Medium Neutral Citation:; R v Hawkins; R v Garland (Sentence)

[2024] NSWSC 80

Supreme Court

New South Wales

Medium Neutral Citation:

R v Hawkins; R v Garland (Sentence) [2024] NSWSC 80

Hearing dates:

6, 7 February 2024

Date of orders:

9 February 2024

Decision date:

09 February 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

Mr Hawkins is sentenced to a period of imprisonment of 32 years, commencing on 26 November 2021 and expiring on 25 November 2053, with a non-parole period of 24 years commencing on 26 November 2021 and expiring on 25 November 2045.

Mr Garland is sentenced to a period of imprisonment of 7 years commencing on 25 May 2023 and expiring on 24 May 2030, with a non-parole period of 3 years commencing on 25 May 2023 and expiring on 24 May 2026.

Catchwords:

CRIMINAL LAW – sentencing – murder – cold blooded execution – grandmother killed by shotgun blast in doorway of own home – wanton violence – motive of shooter unclear – assessment of objective criminality – relevant factors to instinctive synthesis – life imprisonment – whether such a sentence warranted – two stage approach – application of authority despite misgivings – aggravating circumstances – relevance of psychiatric assessment – limited relevance – history of childhood trauma and exposure to violence – reduction in moral culpability – devastating impact on victim’s family

CRIMINAL LAW – sentencing – manslaughter – unlawful and dangerous act – dissonance and disconnect between joint criminal enterprise entered by the offender and actuality of brutal assassination – older offender – unusual criminal history – where drug offences committed at around the same time – totality – cumulation and concurrence – commencement date – special circumstances – belated but genuine expression of remorse – unusual procedure – where offender addresses victim’s family from the dock – sentence moderated with leniency

Legislation Cited:

Crimes Act 1900 (NSW) s 19A

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 21A(2)(ea), 21A(2)(n), 22, 22A, 23, 23(2), 23(2)(b), 23(2)(c), 23(2)(d), 23(2)(e), 23(2)(f), 23(2)(g), 23(3), 30E, 44, 61, 61(1), 61(3)

Cases Cited:

AC v R (No 7) [2016] NSWSC 404

Achurch v R (2014) 253 CLR 141; [2014] HCA 10

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453

Ghamraoui v R [2009] NSWCCA 111

R v Brooks [2012] NSWSC 505

R v Burnes [2007] NSWSC 298

R v Christopher John Lenati [2008] NSWCCA 67

R v Farhad Quami, Mumtaz Qaumi& Jamil Quami(Sentence) [2017] NSWSC 774

R v Halloun [2014] NSWSC 1705

R v Hawkins [2023] NSWSC 1370

R v Hawkins; R v Garland [2023] NSWSC 1201

R v Keleklio; R v Sinai [2022] NSWSC 62

R v Luo; R v Liu; R v Fan; R v Bayliss [2021] NSWSC 1500

R v Michael Peter Christiansen [2011] NSWSC 840

R v Millwood [2012] NSWCCA 2

R v MJ [2023] NSWCCA 306

R v Norman; R v Olivieri [2007] NSWSC 142

R v Spinks [2021] NSWSC 649

Regina v Lo [2003] NSWCCA 313

Rogerson v R; McNamara v R [2021] NSWCCA 160; (2021) 290 A Crim R 239

Sumpton v R [2016] NSWCCA 162

Category:

Sentence

Parties:

Rex
Jason Paul Hawkins
Stephen Garland

Representation:

Counsel:
B Hatfield SC (Rex)
B Bickford (Hawkins)
T Hughes (Garland)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Rex)
Hugo Law Group (Hawkins)
SANS Law (Garland)

File Number(s):

2021/00336983; 2021/00356964

Publication restriction:

The names of certain witnesses have been anonymised and parts of the judgment have been redacted to comply with non-publication orders made on 10 October 2023, 6 February 2024 and 9 February 2024.

Judgment

1. On 9 June 2021 Stacey Klimovitch was murdered in her own home. In many ways, it was an incomprehensible crime and, in every way, a callous and brutal one. Two of the three men responsible now stand to be sentenced for their role in the crime. The third, who was the ringleader, died in custody awaiting trial.

2. On Tuesday I heard statements from three of Mrs Klimovitch’s daughters (Alex, Maddie and Steph) and one of her sisters (Bronwyn Scheffer) which gave me some insight into the impact, the grief and the pain that this crime has caused to a raft of family members. These statements – which were courageous, forthright but remarkably restrained – also demonstrated that the society at large, particularly the locals of Stockton and Newcastle, has lost a great character who contributed to the public wellbeing by her good cheer, hearty laugh and commitment to teaching swimming to many members of the community. I am satisfied that these statements establish that Mrs Klimovitch’s death, and the harm suffered by her family, is an aspect of the harm done to the community. On the Prosecutor’s application I have taken this into account in connection with the determination of the appropriate punishment. [1] I will speak more about Mrs Klimovitch and her family shortly, but I must first set out the crimes for which Mr Garland and Mr Hawkins are to be punished and the penalties to which each of them is exposed.

   1. Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3); R v Halloun [2014] NSWSC 1705 at [46]; Sumpton v R [2016] NSWCCA 162 at [153]-[156].

3. After a police investigation in the months following the homicide, three men were identified as having been involved in the murder. The prime suspect from the outset was Stuart Campbell. He had a motive to harm Mrs Klimovitch because of personal animosity between them. This arose out of his relationship with one of Mrs Klimovitch’s daughters, the allegation of an assault by Mrs Klimovitch on Campbell which the latter had reported to police, and a threat by Mrs Klimovitch to report Campbell’s drug dealing to the authorities (a fact not referred to in the agreed facts at either of the trials). However, Campbell set things up so that he had an alibi for the killing itself. Over the following months, in the course of a thorough and effective investigation, police came to suspect that the current offenders – Messrs Hawkins and Garland – were involved. The evidence which aroused these suspicions included information provided by various witnesses who lived at or frequented houses at Heddon Greta and Argenton, the interrogation of telephone records and the painstaking study of closed-circuit television (“CCTV”) footage taken from various locations that Campbell was known to frequent and from routes to and from Stockton.

