Director of Public Prosecutions v Taylor

[2023] ACTSC 39

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Taylor
Citation:	[2023] ACTSC 39
Hearing Date:	8 March 2023
Decision Date:	8 March 2023
Before:	Mossop J
Decision:	See [49]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – murder by joint commission – offender accompanied co-offender who shot deceased through his front door – deceased shot as a result of mistaken identity – intention to commit home invasion –
offender reckless as to fact that in committing the home invasion
a co-offender might go further and commit murder – offence in mid-range of objective seriousness – consideration of discount for providing assistance to authorities – significant mitigatory factors – reasonable prospects of rehabilitation
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(za), 35, 36 Crimes Act 1900 (ACT), s 12 Criminal Code 2002 (ACT), s 45A Legislation Act 2001 (ACT), s 122(1)(b)
Cases Cited:	Borg v The Queen [2019] NSWCCA 129 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Miller v The Queen [2018] ACTCA 21; 273 A Crim R 27 Pikula-Carroll v The Queen [2022] ACTCA 12 R v Borg [2017] NSWSC 746 R v Carbone [2022] NSWSC 373 R v Evans [2017] NSWSC 1440 R v Gatt (No 11) [2018] NSWSC 991 R v JJ (Unreported, Supreme Court of the Australian Capital Territory, Refshauge ACJ, 8 October 2013) R v Kai Edgar Yuen [2013] ACTSC 106 R v Medich (No 43) [2018] NSWSC 886 R v Ngata [2015] ACTSC 356 R v Rolfe [2017] NSWSC 1393 R v Safarjalani (No 2) [2019] NSWSC 105 R v Schmidt [2013] ACTSC 295 R v Swan; R v Kimura (No 2) [2016] NSWSC 1819 R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764 R v Weston (No 3) [2017] NSWSC 1385
Parties:	ACT Director of Public Prosecutions
Gary Taylor (Offender)
Representation:	Counsel
A Williamson SC (DPP)
T Kelliher (Offender)
Solicitors
ACT Director of Public Prosecutions Tim Sharman Solicitors (Offender)
File Number:	SCC 216 of 2022
MOSSOP J:
Introduction

1.       Gary Taylor has pleaded guilty to a charge of murder of Glenn Walewicz. That is a

contravention of s 12 of the Crimes Act 1900 (ACT). The maximum penalty is life

imprisonment.

2.       It is necessary to acknowledge at the commencement of these reasons that the death of

Mr Walewicz was particularly tragic because he was shot as a result of mistaken identity

when the offenders, intending to commit a home invasion, went to the wrong unit and

shot him when he came to the door. He did not know his killers and was entirely innocent.

That makes his loss particularly hard for his friends and family.

