Murder Sentencing Decision in NSW Supreme Court

The Supreme Court of New South Wales sentenced two individuals for murder and related offenses, applying non-parole periods that exceeded the standard period due to the severity of the crimes.

Supreme Court New South Wales

Medium Neutral Citation: R v [NAME]; R v [NAME] [2021] NSWSC 1147 Hearing dates: 17 August 2021 Decision date: 29 September 2021 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: [NAME] for 29 years and 3 months with a non-parole period of 20 years and 9 months. [NAME] for 28 years 9 months with a non-parole period of 22 years 3 months. Catchwords: SENTENCING – murder – principal in the first degree – principal in the second degree – machete used to kill victim – home invasion to steal drugs – related offences – three offenders – extended joint criminal enterprise – knowledge of machete and planning of home invasion – objective severity above mid-range – parity – totality – partial accumulation – Bugmy principles applied – discretion to set commencement date – discount for facilitating a shorter trial should ordinarily be lower than discount for plea obviating need for trial – quantification of discount - mitigation for facilitating administration of justice allowed but not quantified Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Droudis v R [2020] NSWCCA 322 R v [NAME] [2020] NSWSC 1478 Category: Sentence Parties: [NAME] (Offender) [NAME] (Offender) Representation: Counsel: [redacted] [NAME] ([NAME]) [NAME] ([NAME])

Solicitors: [redacted] [COMPANY](s): 2018/394882; 2018/396315

Judgment 1. HIS HONOUR: [NAME] and [NAME] are to be sentenced for the murder of [NAME] at Whitebridge on 17 December 2018. [NAME] pleaded guilty and [NAME] was found guilty by a [NAME].

2. The maximum penalty for murder is imprisonment for life, although in this case the Crown does not suggest that it should be imposed. There is also a standard non-parole period of 20 years.

3. They have each also pleaded guilty to related offences of stealing from the person and impersonating a police officer with the intention of deceiving. Additionally, [NAME] pleaded guilty to an offence of driving recklessly and at a speed and manner dangerous to others after not stopping during a police pursuit. The sentences to be imposed for these offences must be within the limits of what could have been imposed by the [ADDRESS] where they would otherwise have been finalised (2 years' imprisonment and/or a fine). There is also a period of disqualification in respect of [NAME]' police pursuit offence. Each of the sentences to be imposed for these offences will be reduced on account of the pleas of guilty.

The offences 1. [NAME] was 60 years old and lived with his brothers, [NAME] and [NAME], in a house in [ADDRESS], Whitebridge, a southern suburb of Newcastle. [NAME] was very unwell and got about with the aid of a walker. He has since passed away. [1] 2. [NAME] had worked for many years as a cement renderer but he also supplied small amounts of cannabis from his home. He was killed in their home in horrific circumstances in the early hours of Monday 17 December 2018.

3. There were three offenders, [NAME] and a man I will refer to by the pseudonym, [NAME]. [2] [NAME] gave evidence that he had been acquainted with [NAME] for a few years while [NAME] was someone he simply knew of. [3]

4. On Sunday 16 December 2018 (or soon before) [NAME] spoke to an acquaintance of wanting to "do Phil's". When the acquaintance tried to deter him he replied, "No, I need cash". [4] 5. [NAME] and [NAME] were at the home of [NAME]' mother at Gateshead on Sunday 16 December 2018. In the early afternoon, [NAME] and [NAME] went to the [NAME] home. They obtained a lift from a man who said he had not previously met [NAME]. He said [NAME] sat in the back and was giving directions, including where to stop when they arrived in Whitebridge. [5] [NAME] and [NAME] got out and walked to the [NAME] home. They knocked on the door and when it was answered by [NAME], they pretended to be police officers. [NAME] asked for their identification and something that looked like a police badge was produced. [NAME] was asked to produce his identification and when he took out his wallet the men grabbed it and ran off. The wallet had about $1000 in it. The police were called and a report was made. [6]

6. Those are the facts concerning offences to which [NAME] and [NAME] pleaded guilty at the sentence hearing; steal from the person and impersonate police officer with the intention of deceiving.

7. The three offenders were among a gathering of people at [NAME]'s home in Marks Point that evening. Quite late in the evening, [NAME] and [NAME] went to the [NAME] where [NAME] got out and went inside to play the poker machines. He lost all his money and came out about an hour later. [NAME] said that when he got back into the car, he said he had no money and "he was going to get on without paying for it"; "something about running through old mate's house". [NAME] gave evidence that he threatened her: "If you say anything, you and your kids are gone". [7]

8. They returned to [NAME]'s home. Sometime later, the three offenders left in a Holden Astra belonging to [NAME]. [NAME] said "they were going to get on", meaning "try and get drugs". [8] 9. [NAME] gave evidence that they were gathered in the garage area at [NAME]'s home when [NAME] asked [NAME] if he wanted to come for a drive and "do something". He agreed. They and [NAME] went for a drive. They stopped somewhere and talked. There was a baseball bat in the back seat. [NAME] explained that they were going to steal drugs from "a bloke". He said [NAME] was not saying much at this point. They got back into the car and drove off. [NAME] was driving and [NAME] was in the back. As they got closer to the house, [NAME] explained more about what was proposed. It included that there were two or three fellows in the house, and they would be taking the bat to scare the occupants but were not going to hurt anyone. [NAME] was making an affirmative contribution; "he was just saying like, 'Yeah, yeah' … just agreeing with him". [9] 10. [NAME]'s attention was drawn to the evidence he gave at his sentence proceedings that [NAME] had said "the weapons weren't going to get used". In response, he said he would not have meant to have referred to "weapons" plural. He claimed that he did not know at this point that [NAME] had a machete; he only became aware of that when they entered the house. [10]