4. In or by December 2021 all three men had been charged with murder. The prosecution case was that Campbell organised the killing and recruited Mr Garland to drive Mr Hawkins to the scene of the crime, which was Mrs Klimovitch’s home in Stockton, that Mr Hawkins shot Mrs Klimovitch at close range with a shotgun, and that Mr Garland drove him away from the scene after the killing. The three co-accused were due to be tried together, but Campbell took his own life while he was on remand, and I made an order separating the trials of the two remaining accused men. [2]

   2. R v Hawkins; R v Garland [2023] NSWSC 1201.

5. Mr Garland was put to trial between 10 October 2023 and 8 November 2023 when the jury returned a verdict of not guilty of murder but guilty of manslaughter. The jury was not called upon to return a verdict in relation to an alternative count of accessory after the fact to murder. The offence of manslaughter carries a maximum penalty of imprisonment of 25 years.

6. Mr Hawkins’ trial followed, and a different jury returned a verdict of guilty to the single charge of murder on 6 December 2023. Murder carries a maximum penalty of life imprisonment and there is an associated standard non-parole period of twenty years.

7. The thrust of the prosecution case was the same in both trials but there were different bodies of evidence and the more specific findings of fact to which I will return are based on the evidence called in the particular offender’s trial without reference to the evidence called in the other trial. There is no inconsistency between the verdicts and, speaking globally at this point, the verdicts necessarily involved:

1. In each case, an acceptance of the prosecution case that Mr Garland was the driver and Mr Hawkins was the shooter.

2. In Mr Garland’s case, a rejection of the prosecution case (or a failure to accept beyond reasonable doubt) that Mr Garland was a party to a joint criminal enterprise to murder somebody and/or that he was aware of that possibility and drove Mr Hawkins to the scene with that knowledge or awareness.

3. Because of the way the case was framed and put to the jury in argument and in the summing up, it is clear that the jury was not satisfied that Mr Garland was aware that Mr Hawkins was carrying a gun.

4. In Mr Hawkins’ case, a rejection of the offender’s evidence that he was not the shooter and that he got out of the car well before it arrived in Stockton.

8. I will return to set out the factual findings upon which the offenders are to be sentenced. These must be consistent with the verdicts and the evidence called in the separate trials. Where the fact in question is an aggravating feature, it must be established beyond reasonable doubt. Where it is a mitigating factor, the offender bears the onus on the balance of probabilities.

9. The sentencing hearing took pace this week. On Tuesday I heard the statements of Mrs Klimovitch’s family members and received the prosecution evidence in both cases before adjourning Mr Garland’s case to Wednesday 7 February 2024. The evidence in Mr Hawkins’ case was then tendered and the Court received written and oral submissions from Senior Counsel for the prosecution and counsel for Mr Hawkins. On Wednesday, evidence was tendered on behalf of Mr Garland and submissions were made by both parties. Both cases were adjourned for sentence today.

10. As with the evidence called in the separate trials, the evidence called on sentence was different, and I have only considered the material tendered by or against each individual offender. A stark example of this concerned an incident (or incidents) alleged to have occurred on a prison van transporting the offenders to the court complex. This evidence was prominent in Mr Garland’s case on sentence, and I have given it considerable weight. However, it has played no part at all in my consideration of the sentence to be imposed on Mr Hawkins. It was not tendered in his case, he disputes it, and has had no opportunity to test it.

Stacey Klimovitch and the impact of this homicide on her loved ones

11. The victim impact statements provided significant testimony to a woman who was greatly loved by her family and admired by the wider community. Her truly senseless murder has left a massive hole in the lives of her children, grandchildren, siblings, nieces and nephews. Several members of her family kept a dignified vigil over the proceedings here in Newcastle during the nine weeks of pre-trial hearing and back-to-back trials and four provided victim impact statements. At the risk of informality and undue familiarity, I will adopt the shortened names used in three of the victim impact statements.

12. Based on what I have heard, Mrs Klimovitch was obviously quite a character. She was a funny, larger than life, woman with a raucous laugh and (in my words) appeared to be the glue that held the family together. She was also involved in swimming, teaching her family and many members of the community what her eldest daughter, Maddie Klimovitch, described as an important life skill. It was something in which she took pride, and she loved making this contribution to the community. It is worth observing that the hatred harboured by Campbell that led him to set in train this crazy and tragic course of events was caused by Stacey Klimovitch’s instinct to protect her daughter Alex and her newborn grandson. One of her daughters (Steph) referred to her as protective, and this was confirmed by her attitude to Campbell and by her standing up to him.

13. The impact on all members of the family has been devastating but Alex, who was present with her baby at the time of the shooting, has suffered particular trauma. She was the first witness in each of the trials and gave evidence bravely, fighting back tears on each occasion. In the statement read on sentence, she described the impact on her in the shorter term and many of the symptoms of what I will call a “psychological trauma reaction” remain present to this day. I am conscious of the absence of any formal diagnosis or expert evidence but the labels I have just used will not impact on the length of the sentences. However, her description of her physical and mental reaction to her experience shows the impact of the crime has been life changing. For a time, she lived in fear of answering the door, even to the point of asking her friends to tell her when they might visit. At times she has been unable to leave the house, panics at loud bangs, and cannot watch certain films. She has been prescribed with anti-depressants, struggles to control her emotions and has become socially isolated. She said she has grounded her teeth down “to practically nothing” from the anxiety and she no longer smiles as much as she did when her mum was around.

14. Each of the statements spoke in various ways of the difficulties of celebrating birthdays and other milestones and of how the children in the family will never get to know Stacey Klimovitch and be touched, as the authors of the statements have been touched, by this colourful if imperfect woman. Steph, who also teaches swimming, described her mother as “kind, caring, protective, smart, funny and loud”. Steph too has become isolated and takes each day as it comes to try to get through her grief.

15. Bronwyn Scheffer spoke on behalf of Mrs Klimovitch’s mother and siblings. She called the crime “brutal and unnecessary” and spoke of the “unfillable void” that has “wrenched the life” of the entire extended family.

16. I wish to thank the family for providing these statements to the Court. After nine weeks of trial and legal arguments, Mrs Klimovitch finally had a voice in the proceedings and the Court and public had the opportunity of knowing her just a little.

17. As the Prosecutor emphasised, the law regards all human life as sacred, and all people as equally entitled to its protection. The law now allows a sentencing court to receive these statements, and to try to understand and take into account the horrific impact of this kind of offence, in assessing the appropriate sentence. I have done so while recognising that nothing I say today can alleviate the grief and trauma that the family has to endure and acknowledging the truth of Maddie’s words that nothing the Court can do in sentencing will ever seem like “enough justice” for the loved ones that Stacey Klimovitch left behind.