Facts
3.	The facts upon which the offender is to be sentenced are agreed and are set out in a
statement of facts which was admitted into evidence at the sentence hearing. In
summary the facts are as follows.
4.	Nicole Williams lived in Holt. She regularly consumed methamphetamine and cannabis.
The offender, who was aged 23, was staying at her house. Also staying at her house
was a young person unrelated to Ms Williams who was 12 years old. He will be referred
to as YP.
5.	At the house there was a .22 calibre pump action rifle which Williams had placed under
her bed and was attempting to sell.
6.	On 9 June 2021 Nicole Williams provided the offender’s number to Jayden Williams and
said that Jayden Williams should message him when another young person, who I will
refer to as KR, was ready to “do… over” two other people, Juliann Williams and Rhys
Dugdale.
7.	On 10 June 2021 Jayden Williams was in contact with his mother indicating that KR was
ready to “go do Rhys over” and was attempting to call the offender. That evening Nicole
Williams, KR, YP, the offender and Reatile Ncube met at Williams’ address in Holt. Williams introduced KR to the offender and YP. She told them to do a “run through” of
Rhys Dugdale and Juliann Williams’ premises because those persons owed her money.
She instructed them to take any drugs and money they found at the premises. Williams
retrieved the .22 calibre pump action rifle from under her bed and provided it to KR. She
told the offender and KR that she believed Rhys Dugdale might be in possession of a
firearm of his own and he might shoot at them.
8.	Nicole Williams promised to provide the offender with some of the methamphetamine
that she expected he would find at the premises. She put a “crack pipe” which contained
methamphetamine in YP’s mouth, lit the pipe and told him to inhale. She told YP that he
would be accompanying the offender and KR. This was the first time that YP had
consumed methamphetamine.
9.	KR, Ncube, YP and the offender left Williams’ address at 10:46pm. Nicole Williams did
not accompany them. On that evening Glenn Walewicz was at home with his girlfriend.
At 11:35pm KR, the offender and YP went to the door of their unit. Ncube waited in the
car. KR was carrying the rifle. The offender was carrying a small axe. The offender
knocked on the front door. Mr Walewicz answered. KR shot him. Mr Walewicz stumbled
back from the door and fell to the ground. The offender, KR and YP fled from the unit.
The shooting happened at about 11:38pm.
10.	Police and ambulance were called and arrived at 11:52pm. Mr Walewicz was treated by
ambulance paramedics but was declared life extinct at the Canberra Hospital at
12:15am. The autopsy identified the cause of death as a gunshot wound to his neck and
chest.
11.	The offender’s liability for murder is on the basis of joint commission pursuant to
s 45A(1)(b)(ii) and (3) of the Criminal Code 2002 (ACT) because the offender was
reckless as to the fact that in the course of committing the agreed home invasion one of
his co-offenders might go further and commit murder or a similar offence. This involves
the offender accepting that he was aware of the possibility that a co-offender might
commit murder. The prosecution does not suggest that the offender was a party to an
agreement to commit murder or that when he attended the unit he knew one of the
co-offenders would commit murder. The prosecution does not assert that he knew that
the gun was loaded.
12.	The offender was arrested almost one year later on 9 June 2022.

Victim impact

13.     A victim impact statement was provided by Mr Walewicz’s mother and read by his sister.

The loss suffered by his mother has obviously been profound. His loss has created a massive hole in her life. He was her only son. She spent most weekends with him. She

records her grief as being overwhelming, feeling pain every day. She records that “Glenn

was a kind of glue that kept the extended family together. And he was very loved by his

community.” She records that he brightened the room and was very kind. With

considerable insight she recognises that she will not be able to move on from the anger

and resentment without psychological help. She feels as though his murder has “stolen

from me the best years of life with my adult son”. She says to the offender: “My son

Glenn did not ask for this, he did not provoke this yet he paid the ultimate price for your

senseless act.”

14.     The court acknowledges the impact disclosed in this statement. It is reflective of an

impact which will be felt more broadly than Mr Walewicz’s mother. It reflects the

additional hurt inflicted as a result of the murder being a terrible mistake.

Objective seriousness

15.     The offence of murder is the most serious offence in the Territory law. It recognises that

the protection and preservation of human life is one of the most important pursuits of a

civilised society. The circumstances in which murders occur can vary significantly. In the

present case, it is important to recognise that the basis for liability for murder is that

outlined earlier, namely joint commission involving recklessness as to the possibility that

a murder might be committed during the home invasion. The offender was aware that

the gun was to be present during the home invasion. Plainly enough the offender did not

pull the trigger. The murder was committed with a deadly weapon and in company. It

was in circumstances where the victim was entirely unsuspecting and unarmed. The

murder itself was not premeditated but the home invasion certainly was. The murder was

in the mid-range of objective seriousness for a murder. The extent of the offender’s

involvement on the basis upon which he is liable for murder obviously makes him less

culpable than KR who carried the gun and pulled the trigger.

Subjective circumstances

16.     The subjective circumstances of the offender are outlined in the pre-sentence report

dated 3 March 2023, a psychological report prepared by Vanessa Edwige dated

13 January 2022 (this is an error, it should be 13 January 2023), a letter from the offender

and three other reference letters tendered on his behalf.

