Murder and Manslaughter Sentences for Joint Criminal Enterprise

In a case involving a joint criminal enterprise to kill a third individual, two individuals were found guilty of murder and manslaughter. One was convicted of murder due to the intent to kill, while the other was convicted of manslaughter due to the use of excessive force in self-defense.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME]; R v [NAME] [2016] NSWSC 292 Hearing dates: 27/7/2015 – 29/7/2015, 4/8/2015 – 7/8/2015; 10/8/2015; 12/8/2015 – 13/8/2015; 17/8/2015 – 20/8/2015; 24/8/2015 – 28/8/2015; 31/8/2015 & 11/2/2016 Date of orders: 21 March 2016 Decision date: 21 March 2016 Jurisdiction: Common Law Before: Davies J Decision: [NAME], for causing grievous bodily harm to [NAME] with intent to cause grievous bodily harm is convicted and sentenced to a non-parole period of seven years commencing 8 May 2013 and expiring 7 May 2020 with an additional term of two years and four months expiring 7 September 2022.

For the murder of [NAME] he is convicted and sentenced to a non-parole period of 18 years commencing 8 May 2016 and expiring 7 May 2034 with an additional term of six years and nine months expiring 7 February 2041.

[NAME], for causing grievous bodily harm to [NAME] with intent to cause grievous bodily harm is convicted and sentenced to a non-parole period of seven years commencing 4 May 2013 and expiring 3 May 2020 with an additional term of two years and four months expiring 3 September 2022.

For the manslaughter of [NAME] he is convicted and sentenced to a non-parole period of eight years commencing 4 May 2016 and expiring 3 May 2024 with an additional term of three years and six months expiring 3 November 2027. Catchwords: CRIMINAL LAW – sentence – murder – manslaughter – joint criminal enterprise – shooter guilty of manslaughter for excessive self-defence of co-[NAME] – co-[NAME] guilty of murder – fact-finding – need to find facts consistent with both verdicts – prior bad relationship between co- [NAME] and victim - different motivations of offenders for the joint criminal enterprise to kill the victim explains different verdicts - objective seriousness of both offences – importance of general deterrence where offenders took the law into their own hands CRIMINAL LAW – cause grievous bodily harm with intent - innocent party seriously injured by accident during shooting – transferred intent – offenders found guilty of causing grievous bodily harm with intent – objective seriousness – other members of the public present - recklessness – seriousness of injuries – no remorse - accumulation of sentences with murder and manslaughter sentences Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: AM v R [2012] NSWCCA 203 Goundar v R [2012] NSWCCA 87 Mariam v R; R v Mariam [2013] NSWCCA 338 R v [NAME] (No 5) [2015] NSWSC 1197 R v [NAME] (1985) 2 NSWLR 466 R v Heffernan [2005] NSWSC 739 R v [NAME] & Ors [2001] NSWSC 225 Category: Sentence Parties: [NAME] (Accused) [NAME] (Accused) Crown Representation: Counsel: [redacted] [NAME] ([NAME]) [NAME] (Crown)

Solicitors: [redacted] [NAME] ([NAME]) Solicitor for Public Prosecutions (Crown) File Number(s): 2013/63525; 2013/88487

Judgment 1. Just before 4pm on Tuesday, 15 January 2013 [NAME] was shot and killed in the upstairs office of his company known as [NAME] at [ADDRESS], [ADDRESS]. At the same time an employee of [NAME], was shot in the right arm and suffered a fracture of the lower end of the right humerus. 2. [NAME] and [NAME] were jointly indicted that each did murder [NAME] and that each did cause grievous bodily harm to [NAME] with intent to cause grievous bodily harm.

3. The trial took place from 4 to 28 August 2015. At the conclusion of the case for [NAME] and [NAME] application was made by Senior Counsel for [NAME] that I should direct the jury to acquit [NAME] on the basis that there was no case to answer. On 25 August 2015 I acceded to that application and directed the jury to acquit [NAME] which they duly did. A similar application was made on behalf of [NAME] and that application was refused: R v [NAME] (No 5) [2015] NSWSC 1197.

4. The jury returned their verdicts on 31 August 2015. In respect of [NAME] they found him guilty of the murder of [NAME] and guilty of causing grievous bodily harm with intent to cause grievous bodily harm to [NAME]. In respect of [NAME] they found him not guilty of the murder of [NAME] but guilty of manslaughter. In addition, they found him guilty of causing grievous bodily harm with intent to cause grievous bodily harm to [NAME]. They now stand for sentence in relation to those verdicts.

