's death. The recordings provided evidence of arguments the pair had about money and Mr Dempsey's access to the children. Neighbours also saw and heard Ms Sutton and Mr Dempsey arguing.

The offence

1. On 7 March 2012 Mr Dempsey had dinner with Ms Sutton and their two children before returning to his own home in Bowenfels. He consumed drugs after leaving Ms Sutton's home. At around 8.40am the next day, the offender drove to Lithgow in a car that needed to be serviced for the mechanic for whom he was working. He arrived at Lithgow at about 8.55am and, once he obtained a blue slip for the car, drove to Ms Sutton's home at 10.20am.
2. Ms Sutton was at home alone. Mr Dempsey used Ms Sutton's landline to call his employer, saying he would return to work soon.
3. Between 10.21 and 11.10am on 8 March 2012, Mr Dempsey assaulted Ms Sutton causing extensive injuries to her head, neck, torso, arms and legs. At one point he used a rectangular object, possibly a piece of wood, to strike her. Mr Dempsey also inflicted a severe blow to Ms Sutton's head with a circular shaped object, possibly a hammer, which caused a deep skull fracture behind her right ear.
4. There was a debate as to whether the evidence established that two weapons were used. Based on the nature of the injuries, I am inclined to think there were two weapons. However, the evidence does not establish this beyond reasonable doubt and whether two weapons were used, or whether one weapon was used twice, is not a matter of great moment. The fact is that this was a savage and brutal attack and was carried out using at least one blunt force weapon.
5. The offender left Ms Sutton naked in a bathtub filled with water. Whether he placed her in the bathtub after he committed the fatal assault could not be determined with certainty. However, there is no dispute that the blow to her head caused - either directly or indirectly - Ms Sutton's death.

Post-offence conduct

1. Mr Dempsey took Ms Sutton's mobile telephone (which has never been recovered) and drove to a service station. He parked 30 or 50 metres away and walked to the service station at around 11.20am. He purchased petrol but did not put any in the car. As he drove to the service station, his employer called and asked where he was. The offender said he had run out of petrol and was at a service station. His employer asked him to buy McDonald's for the staff. At around 11.50am, Mr Dempsey ordered food and drinks at McDonald's. A McDonald's employee described him as nervous and jittery. He left McDonald's with the drinks but forgot to collect the hamburgers.
2. He then drove back to work, arriving at about 12.40pm. His employer observed him to be flustered. He worked until 3.42pm, when a staff member from his son's school called him, saying that his son had not been collected. Mr Dempsey left work and drove to collect him.
3. Ms Sutton's sister, Erica Ellery, was also called by the school. She feared something was wrong immediately because Ms Sutton had never been late to collect her son. Ms Ellery went to Ms Sutton's house to check on her and found her lying on her right side in the bathtub, with her face and mouth submerged.
4. Ms Sutton called an ambulance at 4.22pm. Ambulance officers arrived a short while later. Mr Dempsey then arrived after Ms Ellery informed him of Ms Sutton's death. He was very agitated. He knelt beside Ms Sutton, lifted her face out of the water, placed a cloth under her head, covered her naked body with a towel and moved a piece of wood sitting next to the bath. He was told by ambulance officers to leave, which he did.
5. The police arrived at around 4.40pm and found Mr Dempsey in possession of 4.5g of methylamphetamine.

Police investigation and arrest

1. At 9.47pm the offender was interviewed by police. In that interview he told police that after leaving Ms Sutton's home the night before, he purchased amphetamines and slept for about "an hour and a half", before waking at 6.20am. He said he was at Ms Sutton's home for "maybe twenty minutes", that they spoke and were intimate together. He denied killing her or being violent towards her but said that he was paranoid that another man was in her house. He told police that when he left Ms Sutton's place he had run out of fuel, walked home to get his wallet and then walked to the service station to purchase fuel.
2. Police did not find Ms Sutton's blood on Mr Dempsey's clothing. However, a review of CCTV footage suggested that the offender had lied about walking home to get his wallet.
3. On 28 March 2012 Mr Dempsey participated in a walk-through interview with police in which he demonstrated his movements on 8 March 2012. He restated the version of events provided in his earlier interview, adding that he had stopped at Ms Ellery's residence, before getting the blue slip in Lithgow. He said he was checking whether Ms Sutton's car was there.
4. The offender was arrested and charged a long time later on 20 February 2020. The Prosecutor explained the reason for the delay was "purely evidential", and that additional statements were provided to the police shortly before their decision was made to charge the offender. Following his arrest, Mr Dempsey participated in a second electronically recorded interview. He was shown CCTV footage contradicting his version of events but maintained his denial of any act of violence towards Ms Sutton.