Principles of sentencing and purposes of punishment

18. In sentencing each offender, I must apply the purposes of punishment established at common law and set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

19. The conduct must be denounced, and the offenders must be held to account and punished adequately for their offending. The Court must recognise the harm done to the victims and to the community and must deter these two offenders, and others, from engaging in the kind of reprehensible conduct disclosed in the evidence. Those inclined to offend in this way must know that such conduct will be met with stern punishment. In cases like these, the protection of the community is a significant consideration but, at the same time, the sentence should aim to promote the rehabilitation of the offenders.

20. The weight to be afforded to these matters varies between the two cases. For example, given his age, the length of sentence that must be imposed on Mr Hawkins whether it be life imprisonment or a determinate sentence, leaves little room for rehabilitation. That factor is more pertinent in Mr Garland’s case. In both cases, general deterrence is a matter of substantial weight. The community must know that this kind of wanton violence cannot be tolerated in a civilised society and that the courts will impose substantial and meaningful gaol time to offenders who participate in such crimes. While Mr Garland did not know that the plan was to commit a murder, he chose to drive Mr Hawkins to Stockton – and drive him away from the scene – knowing at some point that a dangerous and unlawful assault was to be committed. On his own case, he did not ask any questions and simply went along with the escapade merely because Campbell placed some pressure on him to do so.

21. The Court must also take into account any aggravating and mitigating features of the case and reach a conclusion as to the objective gravity of each offence and the related question of the offender’s moral culpability. While s 21A of the Crimes (Sentencing Procedure) Act is sometimes (wrongly) used as a check list,[3] I will not attempt to catalogue these factors in a dry, systematic way. Where there are competing submissions, I must and will resolve the conflict bearing in mind the onus and standard of proof to which I earlier referred.

    3. Ghamraoui v R [2009] NSWCCA 111 at [23]; R v Luo; R v Liu; R v Fan; R v Bayliss [2021] NSWSC 1500 at [144].

22. I have considered issues of parity between the co-offenders’ respective sentences and the principle of equal (or proportionate) justice. However, while the offenders were each involved in the same criminal escapade, the differences between the cases are so stark that it is inevitable that the sentence imposed on Mr Hawkins will be dramatically more than that imposed on Mr Garland.

23. I have also considered the maximum penalties in each case and, in Mr Hawkins’ case, the standard non-parole period. Those statutory yardsticks must be borne in mind throughout. They reflect the seriousness of any crime involving the taking of human life.

24. It is important that the cases are considered separately as there should be individual justice for each offender. The evidence in the two trials, while generally consistent, was not the same. Different parts of the evidence were subject to challenges, the witness list was not the same and the parties focused on different aspects of the evidence. As I have said, the same applies to the evidence called on sentence. The proceedings were conducted partly concurrently but there were separate and distinct bodies of evidence.

25. Accordingly, I will now turn to the sentencing of the individual offenders. I will commence with Mr Hawkins and once I have imposed sentence on him, I will invite him to go with the Corrective Services Officers while I turn to sentence Mr Garland.

Factual findings, aggravating circumstances and an assessment of objective gravity in Mr Hawkins’ case

26. Considering the way the case was conducted at trial, the guilty verdict resolved most of the issues between the parties. However, a few issues remain to be resolved, the most significant of which are related and concern the extent to which Mr Hawkins was involved in the planning of the murder, when he agreed to carry out the killing and whether he supplied or owned the gun that was used to kill Mrs Klimovitch. There is also a real question as to what motivated Mr Hawkins to be involved in the offence.

Intention to kill

27. There is no doubt that Mr Hawkins had an intention to kill, as opposed to inflict grievous bodily harm. While it is not universally true, generally murders committed with that intention are regarded as more serious than those where there is an intention to inflict really serious injury.

Mr Hawkins’ reward or motive?

28. Whether or not it is correct to describe Mr Hawkins’ offence as a “contract killing”, it can still be described as a cold-blooded execution of a person with whom Mr Hawkins had no grievance – in fact, it appears he did not know his victim. He carried out the execution on behalf of Campbell and the evidence does not allow for any clear finding on what motivated Mr Hawkins to be involved in such a brutal and senseless criminal enterprise.

28. I cannot accept, as initially submitted on his behalf, that he did what he did out of a sense of “misguided loyalty”. The Prosecutor submitted there were three possible motives or rewards:

1. Monetary payment or promised payment.

2. Drugs or promised supply of drugs.

3. Debt or an obligation of some kind owed to Campbell.

30. Apart from a small payment for car registration, which was solicited by his de facto partner (Jessica Burton) perhaps from her perspective, for wages, there was no evidence of a substantial payment. There was also evidence that Campbell provided the couple with small amounts of drugs. Again, neither of these compensations are likely to have been payment for a contract to kill somebody. I am inclined to infer that Mr Hawkins’ motive was a combination of the second and third possibilities contended for by the prosecution and the power dynamic between the two men. There was evidence that Campbell was a “secretive” and “manipulative” man, with a capacity to use people to do his bidding. [4] The CCTV footage of the men getting ready to depart separately from Heddon Greta appeared to show Campbell directing the others in a fairly forceful and authoritative way. I accept the evidence that Campbell provided some legitimate employment to Mr Hawkins, and it can be inferred that he was in charge of their joint criminal enterprise in dealing and distributing drugs.

    4. Tcpt, 14 November 2023, p 99.

31. There is an element of speculation in this. The reality is only Campbell and Mr Hawkins know how the former managed to persuade the latter to kill Stacey Klimovitch. One of those men is dead and this offender denies involvement at all.

32. While this may not be a classic example of a “contract killing” for money, it is not very far removed from such a case. Whatever be the form of the reward, it is, as the Prosecutor submitted, the kind of murder that courts consider to be at the upper level of objective seriousness.

Planning and the extent of Mr Hawkins’ involvement

33. Counsel joined issue on the question of when Mr Hawkins agreed to carry out the offence and the extent to which he was involved in the planning of the offence. As with the issue of this offender’s motive, the Court is left to draw inferences from the direct evidence.

34. There was evidence that Campbell had approached another man JF in early 2021 to “take care” of Mrs Klimovitch. [5] Plainly, he approached Mr Hawkins after that man declined to be involved. There were telephone communications between the offender and Campbell in May 2021 and between 1-8 June 2021 (Ex 37). The two men travelled from Canberra to Newcastle on 5 June 2021. There was a meeting between them and Mr Garland in Argenton on 6 June 2021, or at least the CCTV footage from outside the local pub showed them to be together for a short time. Mr Hawkins’ evidence was that the purpose this trip was to work for Campbell on his roofing business but the evidence of any legitimate work being done was sparse.