5. The maximum sentence for murder is life imprisonment. There is a standard non-parole period in this case of 20 years. The maximum penalty for manslaughter is 25 years imprisonment. There is no standard non-parole period. The maximum penalty for causing grievous bodily harm with intent to do so is 25 years imprisonment with a standard non-parole period of 7 years.

The facts 1. It is necessary for me to find facts consistent with the jury's verdicts. That is by no means an easy task given the verdicts and the circumstances of the offending. The Crown's case was based on a joint criminal enterprise between [NAME] and [NAME] to murder [NAME]. The reason they intended to kill [NAME] was related to the previous membership of [NAME] in the Hells Angels Motorcycle Gang to which gang [NAME] belonged at the time of his death, and to the souring of a relationship between [NAME] and [NAME] who was also a member of that organisation.

2. The jury's conviction of [NAME] for the murder of [NAME] means that they must have accepted the Crown case of a joint criminal enterprise to kill [NAME]. That is because it was [NAME] not [NAME] who shot and killed [NAME]. The evidence demands that the arrangement must have been made before the offenders and [NAME] went upstairs into [NAME]'s offices as I shall relate. Yet the conviction of [NAME] for manslaughter must mean that the jury considered that he acted in self-defence, albeit using excessive or unreasonable force. Although provocation was left to the jury neither the Crown nor counsel for [NAME] contended that the manslaughter verdict was explicable by reliance on provocation. I agree with that assessment.

3. It must be said, however, that a joint criminal enterprise to kill [NAME] involving the presence of the offenders and others at the premises on that day in circumstances where [NAME] carried a gun in his pocket to effect that enterprise sits uneasily with a conclusion that [NAME] alone shot [NAME] as a defensive measure to protect his father.

4. The background facts are relatively uncontroversial. I note that any facts I find against the offenders must be found beyond reasonable doubt but facts found in their favour may be found on the balance of probabilities. 5. [NAME] became a full member of the Hells Angels on 16 December 2007. At the time of his death he was a member of the Brisbane City Chapter. 6. [NAME] had been a member of the [NAME] in the late 1990s. He then left the [NAME]. He became a prospect in the Hells Angels gang from July 2009 or a little earlier. He became a full Hells Angels member on 6 July 2010. He ceased being a member of the gang somewhere between November 2010 and April 2011 but probably closer to the latter date.

7. Whilst he was associated with the Hells Angels he was a methamphetamine cook for [NAME]. He had previously had a good relationship with [NAME] but relations soured between them when [NAME] started having problems with one of [NAME]'s mates in the Hells Angels, a man known as [NAME]. [NAME] questioned [NAME]'s loyalty because of his friendship with [NAME]. 8. [NAME] died on 1 April 2010 and [NAME] said that from that time onwards he just slowed down in what he was doing for [NAME], principally cooking methamphetamine. That does not sit easily with the fact that it was some three months after [NAME]'s death that [NAME] became a full Hells Angels' member.

9. In any event, two other things occurred that appeared to cause [NAME] to lose motivation particularly for the work he was supposed to be doing for [NAME]. His brother was found to have cancer and died in April 2011, and a little before that time [NAME] had his hands operated on for carpel tunnel syndrome.

10. Relations between [NAME] and [NAME] must have deteriorated significantly because [NAME] called a meeting of the Hells Angels at the Petersham clubhouse to sort things out. [NAME] said that this meeting was six to eight months after [NAME]'s death which would place it towards the end of 2010, but at another time in his evidence he said it was in 2011. The latter time fits more easily with subsequent events. At that meeting [NAME] was seriously assaulted and, although he does not know who assaulted him, [NAME] was close by to him before he was struck on the left hand side and [NAME] believed that [NAME] was responsible for the assault. [NAME] had accompanied [NAME] to a hotel near the clubhouse where he waited for his father to return from the meeting. [NAME] observed the condition of his father immediately after the assault.