Post-mortem findings

1. The post-mortem examination showed that Ms Sutton suffered many injuries. These injuries included defined bruising on her eyes and lips, multiple abrasions to her forehead, cheeks, and near her breast and left buttock, as well as several bruises to her left shoulder, left arm, pelvic bone and around both of her legs and feet. Ms Sutton had internal bruising to her head and neck region.
2. While most of this bruising was not life-threatening, the number of blunt force injuries established that this was a brutal and sustained assault, or series of assaults, that continued for some time.
3. The incident culminated in a ferocious blow to the back of her head which caused a depressed skull fracture and brain swelling behind her right ear. The fracture was 30mm in diameter and there were ten "fracture fragments were pushed forcibly inwards towards the brain causing considerable brain trauma." This injury was the result of "a severe blow … with a circular shaped object, such as a hammer". This blow to the head resulted in a loss of consciousness, immediately or soon afterwards, but other post-mortem findings indicated that the victim survived for at least a short time.
4. The expert witnesses could not determine the precise cause of death. The agreed position was that the cause of death was either drowning or the direct result of the severe head injury. The former was considered more likely.

Objective seriousness and aggravating features

1. It goes without saying that this description of events establishes criminality of an extremely high order.
2. I accept that the offence was not planned or pre-meditated and, even though there was a history of discord and verbal abuse, it was not part of an ongoing pattern of domestic violence. Even so, the offence was a manifestation of the offender's controlling and possessive behaviour. Ms Sutton was entitled to leave the relationship and to move with her children to Dubbo without the offender becoming jealous, abusive and, ultimately, violent. The fact that the murder represented an extreme case of domestic violence gives rise to the need to impose a sentence that will deter others from thinking they have some right to control the conduct of their former domestic partners.
3. The offender's conduct after the offence demonstrated remarkable selfishness and a callous disregard for his victim's plight. He attempted to distance himself from what he had done by creating a false story about running out of petrol and by attempting to minimise the amount of time that he was at the victim's home. The result was that a child was left waiting to be picked up from school and the victim's sister must live forever with the memory of finding Ms Sutton dead in a bathtub.
4. While I accept the submission made by counsel for Mr Dempsey that these lies and deceptions were both ill-considered and destined to fail, the reality is that there was a delay of about a decade in bringing the offender to justice. I also accept the Prosecutor's submission that the post-offence conduct demonstrated a capacity for rational thought and planning that undermines the submission that Mr Dempsey's drug use reduced to any significant degree his capacity to form an intention to kill. While I accept the crime was neither planned nor pre-meditated, and was clearly committed in a frenzied rage, I am satisfied beyond reasonable doubt that - at the very moment he struck his ex-partner with some sort of weapon, probably a hammer - Mr Dempsey had formed an intention to kill her.
5. The offence occurred in the victim's own home, where she was entitled to feel safe, and this is an aggravating feature of the offence. [5] So too is the use of the weapon, [6] although many murders are carried out with the use of some sort of weapon.
6. I do not accept the submission made on behalf of Mr Dempsey that the fact that the prosecution could not establish death by drowning makes any real difference to an assessment of the objective gravity of the crime. Nor do I accept the question of how many weapons were used makes a significant difference to this assessment, or to my finding that there was an intention to kill at the time of the blow to the head.
7. I reject the Prosecutor's submission that I should infer that Mr Dempsey was aware of the harm that would be caused to Ms Sutton's children, and that this state of mind is relevant to his moral culpability or to an assessment of the objective seriousness of the offence. I am not satisfied that the offender was thinking with any degree of clarity at the time of the offence. I accept that the parties' relationship was such that he was trusted to enter the victim's home, but I am unable to accept that this "position of trust" should be taken into account as an aggravating factor under s 21A(2)(k) Crimes (Sentencing Procedure) Act. It is part of the factual matrix and I have considered it in my evaluation of the objective seriousness of the offence.
8. Considering all of the objective features of the offence, I am satisfied that the offence falls in the middle of the range of objective seriousness for the crime of murder. I do not accept that it falls "well below" that putative mid-range, as submitted by counsel for the offender, although it may be that for a crime involving an intention to kill where there is a lack of planning and premeditation (as seen here), that it could properly be categorised as falling somewhere below the very midpoint for such offences. As has been pointed out in previous cases, the "middle of the range" is a fairly broad spectrum, particularly with a crime like murder. [7]
9. There is a real question as to the utility of labels such as those into which I have just descended, but they are necessary in the context of legislation providing for a standard non-parole period of 20 years, for the purpose of identifying the putative mid-range of objective seriousness. [8] It is necessary in such cases, or at least highly desirable, to formulate some relative assessment or evaluation of where the case falls relative to other cases of murder.
10. The 20-year standard non-parole period is a significant legislative guidepost. However, in view of the lack of any significant criminal history for violence, the plea of guilty and other relevant factors personal to the offender, to which I will presently return, I will impose a non-parole period of much shorter duration than that.
11. As I have said, another factor in this case is that the offence was one of domestic violence. It is well recognised that such offences must be met with significant punishment in the expectation or hope that a message will be sent to other offenders (usually men) who would conduct themselves in a similar way. [9] Violence in a domestic setting, or perpetrated by former partners and lovers, cannot be tolerated by the courts. As the Prosecutor submitted, the offender's explanation that he was frightened to lose his children provides no mitigation. The victim was entitled to decide, as she did, to terminate a dysfunctional relationship and to take care of her two children, without the need to be cowed by the needs of their seriously drug-dependent father. It is no excuse that the offender may genuinely have been motivated at that moment of the killing by his so-called love of his children and his fear of losing them. The Court, by the imposition of stern sentences, must make this clear to the community.