    5. Tcpt, 22 November 2023, pp 525-526.

35. Mr Hawkins drove to back to Canberra on 6 June 2021, driving Dillon McDougall’s Great Wall Utility. He returned to Argenton on 8 June, arriving in the early hours of 9 June, with Jessica Burton travelling in convoy with him. Mr Hawkins gave evidence that he delivered a kilogram of Campbell’s methylamphetamine to Campbelltown in the course of the trip back to Canberra. That evidence was supported by assertions he made to police which was ruled to be inadmissible in the trial. [6]

    6. R v Hawkins [2023] NSWSC 1370.

36. Counsel for Mr Hawkins submitted that his client’s involvement only crystallised in the hours before the murder took place and submitted that there was a reasonable doubt that he was aware of the murder plot or involved in its planning prior to 9 June 2021.

37. Ms Burton said she saw a photograph of a house in Queen Street Stockton on Mr Hawkins’ Google Maps Timeline before the trip to Newcastle on 5 and 6 June 2021. However, her evidence on this issue was undermined significantly in cross-examination. She accepted she may have reconstructed her memory once the details of the offence became known to her and the description of the photograph was not consistent with the actual appearance of Mrs Klimovitch’s home. She gave inconsistent accounts to police as to when she saw the photograph on the Google Maps Timeline. I found Ms Burton to be a convincing witness in the sense that she was doing her best to tell the truth. She gave evidence adverse to her partner and her family’s interest and did not take an objection to giving evidence against him. However, there were questions about her reliability or accuracy when it came to the precise details of what happened. She was clearly distressed, probably affected by drugs at the relevant times, and attempted to piece together what happened after she became aware of the murder in Stockton.

38. Considering all of the evidence in the trial, I cannot accept the submission that Mr Hawkins only agreed to shoot Mrs Klimovitch after he returned to Newcastle on 9 June 2021, that is the day of the killing. On the other hand, I am not satisfied that the purpose of the trip to Newcastle on 5 and 6 June 2021 was to take part in the planning of the murder. However, I am satisfied that Mr Hawkins had agreed to participate in the murder, and was actively involved in the criminal enterprise, by the time he returned to Canberra on 6 June 2021. The precise purpose of the trip back to Canberra is not certain and, on balance, I accept that at least part of the purpose was to deliver drugs to Campbelltown.

The murder weapon

39. The ballistics evidence established that the murder was committed with a shotgun. Shotgun pellets were found at the scene, as well as wadding from a shotgun shell.

40. Ms Burton gave evidence that she saw a photograph on the offender’s telephone of what she described as an ornate long brown shot gun. The photograph appeared to be taken in the bathroom of the family home. This occurred sometime before the murder and caused friction between her and her partner. Mr Hawkins told her that “[s]he had nothing to worry about, that he wouldn’t put [her] in a position that it would cause any trouble.”

41. The prosecution submitted that Mr Hawkins went back to Canberra on 6 June 2021 to collect a shotgun – possibly the one depicted in the photograph – and this was the shotgun that was used in the shooting.

42. There was evidence from a witness, JS, that Mr Hawkins showed a shotgun to various people in the house at Argenton in the days before the murder. JS’s evidence was vague and unpersuasive, and I do not accept it. He received a 10% discount from a sentence for supplying a firearm (not a shotgun) to Campbell at around the time of the current offence. He had a motive to give evidence against the accused. In cross-examination, JS said that he was on drugs at the time and could not remember clearly what had happened. He also said that he could not remember whether he saw the firearm a couple of days or a week before the shooting. In cross-examination JS denied seeing a photograph of the firearm on Mr Hawkins’ phone (which is what the offender said happened) but that he may have “misremembered” the details of the incident.

43. JS’s evidence was not supported by any other witnesses in the case even though there were a number of other people in the house at the time. This included Melissa Robinson and Jessica Burton each of whom was said to be present. Those witnesses denied seeing Mr Hawkins with a shotgun at the house in Argenton. As I have said, I found Ms Burton to be a generally credible witness who was prepared to give evidence adverse to her partner. Melissa Robinson was far less impressive, but on this issue her evidence was firm and believable.

44. I am not satisfied to any relevant standard that the gun used in the shooting was provided by Mr Hawkins or that he returned to Canberra to collect it. That may have happened, but I am unable to find that it did. I am not satisfied the shotgun was the one that Ms Burton saw on his telephone or Google Maps Timeline. If the evidence established that Mr Hawkins produced or sourced the weapon, it would have heightened the extent of his criminality to some degree. However, the fact that I am unable to determine where the gun came from or who sourced it does not mitigate Mr Hawkins’ criminality to any substantial degree.

Aggravating features of the offence

45. Based on the matters to which I have just referred, I am satisfied the killing of Mrs Klimovitch was a planned criminal activity. The planning was somewhat chaotic, but steps were taken to hide the identity of the offenders and distance the person with the true motive (Campbell) from the shooting itself. A person (Mr Hawkins) with no connection to the Newcastle/Hunter region came from Canberra to carry out the shooting and a third person (Mr Garland) was engaged to drive to Stockton and waited nearby to drive Mr Hawkins away from the scene. The dreadful object of the planning was achieved. This was no spontaneous offence. It was a premeditated assassination. Whether or not the planning and context of the killing brings it within the terms of s 21A(2)(n) of the Crimes (Sentencing Procedure) Act, the matters to which I have referred to elevate the objective gravity of the crime and are important to an evaluation of the objective seriousness of the offence and Mr Hawkins’ moral culpability for it.

46. The offence was committed in Mrs Klimovitch’s own home. She was entitled to feel safe and secure there. This is an aggravating feature of the offence.

47. The offence was also committed in the presence of a child, Alex Klimovitch’s infant son. There was a debate as to whether this fell within s 21A(2)(ea). As the Prosecutor conceded, this is closely related to the fact that the offence was committed in Mrs Klimovitch’s home. As Alex said in her victim impact statement, anybody could have answered that door and her evidence of nursing her baby while trying to care for her mother was graphic and disturbing. Again, this a significant feature of the offence which increases its seriousness even though it is unclear that Mr Hawkins would have known of the presence of the child. Campbell almost certainly knew but whether he would have shared that with Mr Hawkins is not known. It is doubtful that the child will remember the incident. Whether the offender knew or not, he clearly cared little for the havoc he was wreaking, and the simple fact is the child was exposed to this dreadful event and, along his mother and grandmother, exposed to risk of physical and emotional harm.