11. When the three arrived at the [NAME] home they alighted from the car and put on gloves and tied some fabric around their faces to avoid being identified. The fabric was black, and it was already in the car according to [NAME]. There was evidence that it had come from a black bed sheet later found at [NAME]' home. [NAME] described them as "ninja masks" in a call he made to triple 0. [11]

12. The three men went to the rear of the house. [NAME] said he had the baseball bat. [NAME] could not remember it, [NAME] must have had a torch; a torch was later found discarded in the premises with [NAME]' DNA on it. The three entered the house through a back window, using an outdoor chair to climb up. [NAME] entered first, followed by [NAME] and then [NAME]. It was as [NAME] went through the window that he pulled out the machete, and this is when [NAME] claimed he first became aware of it. [NAME] estimated it was about 35 or 40 cm long. [12] 13. [NAME] was the first occupant to be confronted. He had a bedroom and small office at the rear of the house, and he was sitting at his desk, using his computer. He heard a noise, looked up and saw a masked man with a large knife crouching in the window. [NAME] grabbed a sliding door between his bedroom and office and threw it in the person's direction. He also threw a coffee table and sprayed another intruder with an antiseptic aerosol. He ran to [NAME]'s bedroom toward the front of the house, pleading, "Please don't hurt me", and called to his brother, "[NAME], there're people in the house with knives". [NAME] woke, jumped up and ran out into the hallway. [NAME] closed the door and grabbed [NAME]'s phone to call triple 0. [13] 14. [NAME] said he proceeded inside the house and found an occupant he later came to know was [NAME] holding [NAME] down. He said, "there was a bit of a struggle". [NAME] was nearby. [NAME] struck [NAME] with the baseball bat to the shoulder and back area. He said he did this about three or four times. [NAME] let go of [NAME]. [NAME] claimed that at no stage did he see [NAME] stabbing or slashing at him. The first he became aware of that was later in the night when he got home and noticed there was blood on himself. [14] 15. [NAME] was asked if it ever appeared to him at any point that [NAME] was going to throw a punch. He answered clearly and distinctly, "No". The Crown Prosecutor then drew his attention to evidence he had given at his sentence hearing in which he said, "I didn't see [[NAME]] throw a punch but it was a stance like his fist was clenched". He agreed he had said that and that it was the truth. He denied he was trying to minimise [NAME]' role. [15] 16. [NAME] said that after he helped [NAME] up the three left the house via the same window through which they had entered; [NAME] first, then [NAME] and then himself. They returned to the [NAME] drove them away. He collided with a construction fence which dislodged the front bumper but drove on. [16] 17. [NAME] remained in his brother's bedroom for several minutes. Upon emerging he saw [NAME] coming from his bedroom, using his walker. They found [NAME] laying on his side on the floor between [NAME]'s office and bedroom. He was conscious but there was blood everywhere and he was bleeding from "a horrible cut" to the arm, [NAME] applied a tourniquet. [NAME] said, "All this for $2000". [17]

18. The first police on the scene arrived at about 2.45am, closely followed by the ambulance. The scene was extremely confronting. There was blood spatter from the front entrance, down a hallway past [NAME]'s bedroom. [NAME] gave evidence that it was about here that [NAME] was being held down by [NAME]. The blood spatter and smears continued down the hallway and into [NAME]'s office and bedroom area. There was a considerable amount of debris on the floor throughout this area from items dislodged from walls and other surfaces. [NAME] found [NAME] lying in the doorway between [NAME]'s office and bedroom. He immediately saw a large wound to his upper arm and did his best to render first aid. He heard [NAME] say, "This is not worth $2000". [18]

19. Police came across the offenders fleeing in the Astra. There was a pursuit for a while and items associated with the robbery, including masks, were being thrown from the car. Eventually they evaded police somewhere near Charlestown and the car was brought to a stop in some bushland. The offenders split up and decamped. [19]

20. Not stopping and then driving recklessly in a police pursuit is the third of the offences to which [NAME] pleaded guilty at the sentence hearing.

21. It was an agreed fact that [NAME] sustained an injury to his left hand inside the [NAME] home. He told [NAME] who saw it some hours after the event that the blood on it was not his and that he had hit (or punched) someone. He cleaned it up and then she strapped it for him. Following his arrest on 22 December 2018 he was taken for treatment at [COMPANY] for an infected laceration and cut tendon over the middle knuckle of the left middle finger. He underwent surgery and was discharged three days later. [20]

22. A forensic pathologist gave evidence that [NAME] died as a result of blood loss from multiple incised wounds. She explained that an incised wound is longer than it is deep, and it is in contrast to a stab wound. She found 23 such wounds on his body, the most serious of which, and the one that was ultimately fatal, was a wound to the upper right arm. There were also 28 blunt force injuries; they could have been caused by a baseball bat or a fist.