The offender's personal case

1. The evidence establishes a significant history of dysfunction going back to the offender's early life. He provided a cogent history to a psychologist, Julie Dombrowski, [10] upon which I am prepared to act.
2. The Prosecutor submitted that this history, and the "untested assertions made to the psychologist, should be rejected". Reliance was placed on the decision of Smart AJ in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]. In Lloyd v R [2022] NSWCCA 18 McCallum JA (as her Honour then was) said of this passage at [45]: "Smart AJ's general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceedings on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge."
3. Her Honour referred to the important observations of Allsop P (as he then was) in Devaney v R [2012] NSWCCA 285 at [88]: "It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional."
4. There is nothing in the history provided to Ms Dombrowski that suggests that there was any attempt on the offender's part to manipulate the interviewer or that he was fabricating or exaggerating his personal history. On the contrary, in my assessment, it has the ring of truth to it. For example, somewhat unusually, the history asserted violence on the part of his mother, not his father. His relationship with his father was complicated because the offender felt that his father did not protect him from the violence perpetrated by his mother. There is nothing to suggest the history of his adoption was other than accurate and true. If such a history were disputed, it is assumed there would be a record available to support the factual contentions on either side. There is nothing in the assertion that the offender was sexually molested at a young age to suggest that it is made up.
5. I accept the history provided by the offender and the conclusions the psychologist reached based on that history.
6. Mr Dempsey is 53 years old as he stands to be sentenced and was 42 at the time of the offence.
7. He was adopted as an infant and grew up not knowing he was adopted. He lived with his adoptive parents and two adoptive sisters. He reported being physically abused by his adoptive mother during childhood. She would throw household items at him, beat him and lock him in a wardrobe until he fell asleep. Mr Dempsey described his adoptive father as someone "who did little to protect him from his mother".
8. Between the ages of 8 and 11 Mr Dempsey was sexually abused by one of his adoptive sisters. Then, during his final year of primary school, he was sexually abused by a Catholic priest.
9. The offender left home at the age of 16. When he was 20 his adoptive mother died from a heart attack and a year later his adoptive father died from pneumonia. He was so distressed by his adoptive father's death that he could not attend the funeral.
10. When the offender was 38 years old, his biological mother made contact with him. He developed a relationship with his family in the following years. However, they discontinued contact upon learning about his conviction for possession of child abuse material in March 2021. His biological parents died in 2017 and 2018. He lost contact with the rest of his biological family.
11. Mr Dempsey attended school until year 10. He achieved "above average" grades and was heavily involved in sport. Since leaving school he has worked as a tyre fitter, a motor vehicle body builder, a mechanic in the automotive industry, in hospitality and as a retail worker. In his late 20's he trained as a submariner for the Royal Australian Navy in Western Australia for 12 months. However, he was discharged when he was sentenced to a period of imprisonment.
12. Mr Dempsey said that when he moved to Western Australia, he formed social connections with a motorcycle gang. This led him into criminal conduct and drug use. He left Western Australia to end those associations but maintained relationships with antisocial peers (including members of the same motorcycle club) in NSW. He says he no longer has contact with those people.