17.     The offender is 24 years old. He is Aboriginal. He indicated that he had been distant from

the Aboriginal community but hopes to reconnect and learn more about his culture in the

future. He was born in Parkes. He lived in Condobolin and Baradine with his family. He

was bullied at school, in particular because of his Aboriginality. His parents separated when he was 14 and he ultimately relocated to Batemans Bay with his father. Prior to

moving to Batemans Bay with his father he did not have a good relationship with his

mother or grandmother. He reported verbal abuse from his mother and physical abuse

from his maternal grandmother. He was also physically abused by his paternal

grandfather when living in Condobolin prior to the move to Batemans Bay. His father was

depressed and continued to use illicit drugs. The offender commenced using

methamphetamine in this period. When he was 17 his father committed suicide. He

discovered his father’s body and unsuccessfully attempted cardiopulmonary

resuscitation. He had limited family support after his father’s death. He now has improved

relationships with his mother and grandmother saying, with considerable insight, “life is

too short to fight with family”. He has three sisters and half-sister. At the time of his

offending he was residing at a friend’s home in Canberra. He is single and does not have

any dependents.

18.     He has largely been of good behaviour while in custody in the Territory and New South

Wales (NSW) and cooperated with the authors of the pre-sentence report.

19.     He did not have a good time at school. He was bullied. He was suspended on multiple

occasions. He left school after being expelled part way through Year 10.

20.     After leaving school he has had limited employment. He has had various short-term

positions. He has been employed while in custody on remand.

21.     He has a limited circle of friends. Some of them use illicit substances. He also has various

acquaintances who use drugs and are involved in criminal activity.

22.     He started using cannabis at the age of 14. He started using methamphetamine at the

age of 16. His use was gradual until his father’s death. It then increased to daily use.

Before his arrest he was using approximately four points of methamphetamine per day.

He recognised that methamphetamine use negatively altered his behaviour and caused

conflict in his relationships, particularly with his immediate family. He did not know how

to give up.

23.     As a child he had been diagnosed with attention deficit hyperactivity disorder and

oppositional defiant disorder. While in custody he described his mental health as “not too

bad”. He has been prescribed antidepressant medication which improved his mental

state.

24.     In relation to the offending, he indicated that his drug use on the day had affected his

ability to think clearly. He said he thought he was attending the residence for a home

invasion and that he had no idea that his co-offender would shoot someone. He said he

felt very sorry for the family of Mr Walewicz.

25.     The letter of the offender to the court expresses his remorse for his offending conduct. It

is difficult to place significant weight upon a letter of that type. However, his other actions

demonstrate in a practical way his remorse for his conduct.

26.     The letter from his grandmother says that he is honest and truthful and has always been

very helpful and done what he could to help people who needed things done.

27.     Another letter from a family friend and resident of Baradine attests to his diligence,

honesty and trustworthiness. It indicates that since his father’s death he has not really

been the same but that with proper guidance he will become “a great young man”.

28.     A letter from a school friend indicates that at school the offender was bullied and subject

to violence. It characterises him as a follower rather than a leader. It describes him having

moved back to Baradine and having what could be described as a quiet life until his

arrest.

29.     I do not place significant weight on the letter from his grandmother or family friend other

than to indicate in a very general way his potential to be a decent person. The letter from

the school friend is more significant insofar as it does identify the offender as a follower

rather than a leader and that is consistent with the relationships involved in the present

offending.

30.     The psychological report of Vanessa Edwige includes some more detail in relation to his

background. She diagnosed him as currently suffering from a persistent depressive

disorder, post-traumatic stress disorder and a stimulant use disorder which is in

remission in custody. She also describes him as having suffered from those conditions

at the time of the offending, except the stimulant use disorder was not in remission. She

concludes that “Mr Taylor’s mental health impairments, and in particular his stimulant

use disorder, impaired his judgment and impacted on his ability to make clear and

rational decisions at the time of the offence”.

Criminal history

31.     The offender has a limited criminal history which involves a number of regulatory driving

offences, a drug driving offence, possessing a prohibited drug and a failure to appear.

This criminal history is not of great significance in relation to a sentence for murder.

Plea of guilty

32.     The offender entered a plea of guilty in the ACT Magistrates Court at a very early

opportunity prior to the preparation of a brief of evidence. Considered in isolation such

an early plea would warrant a reduction, pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT) (CS Act), of 25 percent upon the sentence that would otherwise have been

imposed.

Time in custody

33.     The offender has been in custody since his arrest on 9 June 2022. The sentence imposed

will be backdated to take this period into account.