11. Shortly after that time [NAME] decided to leave the [NAME] and he handed his colours in outside a clubhouse. At that time [NAME] was present. [NAME] said words to the effect that they could work things out but [NAME] said there was nothing to work out. As [NAME] walked away from the clubhouse [NAME] followed him and said "You know this is going to get nasty if it is not sorted". 12. [NAME] gave evidence that after that time but before his brother died in April 2011 he was advised by the police that his life was in danger because there was a contract out on him. They said they could help him, but [NAME] rejected their offer. It was at about this time that [NAME] moved from Waterloo to Brighton Le Sands because Brighton Le Sands was within an area that another outlaw motorcycle gang controlled. He thought he would be safer there. Subsequently, the Hells Angels made two visits to [NAME]'s parents' place, presumably looking for him or for the purposes of intimidation.

13. After the second visit by the Hells Angels to his parents' place just after New Year 2013 [NAME] gave evidence that he was ropeable, and he found out [NAME]'s Berry number and sent him a text saying "You're a weak dog going to an old person's home who is dying of cancer at my parents' place". He received a response from [NAME] saying, "I'm not a dog. You're the dog that's hiding. Let's catch up." [NAME] responded, "What, so I can get bashed again?" [NAME] replied, "You know how to fix this. We can sort it out. You know what to do. You need me. Let's sort it out". [NAME] responded "I don't need you or the fucking [NAME]. I can go elsewhere. I have changed Clubs before and I can do it again." [NAME] replied, "You're not going anywhere. You're a dead man". This exchange took place just after the new year 2013, probably two weeks before 15 January 2013.

14. After the exchange of texts [NAME] said that he realised he had said the wrong thing, like putting fuel on a fire. He said he knew that [NAME] was going to knock him, that is, kill him. [NAME] said that he decided he wanted to sort it out with [NAME] and see if he could buy his way out of it by a payment of money as somebody else he knew had done.

15. Whether that evidence of [NAME] about realising he had said the wrong thing and deciding he wanted to sort it out by paying money is true or not is difficult to determine. What seems clear, and I find, is that it was at about this time that the joint criminal enterprise to kill [NAME] was hatched. 16. [NAME] gave evidence of knowing about the bashing of his father at the Hells Angels's clubhouse in Petersham and that his father told him that [NAME] ([NAME]) was responsible. He gave evidence of knowing that the police told his father there was a contract out on him, of knowing about the visits of the Hells Angels to his grandparent's house at Strathfield, and of knowing about the subsequent text message exchanges between his father and [NAME], culminating in [NAME] telling his father he was dead. 17. [NAME] met [NAME] who was a friend of [NAME]'s. [NAME] spoke to [NAME] to get him to set up a meeting with [NAME]. [NAME] asked [NAME] and [NAME] and a few other men he knew to go with him to see [NAME]. [NAME] told his father he wanted to go there in any event. [NAME] asked the others to go with him in case [NAME] had his own men around him as he usually did.

18. The Crown does not accept this background evidence of threats and visits on behalf of the [NAME] because, as the learned Crown Prosecutor quite properly said, she had no way of testing or determining whether these matters were true or not. [NAME]'s evidence in that regard is largely dependent upon acceptance of his father's evidence except for his observations of his father after he was bashed at the Petersham clubhouse. His evidence about who was responsible for that bashing also comes from his father.

19. Nevertheless, I accept this evidence from both [NAME] and [NAME]. Conscious as I am of how easy it is to defame the dead when they cannot respond, there was enough other evidence given at the trial for me to conclude that [NAME] was a ruthless and violent man who had few, if any, scruples in dealing with those who crossed him in any way he thought appropriate. This was particularly evident from the sentencing remarks of Hidden J in relation to [NAME]'s conviction for manslaughter involving two Turkish men in 2000: R v [NAME] & Ors [2001] NSWSC 225.

20. The offenders, and their companions travelled in two cars to [NAME]'s premises in [ADDRESS] on the afternoon of 15 January. [NAME] and [NAME] went first to see if there was anyone else there with [NAME]. If there was, [NAME] was not prepared to meet [NAME].

21. When the car carrying [NAME] arrived at the premises [NAME] waited until [NAME] and the others in the car got out. He then took his father's gun from a compartment in the front of the car and put it in his pocket. [NAME] went upstairs and eventually persuaded [NAME] to come downstairs. [NAME] had a heated conversation with [NAME] saying that he did not know either [NAME] nor his father. He then went back upstairs. [NAME] rang his father and told him that [NAME] claimed not to know him but he said [NAME] was very angry. [NAME] arrived at the premises with [NAME]. [NAME] and [NAME] went upstairs to speak to [NAME]. The Crown submitted that the offenders knew from what [NAME] had told them that employees of [NAME]'s company were present upstairs in the office. In any event, it would have been obvious to them when they entered the upstairs part of the offices that there were a number of employees present.