13. Mr Dempsey used heroin for about 12 years, starting at the age of 21. Initially he used heroin to suppress negative feelings regarding his father's death, however he soon began offending to fund his heroin use. In 2002 he took methadone for 12 months to manage his withdrawal symptoms and has not used heroin since. However, between the ages of 34 and 43 the offender regularly injected up to 1g of amphetamine per day. He engaged in erratic and aggressive behaviour when using amphetamines. He last consumed amphetamines on the day of the murder. He has also used MDMA and LSD.
14. He now has three children, now aged 18, 14 and 8. After the offence, the Department of Communities and Justice placed the two children the offender had with Ms Sutton in foster care. Mr Dempsey's youngest child, whose mother is another former partner, was also placed in care due to the mother's use of methylamphetamine. The offender is currently seeking to have contact with all three children.
15. At the time of the offence Mr Dempsey was living independently, working as an apprentice mechanic and using amphetamines heavily. After the offence, he was unable to work for 9 months due to mental health issues and was consuming up to 750ml of alcohol per day to avoid negative thoughts and feelings about his offending. In 2016 he was diagnosed with alcohol dependency disorder and depression. He was able to reduce his alcohol intake with medication. Before his arrest in 2020 he had recommenced working in the manufacturing industry.
16. Mr Dempsey has been in custody since 20 February 2020. He currently works as a laundry leading hand within the prison system. He reported that although he has adjusted to prison, he has felt the impact of his confinement, including the isolation, and has not had many opportunities to speak with a psychologist.
17. Ms Dombrowski expressed various opinions as to the significance of the offender's family and childhood history. There is no direct evidence of a causal connection between the history of dysfunction, abuse and neglect and the killing of Ms Sutton. However, I am prepared to draw the inference that those early experiences of domestic violence and sexual abuse contributed in a meaningful way to the offender's reliance on drugs and his resort to antisocial peer groups. Drug use, of course, provides no excuse or mitigation, but the history of abuse and neglect explains why this offender's life took the course that it did. There is an indirect link between his childhood experiences and the commission of this offence, and his moral culpability is reduced to some degree. However, those matters do not reduce the objective criminality of the offending in the particular circumstances of this case.

Criminal history, prospects of rehabilitation and remorse

1. I have mentioned the offender's lack of relevant criminal convictions. His criminal record in NSW comprises the following offences:

• On 8 March 2012, possessing a prohibited drug, for which he was fined $400 and placed on a 12-month good behaviour bond.
• On 9 March 2012, producing, disseminating or possessing child abuse material, for which he received a 12-month suspended prison sentence.

1. Otherwise, the offender has a very old criminal history from his time in Western Australia. This included offences of breaching bail, burglary, fraud, driving without a driver's licence, stealing and receiving. Those offences go back to 1998, when he received various sentences of imprisonment when he faced the Western Australia District Court.
2. The offender's criminal record is not substantial and includes no offences of violence. I am satisfied, based on that, that his conduct on the day of Jenoa Sutton's death was out of character. That is relevant both as a mitigating circumstance generally, but also in an assessment of his prospects of rehabilitation. It could not be said that he is a person of prior good character, but his criminal record is limited and the lack of any history of violence leads me to conclude that he has reasonable prospects of rehabilitation and is unlikely to offend in a similar way ever again.
3. Whilst his expressions of remorse came very late, and his belated acknowledgement of responsibility left Jenoa's family in a state of suspense for 10 years, I am satisfied that his letter to the Court and the statements he made to the psychologist are genuine. I do not find this to be a mitigating feature under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act, but it is a matter that supports my finding as to his prospects of rehabilitation.