48. Mr Hawkins was on conditional liberty at the time of the offence. He was placed on a number of good behaviour bonds by the ACT Magistrates Court on 7 September 2020. This is not relevant to the objective gravity of the offending but it is an aggravating feature under s 21A(2)(j).

49. The offence obviously involved the use of a weapon but that is a feature of many murder cases and I would not apply s 21A(2) to this feature of the offence. However, it is part and parcel of my assessment that this is a very grave example of the crime of murder. It is also the case that the loaded shotgun was left for a time in a garden near the scene of the shooting and was carried around in the streets of a residential area in Stockton. Exactly why the gun was placed in a garden is not really clear and was no doubt part of the imperfect planning of the offence. It demonstrates again Mr Hawkins’ recklessness as to community safety.

Assessment of objective gravity

50. This was a very grave example of the crime of murder. The features of the case that I have recorded to this point demonstrate that this assessment is inevitable. For the purpose of the application of the statutory provisions relating to the standard non-parole period, I record my finding that it falls above the putative middle of the range of objective seriousness. I am unable to accept Mr Bickford’s assertion that it fell towards the top of the mid-range.

Mr Hawkins’ personal case

51. Mr Hawkins’ subjective case was established by his affidavit sworn on 6 February 2024 and was set out in the generally consistent history provided to Dr Olav Nielssen. Dr Nielssen’s final report was dated 2 February 2024. Letters of support were provided by the offender’s partner Jessica Burton, his son Jason Hawkins Jnr and Sikiki Lloyd who is a staff member at Mid North Coast Correctional Centre.

Childhood deprivation and institutionalisation

52. Neither the history provided in the psychiatric report, nor the contents of his affidavit was challenged, and I accept that evidence. Adopting the language of cases such as R v Millwood [2012] NSWCCA 2 (“Millwood”) and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”), Mr Hawkins is a man whose childhood was marred by profound deprivation, exposure to violence and incidents of physical and sexual abuse. The sensitivity of the evidence adduced on this issue led me to direct that parts of this judgment will be redacted for publication and that the exhibits will be similarly redacted before they are released to the media or other interested parties.

53. Dr Nielssen interviewed Mr Hawkins by audio-visual link on 10 and 24 January 2024 and had regard to the prosecution case statement, his criminal history and health records. His opinion was reached without the benefit of material relating to Mr Hawkins’ mental state at the time of the offence.

54. Mr Hawkins is now 48 years old and was 45 when he committed the offence. He is a man with Indigenous heritage on his father’s side. As a child, he was often subjected to “severe physical punishments” and was exposed to alcohol abuse and violence in the family home. [Redacted]. He has three siblings and was raised by his grandparents from a tender age. He was affected by his grandparents’ deaths when he was 8 and 9 years old. His parents separated when he was in his twenties and his brother committed suicide when he was 24.

55. Mr Hawkins attended school and played rugby league until year seven. He struggled in school and said that he “hung around with the bad boys and threw away [his] future when [he] stole a car.” He was first placed in a Juvenile Justice Centre at 13 and was taken to many Juvenile Justice Centres across NSW. He would often try to escape these centres to [redacted].

56. Mr Hawkins entered adult gaol for the first time when he was aged 20 and has spent 15 years of his adult life in prison. While in prison he participated in educational programs, learned how to read and completed vocational training. The support letter from Ms Sikiki Lloyd said that Mr Hawkins was currently completing a Certificate in Skills for Vocational Pathways in custody. Prior to the offence he had not reoffended since 2017.

57. When not incarcerated, he has worked intermittently as a bricklayer, construction labourer and as a roofer. He said that his ability to work was affected by his drug addiction and repeated incarcerations.

58. Mr Hawkins’ first relationship was when he was 13 and he had his first child when he was 14. He has six children with his first partner (who has died) and a son from another relationship. He said that one of his children was stillborn when he first went into adult prison and one of his daughters died in 2006. He is currently in a relationship with Jessica Burton, and they have two teenage sons. His sons were placed in the care of Ms Burton’s sister who lives interstate, about six years ago. He said his relationship with Ms Burton is “complicated”, noting it was hard for her to give evidence in his trial and that he wanted “her to be able to get on with life and not worry about [him] too much”.

59. Mr Hawkins suffered a serious head injury from an assault at a work party in 2010. As a result of the assault, he lost consciousness, sustained a fracture on the base of his skull and lost hearing in his right ear. He regained consciousness in the hospital and had no memory of the three days after the assault. He could not speak, his balance was affected, and he had to learn to walk again. He reported feeling anxious after the assault. He said that he still suffers from hearing loss, bad headaches and balance problems because of the assault.

60. Mr Hawkins said that he started drinking when he was 13 and was a “binge drinker” when he was younger. He used cannabis daily as a teenager until the age of 20. He reported becoming addicted to heroin and using opioids, speed (amphetamine) and methamphetamine. He would sell small amounts of methamphetamine to support his own drug use. He has only engaged in counselling for substance abuse while in custody.

61. He stated that at the time of the offence and prior to his arrest, he was taking alcohol, cannabis and amphetamine, and that his alcohol and drug taking had stabilised to “a couple of cans every day” and “a couple of cones to get to sleep”. However, Dr Nielssen noted that when Mr Hawkins entered prison on 1 December 2021, it was recorded that he had denied taking cannabis or stimulant drugs but reported using heroin, drinking an increased amount of alcohol and taking opioids in custody.

62. Mr Hawkins did not report any serious problems with his physical health. He has a history of hepatitis C infection and experienced injuries from a car crash in 2012 and from being arrested in 2019. He experiences chest pains when he is anxious or stressed.

63. Mr Hawkins has a history of anxiety, depression and suicidal ideation. It was reported that in 2004 he attempted suicide after the breakdown of his relationship. In 2006 he experienced a high level of emotional distress because of withdrawal from benzodiazepine medication.

64. He reported that he has been diagnosed with schizophrenia and has been treated with antidepressant and antipsychotic medication and opioid replacements. He said that he was not taking any medication around the time of the offence but that he was affected by medication when he entered police custody. He has only engaged with mental health services in prison a few times due to the lack of availability of services. He said that when he was last released from prison, he was referred to a mental health service in Canberra, but he was not offered any ongoing treatment.