22. There was a heated argument between [NAME] and the three men. A viewing of the CCTV footage, which captured the whole argument visually but not aurally, then shows [NAME] to pull a gun from his pocket quite quickly and commence shooting. According to both [NAME] and [NAME], just before the shooting commenced [NAME] had said to them, "You're all fucking dead". [NAME] then turned to [NAME] and asked him if heard what [NAME] said. [NAME] then said, "Let's get out of here". [NAME] had started to leave at that point. [NAME] claimed that he just "lost it", and that's when he started shooting.

23. As [NAME] started staggering after he was first shot he moved around towards his own office and away from the entrance door. [NAME] kept shooting (five bullets were fired) and one of those hit [NAME]. Three of the bullets struck [NAME]. The fifth passed out through the wall of the premises.

24. The Crown case was, and the Crown continued to submit at the sentence hearing, that [NAME] pulled out the gun after receiving a nod from [NAME]. The nod was said to be significant because it clearly demonstrated the prior arrangement for [NAME] to shoot [NAME]. [NAME] gave evidence that he saw [NAME] nod to [NAME] before the shooting.

25. The DVD was played during the trial on a number of occasions. I have subsequently watched the DVD a number of times. I cannot be satisfied beyond reasonable doubt that [NAME] nodded to [NAME] before [NAME] commenced shooting. I do not consider that it is necessary for the jury to have concluded that there was such a nod for the jury to have come to the view that there was a joint criminal enterprise between [NAME] and [NAME] to kill [NAME].

26. The offenders and those with them then drove from the premises. The next day [NAME] and [NAME] travelled on one-way tickets to Chile paid for by [NAME]. The principal reason for that was said to be so that they were out of the reach of the Hells Angels who might seek revenge for [NAME]'s death. However, although both returned voluntarily a few months later, I consider that part of their motivation was to avoid detection for their involvement in the shooting.

Submissions 1. Although counsel for each of the offenders initially submitted that I should sentence according to the facts involving each of them individually without regard to the verdict against the other, they ultimately accepted the Crown's submission in reliance on Mariam v R; R v Mariam [2013] NSWCCA 338 that it was necessary for me to sentence having regard to all of the facts and the verdicts found notwithstanding that the task might entail "an exercise in mental gymnastics": Mariam at [20]. That is what I have done.

2. Counsel for [NAME] submitted that the planning and premeditation in relation to the joint criminal enterprise did not extend to the killing of [NAME]. In oral submissions, this was expanded to a submission that I could not find beyond reasonable doubt that any intention to kill existed prior to the offenders being present in the offices with [NAME]. Similarly, counsel for [NAME] submitted that if there was any intention it was only an intention to go there to talk to try to sort the matter out but that if it could not be sorted out an intention to kill might arise. I reject these submissions.

3. If I had found that [NAME] nodded to [NAME] immediately before the shooting that would have necessitated a finding that there was a plan already agreed that [NAME] would be killed at some point when the offenders went to the premises. There was no evidence from any of the witnesses who heard what was said during the argument including the offenders that would enable a finding that the intention to kill only arose during the discussions with [NAME].

4. The only finding that I can make consistent with the jury's verdict in relation to an intention to kill [NAME] is that this was agreed between [NAME] and [NAME] at or about the time [NAME] was endeavouring to organise a meeting with [NAME] with the assistance of [NAME]. If there was no nod, that makes it even more likely that the intention to kill must have been agreed before the offenders went to the premises.

5. To make that finding consistent with the verdict of manslaughter by reason of excessive self-defence on [NAME]'s part I find that although there was a joint criminal enterprise between the offenders to kill [NAME]'s intention of doing so was to protect his father because of his belief about the danger that his father was facing arising from the bashing, the visits by the Hells Angels to his grandparents, from his belief that [NAME] had a contract out on his father's life and because of his knowledge of the violence of [NAME]. [NAME] was no doubt concerned for his own safety, the only finding I can make consistent with the jury's verdict of murder in respect of him is that he intended to kill [NAME] not so much because of a belief that he needed to defend himself as much as a revenge for what he had suffered at [NAME]'s hands. I accept, however, that it is difficult to reconcile that evidence with [NAME]'s evidence, which I accept, that he could have killed [NAME] in far more discreet circumstances if that was his intention, particularly because he knew where [NAME] lived in a somewhat remote location.