Determining the length of the sentence and non-parole period

1. As I said to Ms Sutton's family on the day of the sentence hearing, and as I repeated at the beginning of these remarks, nothing I do in sentencing the offender, and nothing that I say in explaining the reasons for that sentence, can bring Jenoa back or provide them with any meaningful closure or relief from their torment, grief and bewilderment. All I can do is to acknowledge those things and to sentence the offender according to law, taking into account the various purposes of punishment and the evidence presented in the case. It is always difficult for the secondary victims of homicide to accept that any sentence imposed by the Court, consistent with sentencing patterns for such cases, is enough.
2. Even so, the victim's dignity must be vindicated, and the offender must be adequately punished for his crime (although the perceptions of adequacy will vary). Crimes of such violence must be denounced, and the sentence must deter both the offender himself and others disposed to commit acts of domestic violence. Mr Dempsey must be held accountable for his actions.
3. While neither counsel referred me to any past cases, I have considered sentencing patterns in other cases both by reference to my general understanding of such patterns and the specific outcomes in cases of murders committed in a domestic setting. [11] Of course, no two cases are truly "comparable", and I have treated this survey with circumspection and caution.
4. I have kept firmly in mind the maximum penalty of life imprisonment. That maximum penalty reflects the fact that a human life was taken, and that murder is the most serious offence known to the law.
5. I accept the joint submission of the parties that the timing of the guilty plea requires the offender to receive a sentencing discount of 10% from an otherwise appropriate sentence.
6. Taking into account all relevant factors, both the objective gravity of the offending and the subjective or personal circumstances of the offender's history, I would commence with a total sentence of 22 years. This would be reduced to 19 years and 9 months upon the application of the 10% sentencing discount and some very slight rounding down.
7. I am satisfied there are special circumstances warranting some reduction, but not much reduction, to the proportion between the total sentence and the non-parole period. However, the offender's history of drug use and lengthy period since he was last incarcerated does justify some small reduction in the non-parole period. Ordinarily the so-called statutory ratio of 75% as between the total sentence and the non-parole period, would result in a minimum period of incarceration of a little more than 14 years and 9 months. I will reduce that non-parole period to 14½ years based on that finding of special circumstances. I am conscious that this is a very small adjustment. However, the non-parole period must not fall beneath that which reflects the objective gravity of the crime, and the parole period will be ample to allow the offender to re-enter the community with the support of parole authorities.
8. Accordingly, the total sentence will be 19 years and 9 months with a non-parole period of 14½ years. The total sentence will expire on 19 November 2039. Whether Mr Dempsey is released before then or at the expiration of the non-parole period will be determined by the State Parole Authority.

Orders

1. Accordingly, I make the following orders: 1. The offender is sentenced to a non-parole period of 14½ years, commencing on 20 February 2020 and expiring on 19 August 2034. 2. There will be a balance of term of 5 years and 3 months, commencing on 20 August 2034 and expiring on 19 November 2039. 3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise Mr Dempsey of the existence of that Act and that it applies to him and to this offence. I direct his legal team to explain the significance of this fact to the offender.

Endnotes

1. Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
2. See generally Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 2.
3. R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84] (Hamill J); R v Halloun [2014] NSWSC 1705 at [46] (McCallum J).
4. Crimes (Sentencing Procedure) Act, s 30E(3).
5. Crimes (Sentencing Procedure) Act, s 21A(2)(eb).
6. Crimes (Sentencing Procedure) Act, s 21A(2)(c).
7. Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162; (2012) 224 A Crim R 204 at [87]-[88] (Basten JA).
8. Crimes (Sentencing Procedure) Act, Table to Pt 4, Div 1A; cf DH v R [2022] NSWCCA 200 at [60] (Yehia J).
9. See R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at [86] and Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[55].
10. Ex 1 - Report, Julie Dombrowski, 22 December 2022.
11. See, for example, R v Johnson [2015] NSWSC 31, R v Haydar (No 4) [2017] NSWSC 615, R v Latu (No 3) [2019] NSWSC 951, R v Lechmana [2010] NSWSC 849, Lechmana v R [2019] NSWCCA 112 and R v Ahmed (No 2) [2023] NSWSC 105.

Amendments 20 March 2023 - Minor amendments made to reflect transcript of judgment. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 March 2023