23. Police arrested [NAME] on 19 [NAME] on 22 December. [NAME] was not located and arrested until 30 December 2018.

[NAME]' awareness of the weapons 1. An issue of significance for sentencing purposes is when [NAME] became aware that weapons were to be taken into the [NAME] home. He has not at any stage provided an account of what occurred, so it is necessary to look to evidence from other sources. 2. [NAME] gave evidence of [NAME] having a machete with a blade about 400mm long in some form of sheath at [NAME]' mother's home at Gateshead sometime during the day of Sunday 16 December 2018. Mr Mant said that [NAME] did not appear concerned to conceal the machete. In cross-examination he said that [NAME] left the premises just the once during the afternoon, but he conceded that [NAME] was sometimes in other parts of the house. [21] Nevertheless, he was in [NAME]'s presence for a reasonable amount of time so he may well have noticed his possession of the machete. 3. [NAME], the owner of the Astra, said that during the hours she and others were at [NAME]'s home on the Sunday evening she saw [NAME] with a machete about 40-50cm long. She said she saw him pull it out and then return it to "the back of his pants, under his shirt". She agreed in cross-examination she made this observation when she was upstairs attending to a baby and [NAME] was in the back yard. She saw the item when he adjusted the windbreaker, windcheater or large jumper that he was wearing. [NAME] also denied there was a baseball bat in her car that day. [22] 4. [NAME] was living at [NAME]'s home and she was there on the Sunday evening. She said that at some stage there were men there she did not know. One of them had a knife in his jacket. She described it as "just a long, long knife". She had described it to police as "a machete knife". She said the man was standing up with his jacket open and she saw the implement at his right side. The men were talking about going to "get on" which she assumed was a reference to drugs. At some stage the men left the house. The man with the implement said, "Are you ready to go?". He got up and left. He picked up the machete from the side of the lounge. The other men had been sitting alongside him. He put the item into the waistband, into his belt and the men left. There was no attempt in cross-examination to dispute or qualify this evidence in any way. [23]

5. The evidence of [NAME] and [NAME] supports the proposition that [NAME] may well have seen that [NAME] had a machete when they were at [NAME]'s home. 6. [NAME] was in the Astra with [NAME] and [NAME] late on the Sunday night when [NAME] went to the [NAME]. [NAME] was driving. She sat in the back seat where she saw a baseball bat that had not been there when she was in the Astra earlier in the day. [NAME] got out of the front passenger seat to go into the club but before he did, he "took his knife off that was strapped to him and a torch he had and put it in the car". He put it in the front passenger footwell. She described the knife (referred to by others as a machete) as "bigger than the average kitchen knife". [24] 7. [NAME] was sitting in the front passenger seat when [NAME] came out of the club. He asked her to pass him his things. She picked up the knife and the torch and passed them through the window to him. [NAME] was sitting in the driver's seat at this time. In cross-examination, [NAME] said she did not know what [NAME] was looking at when [NAME] put the knife and torch in the front footwell. She agreed that when he asked for the items after leaving the club, [NAME], sitting in the driver's seat, was talking to a man outside the car. [25]

8. With all these witnesses seeing [NAME] in possession of a machete when he was in the presence of [NAME], I am satisfied beyond reasonable doubt that [NAME] was aware that [NAME] was armed with it at least by the time they embarked upon the journey to Whitebridge to carry out the home invasion.

9. I reject [NAME]'s evidence that he was not aware of the machete until [NAME] climbed through the window of the [NAME] home. I accepted it for the purposes of sentencing him but that was done in the absence of the evidence I heard during the course of [NAME]' trial from the four witnesses referred to above. With the benefit of that evidence, I can now conclude that [NAME]'s denial of prior knowledge was a self-serving attempt to minimise his culpability, or perhaps to assuage his profound sense of guilt. His evidence in the trial of [NAME], which was relied upon in submissions concerning this topic by counsel for [NAME], is rejected.

10. I have taken into account the submissions of counsel on this subject. There is some force in some of them when looked at in a piecemeal fashion, but the overall weight of the evidence leads to the conclusion I have mentioned above.

Objective seriousness of the offence 1. In sentencing [NAME] I concluded that the objective seriousness of his offence was within the mid-range (R v [NAME] [2020] NSWSC 1478 at [39]). Some of the factors that bore upon that assessment do not apply in the present case, but it is appropriate I refer to them so that the sentence I imposed on [NAME] can be understood for comparative purposes. They are: ● [NAME] was only aware of the machete at the moment of entry to the house. ● The idea to carry out the home invasion was [NAME] and [NAME]', and [NAME] was invited to come along. He was initially given to understand by the others that no harm was to come to anyone and no weapons were to be used aside from provoking fear. ● [NAME] continued to participate after realising there was more to it than he had been led to believe because he feared what [NAME] might do to him. ● The Crown accepted, as did I, that [NAME]'s role was significantly less than that of [NAME].

1. Matters that do bear upon the objective seriousness of the offence in the case of each offender that I described in sentencing [NAME] are as follows: ● Each offender was one of three men who broke into [NAME]'s home in the early hours of the morning. The house was not only occupied by [NAME] but also by his two brothers, one of whom was unwell and moved with the aid of a walking frame. The occupants were confronted with three intruders, each with the intimidating appearance of being disguised with gloves and facemasks, one of whom was armed with a knife or machete and another with a baseball bat. ● This was a targeted home invasion with the objective of overcoming an [NAME] man for the purpose of robbery. It is the type of crime that strikes fear in people who value the sanctuary of their home. ● The assault upon the [NAME] was manifestly brutal. There were 23 incised wounds and 28 blunt force injuries over the head, torso and limbs. The ferocity of the attack is graphically illustrated by the crime scene photographs showing blood shed across a large area of the house. I could not be satisfied to the required standard that all of the blunt force injuries were inflicted by the offender with the baseball bat. There remains a possibility that some were sustained otherwise in the course of the attack, without it being possible to identify the cause with precision.

1. The culpability of [NAME] is as the principal offender whereas the culpability of [NAME] is on the basis of an extended joint criminal enterprise in the same way as it was [NAME]. The [NAME] were satisfied beyond reasonable doubt that [NAME] was a participant in a joint criminal enterprise to rob [NAME] and he continued to participate in it despite being aware that [NAME] had a machete which he might possibly use to wound [NAME] with the intention of causing him at least really serious harm; and that [NAME] might actually sustain really serious harm.