[NAME] seriousness

Murder 1. The Crown does not contend that the murder was in the worst category. I agree with that assessment.

2. It is clear that [NAME] was the moving party in arranging for the meeting with [NAME] where he was killed. It was his weapon that was used and I find that he knew that [NAME] would take that weapon to the meeting with [NAME].

3. Matters of aggravation are that the killing was part of a planned criminal activity and a weapon was used. When the weapon is a firearm that necessarily means that the offence was committed without regard for the public safety of the other employees. Those two aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) should not be double counted. I have already found that the intention was to kill [NAME] and not to inflict grievous bodily harm on him.

4. I accept the submission made on behalf of [NAME] that self-defence played some small role in the arrangement he made to kill [NAME] although this self-defence did not rise to the level of a defence to the charge of murder. I rely in that regard on what was said by Lee J in R v [NAME] (1985) 2 NSWLR 466 at 485 and by Hoeben J (as his Honour then was) in R v Heffernan [2005] NSWSC 739 at [53]-[54].

5. Were it not for the element of self-defence that I have determined was some part of the motivation for the killing I would have found that this offence was in the mid-range of objective seriousness. I consider that the self-defence aspect means that the matter should be regarded as a little below the mid-range of objective seriousness.

Cause grievous bodily harm 1. I consider this when dealing with [NAME]. What is there said applies equally to [NAME] because of the joint criminal enterprise. Although his role was not that of the shooter, the circumstances of the shooting at [NAME]'s premises with innocent people present mean that the objective seriousness of the offending is the same for [NAME] as for [NAME].

Subjective features 1. [NAME] was born on [DATE]. At the time of the killing he was aged 47 years. He is now aged 50. [NAME] was born in Bosnia and came to Australia when aged five or six years. When he left school he took up an apprenticeship in automotive engineering, fitting, machining, turning, specialising in motors. He became an interstate truck driver. He suffered a serious motor vehicle accident in 1990 when driving a heavy vehicle and the front steering gave way. He woke up four days later in hospital. He said that he suffered frontal lobe brain damage, damage to his teeth and injury to both his cervical and lumbar spine. There was no suggestion that the frontal lobe brain damage he suffered had any relationship to the killing or any other matters about which evidence was given at the trial. [NAME] told [NAME] that his father subsequently developed bipolar disorder there is no evidence of that. 2. [NAME] joined the [NAME] when aged about 17. Subsequently he hung around with the Comancheros and then the [NAME]. He left the [NAME] on good terms and then in 2009 he commenced his involvement with the Hells Angels. He was first a prospect and then became a member of that [NAME]. He became close to [NAME] and worked for him as a meth cook. The circumstances in which he left the Hells Angels were noted earlier. 3. [NAME] has a number of convictions on his record. These include firearms and drug offences. On 17 May 2007 he was given a two year prison sentence with an 18 month non-parole period for maliciously inflicting grievous bodily harm. On appeal the non-parole period was reduced to 12 months but the overall sentence was maintained.

4. On 18 May 2011 he was given a two year section 9 bond for obtaining money by deception. He remained on that bond at the time of the present offences. That is an aggravating factor.

5. No evidence of any sort was put forward for [NAME] at the sentencing hearing.

[NAME] seriousness

Manslaughter 1. Although the jury found a verdict of manslaughter because of unreasonable force used by [NAME] in defence of his father the offence was a serious one. It had been planned for a few days and involved the use of a firearm. The offence was not committed in the heat of the moment and firing five bullets towards [NAME] was excessive self-defence to a marked degree. [NAME] was unarmed and had no support in the way the offenders did in taking other men with them to the confrontation. The objective seriousness of the unlawful killing is not mitigated by the fact that the murder charge was reduced to manslaughter because of excessive self-defence. As R A Hulme J said (Macfarlan JA and R S Hulme AJ agreeing) in Goundar v R [2012] NSWCCA 87 at [42], it is not the variety or legal basis of manslaughter but the facts which determine the objective gravity in a particular case.

2. The planning and the use of the firearm were aggravating factors. I note what I said earlier about the impact on public safety of the use of the firearm. Not only was there no regard for public safety but firing a gun at a moving target where other people are present involved a grave risk of death to those persons. Although that risk almost came home to one such person, [NAME], and [NAME] will be punished for that, a number of other persons were equally at risk.