Assistance to authorities

34.     Having been arrested on 9 June 2022 the offender assisted police by identifying the

location of the murder weapon which had not been discovered by police during the

search of the house where he was living. While being transported to the Territory he

made admissions to police and disclosed information to them in relation to the

background to the offending and the involvement of his co-offenders. He first appeared

in the Magistrates Court on 11 June 2022. On 31 August 2022 he pleaded guilty in the

Magistrates Court and participated in an interview with police in which he made detailed

admissions to police.

35. Section 36 of the CS Act permits the court to impose a lesser penalty than would

otherwise have imposed having regard to the degree of assistance provided to law

enforcement authorities. Section 36 reflects the strong public interest in breaking the

criminal culture of silence and encouraging persons who have committed crimes to assist

police. Regard must be had to the various matters set out in s 36(3). Section 36(4)

provides that the lesser penalty must not be “unreasonably disproportionate to the nature

and circumstances of the offence”.

36.     The principles to be applied in assessing the level of such discount are summarised in

R v Ngata [2015] ACTSC 356 at [55]-[58] and Miller v The Queen [2018] ACTCA 21; 273

A Crim R 27 at [60]-[65]. The level of discount remains a matter that involves the exercise

of a discretion. However, the decision in Ngata indicates a common range of between

20 and 50 percent discount for significant assistance to police. A combined discount of

greater than 50 percent is exceptional. A combined discount of 40 percent has been

awarded in cases of significant assistance where willingness to assist does not give rise

to a significant risk of harm while in custody.

37.     In the present case:

(a) The assistance was significant, as at the time the initial disclosures to police

were made it bolstered the prosecution case against the co-accused from a

circumstantial one to one involving direct evidence.

(b) The Director accepts that the statement provided by the offender and YP were

instrumental in causing KR to plead guilty to murder and Mr Ncube to plead

guilty to being an accessory after the fact of murder.

(c) The offender has agreed to be a cooperative witness at the trial of the remaining

co-accused, namely Nicole Williams and Jayden Williams.

(d) As a result of his cooperation while in custody in the Territory, threats were

made to him. He was ultimately transferred to a correctional centre in NSW for

his safety. He has continued to receive threats there. Following sentence, he is

likely to be moved to a different correctional centre where he is unlikely to be

exposed to a significant risk as a result of his cooperation with authorities.

Nevertheless, there inevitably remains some risk to him as a result of his

cooperation.

38.     The prosecution submitted that the comments in Ngata at [58] “might be taken to

indicate” that a combined discount on account of the plea of guilty and assistance to

authorities in the range of 40 percent would be appropriate. The offender submitted that

a combined discount of “at least 40 percent” should be given to him.

39.     In my view, this is a case where the early plea of guilty and the significant assistance to

authorities warrants a combined discount of 40 percent.

Comparable cases

40.     The parties provided tables of cases said to be comparable to the present. Both included

cases from outside the Territory. Section 33(1)(za) of the CS Act requires “current

sentencing practice” to be taken into account. That should be interpreted as current

sentencing practice within the Territory: Legislation Act 2001 (ACT), s 122(1)(b). That is

not to say that other decisions are irrelevant but simply that the statutory requirement is

a manageable one which focuses on the position in the Territory.

41.     The cases to which I have been referred to are as follows: R v Schmidt [2013] ACTSC

295; Pikula-Carroll v The Queen [2022] ACTCA 12; R v Borg [2017] NSWSC 746; Borg

v The Queen [2019] NSWCCA 129; R v Gatt (No 11) [2018] NSWSC 991; R v Medich

(No 43) [2018] NSWSC 886; R v Safarjalani (No 2) [2019] NSWSC 105; R v Evans [2017]

NSWSC 1440; R v Rolfe [2017] NSWSC 1393; R v Weston (No 3) [2017] NSWSC 1385;

R v Swan; R v Kimura (No 2) [2016] NSWSC 1819; R v Tabbah; R v Tiriaki (No 6) [2014]

NSWSC 1764; R v Schmidt [2013] ACTSC 295; R v Kai Edgar Yuen [2013] ACTSC 106;

R v JJ (Unreported, Supreme Court of the Australian Capital Territory, Refshauge ACJ,

8 October 2013); R v Carbone [2022] NSWSC 373.

42.     It is not necessary to recite the circumstances of these cases in detail. They involve

murders committed by joint commission. They generally reflect circumstances overall

more serious than those of the present offender.