2. Counsel for [NAME] submitted that his criminality was on par with that of [NAME]. I do not accept that. [NAME] and [NAME] were the prime movers in proposing and organising this most serious crime. [NAME] had nothing to do with the preparations for it. [NAME] and [NAME] clearly had an existing agreement to invade the [NAME] home and rob a 60-year old man. Together, somehow, they had equipped themselves with a baseball bat, gloves and face masks. [NAME] made the initial request to [NAME] to involve himself, the benefit to [NAME] and [NAME] being to add to the strength of numbers. [NAME] continued with the persuasion of [NAME] with the implicit encouragement of [NAME].

3. There are further significant distinctions between the cases of [NAME] and [NAME] that point in opposite directions. One is their respective contributions to the physical violence. [NAME] was armed with the baseball bat and used it to strike [NAME] a number of times. There is evidence that [NAME] "hit" or "punched someone", but there is no detail of the circumstances. The other distinction is that [NAME] had nothing to do with the planning of the home invasion. [NAME] was brought in at the last minute whereas [NAME]' involvement must have commenced a significant time before with the preparation and provision of makeshift face masks fashioned from bedding material at his mother's home where he was staying. By the time they were on their way to the [NAME] home there was a baseball bat, gloves and the masking material in the car. The source of the gloves and the baseball bat is unknown. Further, I have indicated my acceptance that [NAME] was aware that [NAME] was armed, and I accept as a consequence he was aware well in advance of the incursion that it could involve the use in some form of a lethal weapon.

4. In relation to the recruitment of [NAME] to the enterprise, it is of note that [NAME] and [NAME] were aged 24 and 23 respectively whereas [NAME] was aged 19. He was more a fledgling criminal, nowhere near as experienced as the others.

5. The objective seriousness of the murder offence in the case of [NAME] is slightly above the mid-range. In [NAME]'s case, it is obviously more serious than that given he had the lethal weapon and used it to lethal effect in such an unnecessary and brutal fashion.

[NAME]: background and personal circumstances 1. [NAME] was born in 1994 and is of aboriginal heritage. He has a twin brother, an [NAME] brother and two [NAME] sisters. He was aged 24 at the time of the offences and is now 27 2. [NAME], he has not given evidence at his sentence hearing. Instead, there is a history he provided which is set out in a report by [NAME], forensic psychiatrist. 3. [NAME] told [NAME] he was born in Taree. He struggled with his school education. He was not diagnosed with ADHD but was often in trouble for fighting which suggested to [NAME] there were temperamental problems from an early age. He was exposed to people in his community who were drunk and fighting.

4. The family moved to Newcastle when he was aged 8 or 9. The Department of Community Services were involved with his troublesome behaviour at school; he was classified as "uncontrollable". His mother stopped working to look after him and his twin brother. She began to drink more. 5. [NAME] was removed from the family at age 9 or 10. This was about when he last attended school and was placed in Year 4. (This information reported by [NAME] conflicts with a Juvenile Justice report of 18 October 2010 which indicates his schooling continued to at least Year 8.) He was placed in foster care for the next 12 months before being returned to the family. He was again removed about 2 years later and placed in foster care. However, he was unhappy with the placement, remained unmanageable and ended up living on the streets.

6. There was involvement with the Children's Court, but his conduct problems escalated. His mother contracted a terminal illness and died in 2008 when [NAME] was only 13-14 years of age. He then lived in Newcastle with his oldest sister, but he continued committing offences. 7. [NAME]'s offending began at the age of 11 in 2007. It included break and enters, taking cars without the owners' consent, stealing, resisting and hindering police, and driving whilst disqualified. He was first sentenced to detention in a juvenile facility at age 13. There were subsequent matters of violence; assault occasioning actual bodily harm (in 2009), affray (2012), wounding causing grievous bodily harm, causing grievous bodily harm with intent to do so, and armed robbery (2012). There was an offence of arson in 2014. 8. [NAME]'s violent offending, and his general propensity to criminal conduct, is very concerning and gives rise to a need to consider the protection of the community in the assessment of sentence. There is also concern about him already having become institutionalised.

9. For a variety of offences committed in late-2016 he received a total effective sentence of 2 years and 9 months with a non-parole period of 1 year and 9 months, dating from 13 December 2016. Parole was revoked on 9 January 2019 and he was required to serve the balance of parole of 8 months, 28 days from 30 December 2018 to 26 September 2019. The Crown tendered a breach of parole report in which it was indicated [NAME] had failed to report to his supervising officer; he was wanted for new offences ; he had admitted ongoing illicit drug-use; he had failed to attend a D & A information session on 13 December 2018. This was prior to the murder having occurred and even at that point it was recommended that parole be revoked.

10. The fact that [NAME] was on parole at the time of the murder is a significant aggravating feature. He was also on another form of conditional liberty, bail in respect of offences for which he was charged on 24 September 2018.

11. At the [ADDRESS] on 7 April 2020, [NAME] received an aggregate sentence of 3 years with a non-parole period of 2 years for offences committed on the day of his arrest for the present matter, 30 December 2018, and for others, some for which he had been on bail at the time of the murder. The offences committed on 30 December 2018 were drive whilst disqualified, drive conveyance taken without consent, police pursuit and three offences of having suspected stolen goods in possession. The earlier offences were drive conveyance taken without consent, drive whilst disqualified, resist police officer, being carried in conveyance taken without consent and aggravated break, enter and steal.