Criminal history

65. Mr Hawkins has an extensive criminal history and has spent much of his life in juvenile and adult correctional institutions. He began committing offences when he was just 13 years old when he stole a car and received a caution in the Children’s Court. He was first placed in juvenile detention centre at the age of 13 for stealing another car and driving without a licence. As a juvenile he was subjected to cautions, community service orders, fines, good behaviour bonds, probation orders and long periods of juvenile detention.

66. Between 1993-1999 Mr Hawkins committed offences in NSW and since 2001 he has committed offences in the ACT where he was residing at the time of the offence. He has been sent to gaol on several occasions. His offences have mainly involved dishonesty and drug abuse and he has had many traffic offences. He has very few offences of violence and none of any great seriousness.

67. His most recent period in custody was between 2 January - 4 April 2019 for contravening family violence orders and between 2 June - 1 December 2018 for obtaining property by deception and unlawfully possessing stolen property. These offences were committed in 2017. When he committed the murder, he breached a number of good behaviour bonds that were imposed in the ACT Magistrates Court on 7 September 2020.

68. Nothing in his criminal record bears any similarity to the conduct constituting the present offence. As the parties seemed to agree, his criminal history up until 2021 reflected his dysfunctional childhood, drug abuse and institutionalisation. His criminal record disentitles him to very much leniency, but it is not an aggravating feature of the offence and does not lead to a conclusion that his sentence should be disproportionate to the seriousness of the offence for the purpose of protecting the community from his future dangerousness.

Dr Nielssen’s opinions

69. Dr Nielssen diagnosed Mr Hawkins with a “substance use disorder” and a “[p]robable acquired brain injury” from the assault in 2010. Dr Nielssen said that even though he could see “no obvious impairment” in his cognitive function, severe traumatic brain injury often leads to impairment in “organization, self-awareness and impulse control”. During his interview with Dr Nielssen, Mr Hawkins reported that he was chronically depressed. However, Dr Nielssen did not assess him to be anxious or depressed and found that Mr Hawkins’ intelligence was in the “lower part of the normal range”.

70. When asked whether there was a connection between Mr Hawkins’ current condition and the offence, Dr Nielssen said:

“[b]ased on Mr Hawkins’ account of his relationship with Mr Campbell and his substance use, his involvement in the offence appears to have been related to his dependence on Mr Campbell, who was his employer and his drug supplier.”

71. As to Mr Hawkins’ risk of reoffending Dr Nielssen said that “the greatest risk to the community posed by Mr Hawkins would be from driving while affected by substances” and his “substance using lifestyle”. Dr Nielssen found that there were no recent violent offences to suggest Mr Hawkins has a “significantly increased risk of another homicide”.

72. Dr Nielssen said that Mr Hawkins’ prospect of rehabilitation is “closely related to … his substance use disorder”. He recommended that Mr Hawkins engage in longer term treatment for his substance use disorder, abstain from alcohol and illegal drugs and that his abstinence when released to the community should be supervised.

Experience in custody

73. When Mr Hawkins entered custody in November 2021 there was a COVID-19 outbreak and he was subjected to frequent lockdowns. He counted that he was locked in his cell for 88 days and during those days he was not given a chance to shower. He said he has had a number of alterations with correctional staff. Mr Hawkins speaks to his family regularly while in custody and is able to see them by a combination of in-person visits, AVL meetings and telephone calls.

74. Mr Hawkins has spent a significant part of his adult life in prison and is familiar with the prison routine. He did not report that he found life in prison to be especially difficult. Dr Nielssen stated that because Mr Hawkins is older than most prisoners, he would be more likely to experience “the usual difficulties related to aging in custody, especially around obtaining access to appropriate health care”.

Letter of Jessica Burton and Jason Hawkins Jnr

75. Jessica Burton told the Court that she has known Mr Hawkins for 18-19 years and has been in a relationship with him for most of that time. They have two sons now aged 11 and 13 years. Their oldest son suffered from a hypoxic brain injury when he was 3 months old which resulted in him being blind and not expected to walk or talk. Despite their son’s prognosis, Ms Burton and Mr Hawkins worked hard to engage their son with extensive therapy, which resulted in him being able to walk at 3 years old.

76. Ms Burton said that throughout their relationship she believed that Mr Hawkins has always had “[her] best interests at heart”. In 2015 when Mr Hawkins’ ex-partner passed away, he was proactive with his children and grandchildren, and they were able to rely on him. Seven years ago, when Ms Burton relapsed into using heroin, Mr Hawkins was “patient and kind” and helped her detox. She has not relapsed into heroin use since then. She further said that Mr Hawkins was “very active” in the housing community they lived in Canberra, called “An Intentional Community”, which houses parents of children with disabilities.

77. Ms Burton said that Mr Hawkins has “been a very important person in [her] life”, has “[made] her life better for being in it” and has helped her “be the best [she] can be”. She said that he can build “good relationships” and is “good at making people feel comfortable”. She stated that he “will always stick up for someone” even if it is to his own detriment and “will take action if he thinks something is unfair”. She told the Court that her life and the life of Mr Hawkins’ children’s “will be at a complete loss to lose their [d]ad” and that they will all “miss out with him gone”.

78. Jason Hawkins Junior told the Court that he has an on-and-off again relationship with his father. Despite that he has “very fond memories” of growing up with his father who taught him “to respect everyone”. Even though his father is “not perfect”, he believes that he tries “his best” and has the “best of intentions”. He said that his father has “never done anything” like the offence before and that he is not “a violent man”. Instead, he described Mr Hawkins to be “gentle, softly spoke and accepting of others”. He said that it is difficult for his family to visit Mr Hawkins in custody due to the nine-hour drive to the correctional centre. He told the Court that his father “was the last parent” he and his siblings have left, and that he does not want his father to die in gaol.

Remorse

79. There is no evidence that Mr Hawkins is remorseful for his offence or for the impact of his crime on Mrs Klimovitch and her family. On the contrary, he appears to maintain his denial of involvement and the rather fanciful account he gave at the trial. It was not surprising that the jury rejected his evidence beyond a reasonable doubt.

Prospects of rehabilitation

80. Given the length of the sentence that must be imposed, gauging Mr Hawkins’ prospects of rehabilitation is difficult, if not speculative. The capacity to commit this crime creates significant concerns for the safety of the community. However, his record for violence is limited and the deterrent effect of his current predicament, along with the age he will be if he is ever released from custody, leads to a conclusion that he has some reasonable prospects of rehabilitation, particularly if he is able to remain drug free.