3. I consider that the objective seriousness of the offending is on the upper end of the mid-range.

Cause grievous bodily harm 1. The intent involved in this offence is transferred intent. However, [NAME]'s intent when he shot [NAME] was to kill [NAME]. In AM v R [2012] NSWCCA 203 Johnson J reviewed the considerations relevant to the determination of the objective gravity of an offence contrary to s 33 of the Crimes Act 1900 (NSW). Two matters relevant to the present offending are (a) the extent of the injuries sustained by the victim, a matter of great significance in assessing the objective gravity (AM at [71]), and (b) the fact that the offence was committed against an innocent citizen going about his ordinary business makes it a crime of increased seriousness (AM at [74]). 2. [NAME] was struck by the bullet in the right arm near the bicep muscle. Over a period of time he has undergone four operations on his arm. He has been left in the position where he cannot straighten his arm. The surgeon who treated [NAME] at Liverpool Hospital gave evidence that the x-ray taken of [NAME]'s arm showed some fractures in his humerus with multiple metallic fragments in that region and multiple pieces of shrapnel in the adjacent soft tissue. There was some swelling around the main artery in his arm and he suffered an injury to the median nerve. One of the veins that accompanies the brachial artery in the arm was also damaged by being cut through. The injuries were described by the doctor as serious injuries. He said the median nerve is an important nerve both for sensation and motor control in the thumb, the index finger, the middle finger and part of the ring finger. It also controls muscles that flex the fingers and the wrist.

3. Quite apart from the physical damage sustained by [NAME] was the emotional and psychological damage he experienced. His Victim Impact Statement eloquently detailed those matters. [NAME] has not worked since the shooting.

4. I accept that suffering grievous bodily harm is an element of the offence. However, the extent and the permanent nature of the injuries here should be regarded as informing the objective seriousness of the offending.

5. I also take into account the reckless disregard which [NAME] showed by continuing to fire at [NAME] as he staggered around after he was struck by the first bullet. I am conscious, however, that this matter should not be double counted with the aggravating feature that the unlawful killing of [NAME] took place in circumstances of the grave risk of death to other persons.

6. In my opinion, the offence falls within the mid-range of objective seriousness.

Subjective matters 1. [NAME] was born on [DATE]. He was aged 21 at the time of the killing and is now aged 24. He was first convicted of an offence at the age of 16 years of assault occasioning actual bodily harm. He was placed on a 12 month s 33(1)(B) bond. However, he was called up on that bond and a control order of nine months was imposed. On appeal to the District Court the control order was reduced to three months. The occasion for the call up appears to have been the charging of him and his conviction for recklessly causing grievous bodily harm for which he was sentenced to a control order comprising a non-parole period of eight months with a balance of term of ten months. On appeal that was reduced to a non-parole period of three months with a balance of term of nine months.

2. As an adult he was convicted of possessing or attempting to possess an anabolic or androgenic steroidal agent.

3. Although the offences of personal violence were committed whilst he was a minor they were serious offences and were committed only a few years before the present offences. I regard his record as an aggravating factor for the offending. 4. [NAME] was examined by [NAME] on 14 October 2015. What he told [NAME] indicates that he does not accept the jury's verdict that there was a joint criminal enterprise to kill [NAME]. He maintained, as he did in his evidence, that they only went there to talk to [NAME]. That indicates a lack of remorse for the killing. 5. [NAME] disclosed no drug or alcohol problem and he said he was not affected by drugs or alcohol at the time of the offending. As far as his general health is concerned, he told [NAME] that he suffered from migraine headaches, joint pain in the right shoulder and gastric reflux. The only other health issue he described, apart from reconstruction surgery to his right shoulder from having played football as a teenager, was a diagnosis of chronic fatigue syndrome at about the ages of 14 and 15. He was apparently prescribed certain drugs which appear to have corrected the problem. He did not claim to be depressed. 6. [NAME] said [NAME] was not thought to meet the accepted criteria for the diagnosis of any psychiatric disorder. [NAME] thought he had a good prognosis and good prospects for rehabilitation.

7. Two references were provided, one from his older sister and one from his mother. His mother, in particular, spoke of [NAME] being a caring, respectful and polite son and grandson. Both spoke of concern for their safety and well-being, and his mother said that [NAME] had asked that neither she nor his sister attend Court because he feared for their safety due to the fact that an outlaw bike [NAME] was involved. That sat uneasily with what [NAME] told [NAME] that he was not aware of any threats or danger from [NAME]'s family or the [NAME], as the problem was one between [NAME] and his father and not between him and the [NAME].