12. The Corrective Services NSW custodial history for [NAME] indicates he has a shocking history of disciplinary infractions. 13. [NAME] has a long history of drug use. He started smoking cannabis at age 8 or 9. He claimed to [NAME] that he was led astray by [NAME] cousins. He was not adequately supervised in the home and there were no positive role models. [NAME] was away for 3-4 years in gaol and his father was away working for most of the week. From 2008 his drug use expanded to amphetamine which became a daily habit and his main drug problem. He underwent a residential rehabilitation program at [NAME] when he was 18 but left the program after 14 weeks, about 3 months short of completion. He continued using drugs and offending.

14. When serving sentences in adult correctional facilities from 2012 he began to use opiates and became addicted. He was released from gaol in July 2016 but returned about 6 months later. He then received a sentence that kept him in until 12 June 2018. On release, he lived with his father in Taree for 2 months. He said he was "doing good", being abstinent from drugs and looking for work. He was trying to get on Buprenorphine, an opiate replacement therapy. He relapsed into drug use in about August 2018. Counselling was recommended by his parole officer.

15. A car crash occurred on 21 September 2018 that killed his friend, [NAME]. This gave rise to a serious charge that was recently finalised (see below). He told [NAME] that he struggled to cope with this because [NAME] had been a friend for about 10 years, and she was [NAME] at the time. He described her as being "like a little sister". 16. [NAME] suffered injuries in the crash himself. He was charged in relation to the incident on 21 September 2018 while he was still in hospital. He was bailed to live with his partner at Glendale and his parole supervision was transferred to Newcastle Community Corrections. His bail conditions were strict; he was only allowed out from home for medical appointments and to obtain methadone doses.

17. Presumably based on what [NAME] told him, [NAME] reported that the effects of increased stress, physical problems, pain, guilt, and depressed mood lead to a significant increase in drug use in November 2018, despite the strict bail conditions and being on parole. He was using drugs up until his arrest on 30 December 2018. Police had come to his home on 5 December 2018 in relation to a matter dating back to 2015 which led to him "taking off" and essentially being "on the run". He continued using drugs: about 1g/day of ice, heroin, methadone, and Xanax. He described a fluctuating emotional state. He told [NAME] that his primary purpose in going to the [NAME] home was for "money and drugs". 18. [NAME] told [NAME] he felt sorry for the death of [NAME] and said he now felt "terrible" about it. He also said he felt sorry for [NAME]'s family. 19. [NAME] noted a number of other aspects of [NAME]'s life. He had never worked in paid employment. He described feeling "normal" in gaol. He felt very upset when as a child he was removed from the family home and he "hated both [NAME] and police for taking me away". He also claimed to have been sexually abused by a male and female worker in a juvenile detention facility when he was aged 11. 20. [NAME] wrote that [NAME]'s background history, especially as a young indigenous male, was analogous with the type referred to in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. I accept that is so. It explains, albeit incompletely, how he has ended up as he has. His moral culpability for his offending is less than it otherwise would be on this account. 21. [NAME] made diagnoses of substance use disorder and antisocial personality disorder. These are unsurprising. He recommended treatment in relation to his violent tendencies and drug addiction.

22. A letter from one of [NAME]'s [NAME] sisters expresses her support for him. She describes him in very positive terms "when he is not abusing drugs". A letter from his father is similarly supportive. 23. [NAME] submitted that "some modest allowance" should be made for remorse "with the expressions available, and the plea of guilty". To establish this as a matter of mitigation, [NAME] bears the onus of persuasion on the balance of probabilities that he has accepted responsibility for his actions and that he has acknowledged any injury, loss or damage caused by his actions. I have not heard directly from him. He might be remorseful, but I am not sure.

24. The same submission was made in relation to rehabilitation. The legislation provides that it is a mitigating factor if an offender has good prospects of rehabilitation. Additionally, it is a mitigating factor if an offender is found to be unlikely to reoffend. I am not persuaded about either of those matters. For the moment at least, his prospects appear bleak.

[NAME]: miscellaneous matters relevant to sentence 1. [NAME] was committed to this Court for trial on the charge of murder on 5 February 2020 and upon arraignment on 17 April 2020 he entered a plea of not guilty. On 7 August 2020 he asked to be re-arraigned, whereupon he changed his plea to one of guilty. The parties agree that in accordance with the relevant legislation his sentence is to be reduced by 10% for the utilitarian value of the plea of guilty. (It is not proposed to quantify a particular percentage reduction for the pleas of guilty to the related offences but if it had been it would have been greater than 10%.)

2. At the time of the sentence hearing on 17 August 2021, [NAME] was serving the balance of the parole period of the sentence imposed on 7 April 2020 until 29 December 2021. It was accepted at that point by his counsel that the sentence might be specified to commence on the expiration of the last existing non-parole period which would be 30 December 2020. 3. [NAME] was sentenced on 20 August 2021 by his Honour Judge Ellis in the District Court at Newcastle in respect of aggravated dangerous driving causing death and possessing a shortened firearm. Further offences were taken into account. The details of all of the pre-sentence matters that have a bearing on the question of when to specify the commencement date of the sentences I am to impose are graphically represented in an annexure R v [NAME] (2685, pdf) to this judgment, with the bare details as follows: Court details Overall sentence Commencement date [ADDRESS] 7.4.20 3 years 30 December 2018 NPP 2 years [ADDRESS] 29.5.17 – balance of parole following revocation 8 months 30 December 2018 20 days 8 years Newcastle District Court 20.8.21 6 months 30 June 2020 NPP 5 years

1. Further written submissions were received from [NAME] and the Crown Prosecutor after the remarks on sentence of Judge Ellis became available. As the Crown pointed out, the goal is to ensure that overall there is a sentencing imposition upon the offender that is a just and appropriate measure of the total criminality involved. It can be readily accepted that [NAME]'s criminality in respect of the prior matters, but most particularly offences for which he was recently sentenced, is substantial and so too is it for the murder of [NAME]. Moreover, they are discrete instances of offending. [NAME] accepted these propositions.