Conclusion as to the subjective case

81. The crime committed by Mr Hawkins is completely at odds with the things that his wife and son have said about him. However, I accept that they genuinely hold those opinions. I accept there is some good in this offender despite the terrible crime he committed.

82. I am not satisfied that the Dr Neilssen’s diagnoses have a substantial capacity to impact on a proper assessment of Mr Hawkins’ moral culpability. It may be that he was more susceptible to the manipulations of Campbell and that he had a dependant relationship with him, but he was more than capable to refuse to be involved. I am also not satisfied that the mental health issues, or brain injury, are such as to ameliorate to any great extent the weight to be afforded to general deterrence.

83. On the other hand, the history of childhood dysfunction and abuse is a very significant matter in this case. I am satisfied that it led to his history of relatively minor but repetitive offending, his resort to drugs, and ultimately to a form of institutionalisation and a loss of moral compass. I adopt what has been said in cases such Millwood, Bugmy and most recently by Simpson AJA in R v MJ [2023] NSWCCA 306 at [2]-[15]. As her Honour said many years ago in Millwood:

“68. The argument advanced under this ground was that a large proportion of the Remarks on Sentence was devoted to the respondent's personal circumstances. The submission was made that:

‘... it is evident that his Honour was greatly affected by the respondent's statement to the court, and his tragic and dysfunctional upbringing.’

The submission went on:

‘... there is little in the circumstances of the respondent that assist him by way of mitigation. He is not young, being 27 years old at the time of sentencing. He has a lengthy criminal history ... the victims were strangers to him. His plea of guilty was not entered at the earliest opportunity.’

69. I would reject the proposition contained in the first sentence. I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP's submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

84. The prosecution in Millwood had submitted that a history of dysfunction similar to Mr Hawkins, did little to assist an offender by way of mitigation. I hasten to add that no such submission was made in the present case.

85. This approach was confirmed in the High Court’s judgment in Bugmy, for example at [43]:

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.”

86. I am satisfied that this offender’s case fits squarely within these principles and that his history of childhood deprivation, neglect, dysfunction and abuse reduces his moral culpability for this offence. In reaching that conclusion, I have taken into account the degree of planning involved, but I am not persuaded that this diminishes greatly the weight to be given to the impact of his history of trauma and dysfunction. He had the kind of childhood that “leaves its mark” and that has impacted on his decision-making and moral compass. This is a matter of some significance in assessing his moral culpability and in deciding the sentence that should be imposed.

87. I should make it clear that nothing in the application of these well-established principles, which were fairly acknowledged by Senior Counsel for the prosecution, is to suggest that Mr Hawkins bears no moral responsibility for his conduct and actions. He bears great responsibility and, as I have already said, could have refused to be involved. Nor am I suggesting that the impact of these matters is determinative or likely to lead to any substantial reduction in the sentence he will receive. The sentence must reflect the grave objective seriousness of this offence and recognise the trauma and pain it has caused.

Should Mr Hawkins be sentenced to life imprisonment?

88. Mr Hawkins faces the prospect of a sentence of life imprisonment. Senior Counsel for the prosecution submitted that the facts of the case and the level of the offender’s culpability may warrant the imposition of such a sentence.

Legislative provisions and authorities

89. Section 19A of the Crimes Act 1900 (NSW) provides that the maximum penalty for murder is life imprisonment and that a person sentenced to life imprisonment is to serve that sentence for the term of their natural life.

90. Under s 61(1) of the Crimes (Sentencing Procedure) Act the Court is to sentence an offender convicted of murder to life imprisonment if:

“… the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence.”

91. Section 61(3) preserves the Court’s discretion to impose a penalty less than the maximum even when an offender is liable to a maximum penalty of imprisonment for life.

92. In R v Farhad Quami, Mumtaz Qaumi & Jamil Quami(Sentence) [2017] NSWSC 774 I expressed certain views as to the correct operation of those provisions at [184]-[194]. I maintained those view in the case of CC v R; R v CC [2021] NSWCCA 71; (2021) 289 A Crim R 453 (“CC”) at [93]. Adamson J (as her Honour then was) suggested a different approach and held that the legislation and other cases authorised a “two stage test”:

“81. It is sufficient to note, in response to CC’s detailed submissions, that there is an important distinction, which is plain from the wording of s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act), between the factors germane to the matter about which the court is to be satisfied and the factors germane to the sentence to be imposed on an offender. The focus of the court’s attention in s 61(1) is the offender’s ‘level of culpability in the commission of the offence’. The assessment of this matter involves consideration of objective factors, such as the objective seriousness of the offence, as well as subjective matters, such as the offender’s background, criminal history and any mental disease, disorder or incapacity. By contrast, the instinctive synthesis required as part of the exercise of the sentencing discretion involves a consideration of all relevant matters, not merely those that affect the offender’s level of culpability in the commission of the offence. There is a significant overlap in the matters germane to s 61(1) and those germane to sentencing but the matters relevant to s 61(1) are, inevitably, a subset of the matters relevant to sentencing: see R v Burke [1983] 2 NSWLR 93 at 101C-D (Nagle CJ at CL). Matters relevant to sentence which fall outside the purview of s 61(1) of the Act include whether the offender has demonstrated remorse or contrition, whether the offender has pleaded guilty and at what time the plea has been offered or entered, and whether the offender has given assistance to authorities in respect of this offence or other offences committed by the offender or by others.

82. The distinction was drawn by Bell J in R v Harris [2000] NSWSC 285; (2000) 111 A Crim R 415 at [83]-[84] and approved by this Court on appeal from her Honour’s decision in R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469 at [60] (Wood CJ at CL, Giles JA and James J agreeing).

83. If s 61(1) arises for consideration, the sentencing judge will be obliged to consider the matters that affect the offender’s level of culpability for the offence. Even if the judge reaches the state of satisfaction provided for in s 61(1), there remains a discretion to impose a lesser sentence. The order in which relevant matters are addressed in the reasons is a matter for the sentencing judge.”

93. The other members of the Court in CC did not consider it necessary to address the conflict between the two approaches. However, in Rogerson v R; McNamara v R [2021] NSWCCA 160; (2021) 290 A Crim R 239 at [635] the Court held that Justice Adamson’s approach was correct. I am bound by that authority and will take that approach in sentencing today, although I remain concerned that the two-stage test may be erroneous.

Mr Hawkins’ case

94. The Prosecutor is correct to submit that the facts of the present case, and the reality that the offence was in the nature of a contract killing or execution, means that the imposition of a life sentence is an available sentencing option. However, such a sentence, which extinguishes hope, should only be imposed where the “community interest in retribution, punishment, community protection and deterrence” can only be met through the imposition of such a sentence.