43.     The decision in Pikula-Carroll v The Queen [2022] ACTCA 12 was correctly pointed to

by the prosecution as representing circumstances similar to the present in that it was a

home invasion, it involved a shooting from the entry to the premises which was not

intended to kill the victim and where the sentenced person was not the shooter. The

starting point for the penalty imposed upon the shooter was approximately 21 years’

imprisonment. Following an appeal to the Court of Appeal, the starting point for the

sentence imposed upon Mr Pikula-Carroll was 19 years. However, it should be noted

that (a) Mr Pikula-Carroll was either the instigator or an equal participant in the offending,

whereas the offender in the present case was acting at the direction of Nicole Williams,

(b) Mr Pikula-Carroll did not cooperate with police in a manner that indicated remorse or

an intention to rehabilitate himself and, (c) at least by the time of sentencing,

Mr Pikula-Carroll had a more significant criminal history than the offender in the present

case.

Consideration

44.     Each of the purposes of sentencing is relevant in a case like this. Fundamental to the

exercise must be the recognition of the ultimate harm done to the victim, Mr Walewicz,

an innocent man whose life has been taken from him and whose family and friends will

endure long-term suffering as a result. Obviously in any case of murder general

deterrence must be a very significant consideration. The particular circumstances of this

case, namely a murder committed during an abortive home invasion relating to illicit

drugs, gives rise to a particular need for general deterrence.

45.     The sentence must recognise that the offender is a relatively young man. He has had a

dysfunctional upbringing, marred by trauma, most obviously the death of his father. He

was introduced to illicit drugs as a child when unable to make proper decisions about

their use. He has plainly suffered from the lack of mature adult guidance in his life. As a

result, he has continued to have long-term difficulties with drugs, most particularly

methamphetamine. The dysfunction in his upbringing has led to him being without secure

accommodation and stable family support. It is a case in which those features of his

upbringing can be seen as connected with the circumstances of the present offending in

that through his lack of adult guidance, unstable accommodation and his drug use has

led to an association with Nicole Williams, who in turn has influenced him to be a

participant in a drug-related home invasion. These factors are significant mitigatory ones.

They are not such as to increase the risk of future offending so as to increase the need for protection of the community from the offender: cf Bugmy v The Queen [2013] HCA

37; 249 CLR 571 at [44]. Rather, there remain reasonable prospects for his rehabilitation.

46.     The offender’s diagnosed mental health conditions must be taken into account as part of

his subjective circumstances. They are not so great as to be significant mitigatory factors

in relation to offending of this type. I do not accept the submission that the conditions of

imprisonment will be significantly more burdensome upon the offender because of the

likely absence of optimal psychological counselling or, as Ms Edwidge put it, “a web of

therapeutic support … important for his sense of safety, security and relational health”.

47.     So far as co-offenders are concerned, Mr Ncube, who drove the car and was not present

at the scene of the shooting, was given a partially suspended sentence of imprisonment

of two years. KR has also pleaded guilty but has not yet been sentenced.

48.     In my view, the appropriate starting point is a sentence of 17 years’ imprisonment. For

the reasons given at [39] above, that will be reduced by 40 percent to 10 years and three

months’ imprisonment. Taking account of the subjective circumstances of the offender,

in particular his youth, his limited criminal history and his reasonable prospects of

rehabilitation, it is appropriate to impose a non-parole period at the low end of the usual

range (which is between 50 and 75 percent of the head sentence). That will allow

authorities to assess his progress towards rehabilitation while in custody and give him

every incentive to make good on that potential. It will also result in a long period subject

to supervision in the community so as to ensure that he does not return to illicit drug use

and the criminal conduct associated with it. The non-parole period will be five years and

six months.

Orders

49.     The orders of the Court are:

1.       On the charge of murder (CAN 5505/2022) the offender is convicted and

sentenced to imprisonment for 10 years and three months commencing on

9 June 2022 and ending on 8 September 2032.

2.       The non-parole period commences on 9 June 2022 and ends on 8 December

2027.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 3 April 2023