2. The Crown also pointed to the potential anomaly of taking into account as an aggravating factor that [NAME] was on bail for some of the offences considered by the District Court but then to impose a sentence that involves a measure of concurrency with the District Court sentences.

3. The Crown submitted that the appropriate commencement date for the sentence to be imposed in this Court is at the expiration of the non-parole period imposed in the District Court, ie 30 June 2025. As I understand it, this contention does not depend upon acceptance of the proposition in the paragraph immediately above; it is called for in any event for the reason set out in the paragraph preceding it. 4. [NAME] argued for there to be a measure of concurrency with the sentence imposed in the District Court. It was also contended that there should be an adjustment made no matter the extent of partial accumulation so as to achieve an overall ratio of non-parole period to total effective sentence of 3:1.

5. To have regard to totality, it is necessary to know something of the offences the subject of the recent sentencing. The most serious of those matters was of very grave criminality. As described by Ellis DCJ, [NAME], a disqualified driver, was driving a stolen high-performance car in the early hours of 21 September 2018 with a [NAME] and her boyfriend as passengers. In a 60 km/h zone on the [ADDRESS] at Charlestown he approached a red light at an intersection at a speed of 136 km/h with a truck having commenced to make a turn out of a side-street. He tried to swerve around the truck and lost control. The car hit various objects, became airborne for a time, and ended up colliding with objects within a service station. The stolen car caught alight. The [NAME] succumbed to her injuries and died in hospital three weeks later.

6. The offences which were also factored into the aggregate sentence imposed concerned the finding of a loaded, unregistered, shortened shotgun in the wreckage of the stolen car, driving that car when it was stolen, driving whilst disqualified, and having custody of a knife in a public place (a large knife fell from his clothing as it was being cut by paramedics who were treating him).

7. I have noted the review of [NAME]'s background in the sentencing remarks of Ellis DCJ. I note that he had regard to the circumstances of [NAME]'s upbringing in a similar way as I have.

8. Ellis DCJ had regard to the principle of totality with respect to the sentence imposed upon [NAME] in the [ADDRESS] on 7 April 2020 and the balance of parole period of 8 months and 20 days he served from 30 December 2018. He resolved to commence the aggregate sentence he imposed on 30 June 2020.

9. I accept the submission of counsel that there should be an adjustment of the sentencing ratios because the sentence is being partially accumulated upon the District Court sentence. The intention is that the non-parole component of the murder sentence will be less than it otherwise would have been so that the total effective sentence when considered in conjunction with the recent sentence imposed in the District Court will have a minimum custodial component of 75%. There is no other justification for finding special circumstances.

[NAME]: background and personal circumstances 1. [NAME] was born in 1995. He was aged 23 at the time of the offences and is now 26.

2. He has not given evidence, at either his trial or at his sentence hearing. I am left to derive the following information about him second-hand from a report also prepared by [NAME]. 3. [NAME] was born in Tasmania and moved to New South Wales with his family soon after. His parents were drug users and they separated when he was 4-5 years of age. He remained in the care of his mother, continuing when she re-partnered. His younger siblings were removed by [NAME] but later returned to his mother's care. Ironically, her drug use had ceased but she relapsed when the other children were restored to her. 4. [NAME] told [NAME] he had emotional troubles as a child, and he was diagnosed with attention deficit hyperactivity disorder, oppositional defiant disorder and conduct disorder. He was placed in behavioural school when he was an adolescent and left school in Year 10.

5. His employment experience is limited. He was an apprentice chef for a couple of months, then did some demolition work and gyprocking work for short periods.

6. A general practitioner thought [NAME] was suffering from anxiety and depression at the age of 17 or 18. This was in the context of some family law child custody proceedings concerning his oldest daughter. He told [NAME] he felt depressed and used drugs to make himself feel better. He used methylamphetamine and heroin. He saw his GP intermittently in his adolescence and early 20s in relation to the anxiety and depression but did not disclose his drug use. Ice was the main drug he used up to age 18 and from then he used heroin and rapidly became addicted. He was using 1g per day up until his arrest. 7. [NAME] had two further children when he was in his early 20s. His criminal history which I am about to describe has disrupted his ability to spend time with his family. In the period of about 33 months from March 2016 until his arrest in December 2018 he has spent time in custody in 3 periods amounting to a total of about 20 months. [NAME] noted that [NAME] was released on 10 November 2018 after spending 6 months in gaol and then spent only a week with his de facto partner in Muswellbrook before going to Newcastle "so he could get drugs". He is fortunate that he retains his partner's support, apparently, as well as that of his parents. 8. [NAME]' criminal history commenced in the Children's Court in 2012 when he was aged 16. There were quite a few offences of a domestic violence nature but there was also a police pursuit and a robbery for each of which he was sentenced to a juvenile detention facility. As an adult there are a number of instances of driving whilst disqualified or suspended, driving recklessly, another police pursuit, two instances of carrying a knife in public as well as of resisting police in the execution of their duty.

9. On 23 July 2018 he was placed on a 2½ year good behaviour bond which was obviously current at the time of the offences on 16-17 December 2018.