Remorse 1. I have already mentioned [NAME]'s statement to [NAME] that he and the others only went to talk to [NAME]. Whilst, given the history of bad blood between [NAME] and [NAME] it is understandable, although not really excusable, that no remorse has been expressed for [NAME]'s death, what is to be deplored is that at no stage either at the trial or subsequently has either [NAME] or [NAME] expressed any remorse or regret for what happened to [NAME], an entirely innocent person caught in the cross-fire. Nor can the lack of remorse be explained by a refusal to accept the jury's verdict. Both of them know without a doubt that [NAME] shot [NAME] and seriously and permanently injured him. I regard this lack of remorse as significant.

Deterrence 1. Both specific and general deterrence have some significance in the present case. As far as both offenders are concerned their history of violent offences requires the sentence to contain a component for specific deterrence.

2. General deterrence is of more significance where, as here, the offenders decided to take the law into their own hands to deal with a situation which ought to have involved law enforcement authorities. On [NAME]'s own evidence the police not only warned him about the threat to his life but offered to assist him. That offer was rebuffed and [NAME] chose to resolve the problem by killing [NAME]. Whilst that may be the way members of outlaw motorcycle gangs resolve their problems it is necessary for this Court to denounce such behaviour and to make it clear that those who do so will be severely punished particularly where, as here, an innocent person has additionally been seriously injured.

Rehabilitation and re-offending 1. I have nothing to assist me in relation to these matters as far as [NAME] is concerned. [NAME] thought that [NAME] had a good prognosis and good prospects for rehabilitation.

2. Nothing has been put forward to suggest that special circumstances should be found for [NAME]. In [NAME]'s case the matters suggested as special circumstances are [NAME]'s youth, his prospects of rehabilitation and the fact that it will be his first time in adult custody. Given his criminal history I do not consider that [NAME] being aged 21 at the time of the killing warrants any consideration as a special circumstance. If, as [NAME] believes, [NAME] has good prospects of rehabilitation, I do not consider there should be any shortening of the non-parole period to allow for a longer period on parole to achieve rehabilitation. In any event, the length of the parole period will provide quite sufficient time for rehabilitation. [ADDRESS] of Criminal Appeal has said more than once that it is not a special circumstance that it will be an [NAME]'s first time in custody, let alone adult custody. However, because of the accumulation of sentences for [NAME] I find special circumstances in relation to the manslaughter sentence simply to bring about the statutory ratio on the overall sentence. Similarly, I find special circumstances for [NAME] in relation to the sentence for murder to bring about the approximate statutory ratio on the overall sentence.

Sentence 1. [NAME] was arrested on 4 May 2013 and has been in custody since that date. His sentence will commence on that date. [NAME] was arrested on 8 May 2013 and has been in custody since that time. His sentence will commence on that date.

2. Both offences occurred as part of the same criminality. Although the elements of the second count were established, there was one single intent on the offenders' part, that is, to kill [NAME]. To some extent, therefore, the criminality involved in the killing comprehends the wounding. By reason of the recklessness with which the killing was carried out and the seriousness of the injuries to [NAME], there must be some accumulation of the sentences for each offence. 3. [NAME], for causing grievous bodily harm to [NAME] with intent to cause grievous bodily harm I convict you and sentence you to a non-parole period of seven years commencing 8 May 2013 and expiring 7 May 2020 with an additional term of two years and four months expiring 7 September 2022. For the murder of [NAME] I convict you and sentence you to a non-parole period of 18 years commencing 8 May 2016 and expiring 7 May 2034 with an additional term of six years and nine months expiring 7 February 2041. The overall sentence is a non-parole period of 21 years with an additional term of six years and nine months. 4. [NAME], for causing grievous bodily harm to [NAME] with intent to cause grievous bodily harm I convict you and sentence you to a non-parole period of seven years commencing 4 May 2013 and expiring 3 May 2020 with an additional term of two years and four months expiring 3 September 2022. For the manslaughter of [NAME] I convict you and sentence you to a non-parole period of eight years commencing 4 May 2016 and expiring 3 May 2024 with an additional term of three years and six months expiring 3 November 2027. The overall sentence is a non-parole period of 11 years with an additional term of three years and six months.

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