10. On 11 October 2018 he was sentenced to imprisonment for 8 months with a non-parole period of 6 months for driving recklessly and driving whilst disqualified, the sentence being backdated to commence on 11 May 2018. He was serving the parole period of that sentence as at 16-17 December 2018. Parole was revoked and he was required to serve the balance of the sentence from 22 December 2018 until 16 January 2019.

11. The fact that [NAME] was on conditional liberty in the form of the bond and the parole at the time of the offences is a significant aggravating feature. 12. [NAME] provided a brief description of what [NAME] told him about the circumstances of the offences and what he now thinks of them. I am not prepared to accept glib assertions such as he "did not intend for anyone to get hurt" and it was a "bad choice to go there" when he has not provided any detail, or given a first-hand account in the sentence proceedings. 13. [NAME] said that [NAME] met the criteria for the mental disorders relating to substance use and of attention deficit hyperactivity disorder. 14. [NAME] referred to the nature and content of [NAME]' criminal history and opined that he is an impulsive and immature individual with ADHD and drug addiction as his main clinical problems, rather than having entrenched antisocial values and/or any predilection towards instrumental violent offending. I accept his assessment that [NAME]' participation in the offending appears to have been motivated by his addiction to drugs at the time and the negative company he was keeping, rather than any pre-contemplated desire or intention on his behalf to kill the victim.

15. For the future, [NAME] suggests an appropriate pharmacological approach to deal with the addictive disorder. He also suggests referral to a clinical psychologist working for Corrective Services NSW to address emotional problems and general propensity to low mood and anxiety. [NAME] anticipated that these conditions might improve post-sentence but suggested referral to a psychiatrist otherwise. Participation in rehabilitative treatment problems were also recommended.

16. Counsel for [NAME] submitted that I should accept that his upbringing occurred in circumstances of social deprivation. Reference was made to his parents being drug addicts and his diagnosis at a young age with ADHD, ODD and CD. In oral submissions, counsel characterised the issue as more what [NAME] was exposed to than a matter of social deprivation. It may be readily accepted that he did not have an advantageous family life and his exposure to drug use at an early age probably contributed to his recourse to drug use before he was able to exercise a mature judgment on the sense of doing so.

17. It was not suggested that I should find [NAME] to be remorseful and nor was it contended there are good prospects of rehabilitation and an unlikelihood of reoffending. I accept counsel's hopeful submission that he has "some prospects of rehabilitation if he can stop using the drugs". [26]

[NAME]: miscellaneous matters relevant to sentence 1. The Crown submitted that I could make a finding in [NAME]' favour that he facilitated the administration of justice and thereby allow him some reduction of sentence. This is a reference to the manner in which there was co-operation in the efficient conduct of the trial. There were quite a number of matters that were the subject of agreed facts and the overall length of the trial was far less than had been anticipated at the time it was listed because the disputation was confined to the real issues in dispute.

2. The Crown suggested that quantification of a discount was "desirable" and that up to 15% would be appropriate. Reference was made to the case of Droudis v R [2020] NSWCCA 322 where the Court suggested that quantification of a discount was desirable if the facilitation made a significant difference to the sentence, but it did not mandate it and said that not doing so would not be erroneous. In saying it was desirable to quantify a discount it does not appear that the Court gave consideration to the ramifications of encouraging such a new practice. For example, it is usual in speaking of discounts for pleas of guilty and assistance to authorities to be talking in terms of 10-25%. Occasionally one hears of discounts of 5%. But how does one compare the discount that is required under the Early Appropriate Guilty Plea scheme for a late plea of guilty, that is generally required to be 10%, with a discount for someone who co-operates in the running of a trial, but who has nonetheless required there to be a trial. Usually with a [NAME].

3. This case provides a stark example of the need to compare. It would seem inequitable that [NAME] might receive a discount of 15% as the Crown suggested he might, while [NAME] would only receive one of 10%. In the ordinary course, one would expect the benefit for the person who co-operated in the running of a trial to be less than the benefit given to a person who obviated the need for a trial at all.

4. If that is accepted, and there is to be quantification of discounts for persons who facilitate the administration of justice, how does one discriminate between persons who facilitate to a substantial degree and those who do so to a far lesser extent? Are judges to descend into the trivial pedantry of speaking in terms of discounts of 7-8% for the former and maybe 2-3% for the latter? The thought of doing so is unpalatable.

5. Until the Court of Criminal Appeal gives further thought to the issue, I propose to continue with longstanding sentencing practice and not engage in any quantification. I simply record that I have considered the issue as significant and made more than a trivial allowance in the offender's favour. For the reasons given, even if I were minded to quantify, I would not adopt either the 15% figure first suggested by the Crown as an upper limit, or the figure of 10% suggested during the hearing.

6. The sentences for each of the related offences will be reduced to reflect the utilitarian value of the pleas of guilty. For the police pursuit offence there is also an automatic period of disqualification for 5 years with a minimum of 2 years which will take effect after release from custody.

7. It is necessary to have regard to the principle of totality in considering the degree by which the individual sentences should be served concurrently or consecutively. 8. [NAME] has been held in custody since his arrest on 22 December 2018. For the first month he also served the balance of the parole period of an earlier sentence. There is a discretion as to when the sentences to be imposed today should commence. Having regard to totality I propose to commence the first on 22 December 2018.

9. A submission was made that there were special circumstances for reducing the non-parole component of the sentence. They were [NAME]' relative youth, his mental health and his substance use disorder. Each of those matters have been considered in the assessment of the sentence. The parole period that will be allowed will be sufficient and no further reduction will be made.

Parity 1. It is necessary to ensure there is due proportion between the sentences imposed upon each offender for the murder. I have previously referred to matters of distinction in terms of objective gravity. [NAME] and [NAME] there are differences in their subjective cases but not such as to call for any great difference in the outcome. There are subjective matters that favoured [NAME] that do not apply in their cases. Most obvious of those is the substantial reductions of his sentence for his plea and assistance to authorities. In addition, he was younger and his criminal history was less. He was genuinely remorseful and had good prospects of rehabilitation. I adopted a starting point for his sentence of 25 years which was then reduced by a total of 40% for the plea and assistance, resulting in a sentence of 15 years with a non-parole period of 11 years and 3 months.

Family victim statements 1. When sentencing [NAME] I referred to the statements provided by [NAME]'s sister, and [NAME], his daughter. I wish to reiterate the remarks I made on that occasion.

2. I said that the consequences for the family have been dire. The three brothers were living in the family home they grew up in and it is said, rightly, to have been a place in which they should have been safe. Instead, one of them was killed and the others were scarred by the trauma. Sadly, [NAME] passed away on 30 September 2019. 3. [NAME] is described as a man of honour and integrity. He was humble, genuine, sincere and loyal. He wanted his daughters to be happy and his love and pride for them was unconditional. I gather he felt the same for his grandchildren and would have for the great grandchildren who were on the way.

4. The murder of [NAME] was completely senseless, and yet it has left his family and friends with interminable grief. Drawing from something Ms [NAME] wrote, I hope that the family derive continued comfort in thoughts about the way [NAME] made them feel loved and safe.

Orders 1. I propose to impose an aggregate sentence for the related offences in respect of each offender. The sentences I otherwise would have imposed in respect of each offender are 13 months (steal from person) and 9 months (impersonate police officer) and for the additional offence concerning only [NAME], 9 months (police pursuit).

2. I do not propose to set a non-parole period because of the accumulation with the sentence for the murder. [27]

[NAME]

1. Convicted. Steal from person and impersonate police officer: aggregate sentence of imprisonment for 1 year and 4 months. The sentence is to date from 30 December 2023. Murder: sentenced to imprisonment comprising a non-parole period of 20 years and 3 months and a balance of the term of the sentence of 8 years and 6 months. The sentence is to date from 30 June 2024. The offender will become eligible for release on parole when the non-parole period expires on 29 September 2044. For the murder alone, the sentence is one of 28 years 9 months. If not for the plea of guilty it would have been 32 years. The overall term is 29 years and 3 months with a non-parole component of 20 years and 9 months. In conjunction with the pre-existing sentences, the total effective sentence to which [NAME] will become subject is 34 years and 3 months with a non-parole component of 25 years and 9 months.

[NAME]

1. Convicted. Steal from person, impersonate police officer, police pursuit: aggregate sentence of imprisonment for 1 year and 8 months. The sentence is to date from 22 December 2018. In respect of the police pursuit offence: disqualified from holding or obtaining a driver's licence for 2 years. Murder: sentenced to imprisonment comprising a non-parole period of 21 years and 6 months and a balance of the term of the sentence of 6 years and 6 months. The sentence is to date from 22 September 2019. The offender will become eligible for release on parole when the non-parole period expires on 21 March 2041. That is an overall term of 28 years and 9 months with a non-parole component of 22 years and 3 months.

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Endnotes 1. [NAME]' trial, tcpt, 1 March 2021, p 115 2. The real name of "[NAME]" is the subject of a non-publication order because he agreed to give evidence for the prosecution. 3. [NAME]' trial, tcpt, 2 March 2021, pp 155-6 4. Statement of Facts in R v [NAME] at [3]; see also [NAME]' trial, tcpt, 2 March 2021, pp 151-3. 5. [NAME]' trial, tcpt, 26 February 2021, pp 34-5 6. [NAME]' trial, tcpt, 1 March 2021, p 71 7. [NAME]' trial, tcpt, 1 March 2021, pp 91-3 8. [NAME]' trial, tcpt, 1 March 2021, p 93 9. [NAME]' trial, tcpt, 2 March 2021, pp 160, 164 10. [NAME]' trial, tcpt, 2 March 2021, p 163 11. [NAME]' trial, tcpt, 2 March 2021, pp 165-6; [NAME]' trial, Exh R 12. [NAME]' trial, tcpt, 2 March 2021, pp 166, 169-70; [NAME]' trial, Exh M 13. [NAME]' trial, tcpt, 1 March 2021, pp 113-6 14. [NAME]' trial, tcpt, 2 March 2021, pp 171-3 15. [NAME]' trial, tcpt, 2 March 2021, pp 174-6 16. [NAME]' trial, tcpt, 2 March 2021, p 177 17. [NAME]' trial, tcpt, 1 March 2021, pp 116-7; [NAME]' trial, Exh R 18. [NAME]' trial, tcpt, 1 March 2021, p 128 19. [NAME]' trial, tcpt, 2 March 2021, pp 177-8 20. [NAME]' trial, tcpt, 1 March 2021, pp 96-8; [NAME]' trial, Exh U 21. [NAME]' trial, tcpt, 26 February 2021, pp 27-9 22. [NAME]' trial, tcpt, 1 March 2021, pp 82, 84-5 23. [NAME]' trial, tcpt, 1 March 2021, pp 104-9 24. [NAME]' trial, tcpt, 1 March 2021, pp 89-90 25. [NAME]' trial, tcpt, 1 March 2021, pp 91, 102 26. Sentence hearing, tcpt, 17 August 2021, p 12(5)

27. The fact that the aggregate sentence is what is sometimes referred to as a "fixed term" should not be taken to mean it has been reduced to the level of what would otherwise have been a non-parole period. There is statutory power to decline to set a non-parole period but not to reduce a sentence. 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: 29 September 2021