95. I am unable to conclude that a life sentence is the only way of meeting those community interests. A lengthy determinative sentence, with some hope for parole, is also capable of meeting the interests of retribution, punishment, community protection and deterrence where, as here the moral culpability of the offender is reduced in the way I have explained when referring to his extremely abusive and deprived childhood.

96. Accordingly, I will impose a determinate sentence and a non-parole period. Those observing these proceedings should know that the non-parole period is the absolute minimum time this offender will remain in gaol. Whether he is released at the expiration of that period will be a matter for the authorities who will assess his progress in gaol and any risk that he may then present to the community.

Comparative cases and the length of the sentence

97. In reaching a conclusion as to the length of the sentence, I have considered a number of comparative cases provided by counsel for the prosecution and the offender. These included Regina v Lo [2003] NSWCCA 313; R v Norman; R v Olivieri [2007] NSWSC 142; R v Burnes [2007] NSWSC 298; R v Michael Peter Christiansen [2011] NSWSC 840; R v Brooks [2012] NSWSC 505; R v Spinks [2021] NSWSC 649 (“Spinks”); and, R v Keleklio; R v Sinai [2022] NSWSC 62.

98. Counsel for the offender placed particular reliance on my sentencing judgment in Spinks where a starting point of 22 years was indicated. However, that case was very different to the present. For one thing, the victim had committed a home invasion on the offender, threatened him and there was “a degree of provocation” involved. The moral culpability and objective gravity of the present offence is significantly higher than in the case of Spinks and the sentence must reflect that.

99. I also considered a number of other cases referred to in passing and set out in a table prepared by the NSW Public Defenders’ Office and attached to the Prosecutor’s written submissions. I have referred to these comparative cases in order to ensure there is a consistency in the punishment imposed on offenders who commit similar types of crime, which is an important objective of sentencing. However, the sentence imposed in other cases cannot dictate the appropriate sentence for an individual charged with a different offence. While consistency of punishment is an important aspiration, individualised justice must prevail.

Total sentence in this case

100. Before indicating the total sentence, I should record that I am unable to accept Mr Bickford’s submission that there should be a reduction to the sentence under s 22A of the Crimes (Sentencing Procedure) Act, to recognise the degree to which Mr Hawkins’ conduct of the proceedings facilitated the course of justice. I accept the trial was run efficiently by counsel and that there was extensive agreement as to the background facts. However, any concessions, agreements and pre-trial disclosures constituted sound tactical decision making and, in at least one respect (the alibi notice) there was a failure to make a disclosure which caused some angst in the running of the trial. This is not meant as a criticism of the offender’s lawyers – far from it – but it underscores the fact that this is not a case where a reduction for facilitation is appropriate. Mr Hawkins is not to be punished for running his trial, or for his fanciful version of events, but this is not a case where a reduction in his sentence under s 22A is appropriate.

101. Taking into account all relevant considerations, and synthesising all relevant considerations, I have concluded the appropriate sentence is one of 32 years imprisonment. That sentence will commence on 26 November 2021 and will not expire until 25 November 2053 by which time Mr Hawkins will be 78 years old.

102. I am unable to find special circumstances and the non-parole period will be 24 years.

Sentencing Mr Hawkins

103. Mr Hawkins, for the murder of Stacey Klimovitch on 9 June 2021, you are convicted and sentenced as follows:

1. You are sentenced to a non-parole period of 24 years commencing on 26 November 2021 and expiring on 25 November 2045.

1. There will be a balance of term of 8 years which will expire on 25 November 2053. You will be eligible for release to parole at the expiration of the non-parole period.

2. I warn you that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to you and to the crime for which you have been sentenced and I direct your legal representatives to explain the possible implications of that Act to you.

The facts in Mr Garland’s case

104. The jury’s verdict in Mr Garland’s trial reflects a finding that it was not satisfied beyond reasonable doubt that the offender was a party to a joint criminal enterprise to murder somebody. However, the jury was satisfied to that high standard that he was party to a criminal agreement to commit an unlawful and dangerous act of violence at some stage before the shooting.

105. The verdict suggests the jury paid close attention to the lengthy recorded interviews in which Mr Garland participated on 25 November 2021 and 15 December 2021 and accepted (or had a reasonable doubt about) his repeated protestations (shortly after the event) that he did not know that Mr Hawkins was carrying a loaded gun, or that there was to be a homicide, and that he had been tricked by Campbell into participating in the crime.

106. However, the verdict also necessarily involves a rejection of Mr Garland’s defence that he was unaware at any stage that there was to be violence (in the sense of an unlawful and dangerous act) engaged in by Mr Hawkins.

107. The primary facts, from which inferences are to be drawn, are these:

1. Mr Garland was an associate of Stuart Campbell. Campbell had developed a hatred of Mrs Klimovitch for the reasons set out earlier in the judgment. There was no evidence that Garland was aware of the animosity. There was some evidence tendered on sentence, but excluded at the trial, that Mr Garland and Campbell were involved in selling drugs together.

2. Mr Garland did not know Mr Hawkins and met him only on the weekend before the shooting. There is no evidence of any significant contact between the two offenders apart from the meetings evidenced by the CCTV footage from outside the Argenton Hotel on 6 June 2021.

3. Mr Hawkins and Campbell arranged to carry out the murder whereby Mr Hawkins would shoot Mrs Klimovitch and Campbell would be somewhere which established in him an alibi.

4. On 9 June 2021 at around 6:15pm Mr Hawkins and Campbell attended the premises in Heddon Greta where Mr Garland was living with Dillon McDougall. Mr Garland greeted them on arrival. There was a group of people gathered there to watch the State of Origin rugby league game. There were conversations between the three men although the precise details of those conversations are not known. A number of the people at the house gave evidence of seeing the men talking in groups of two or three and away from the living room.

5. At some stage, Campbell asked Mr Garland to drive his mate from Canberra (that is, Mr Hawkins) to Stockton. Mr Garland said he was resistant to this because he wanted to visit his girlfriend but agreed because he owed Campbell a favour.

6. There was evidence that Campbell was a manipulative man and that he had assisted Mr Garland in obtaining rental premises. This was the favour that Mr Garland said he “owed” Campbell.

7. Shortly before 6:50pm CCTV footage showed the three offenders in the area where all the cars were parked at the front of the premises. An inference can be drawn that a gun concealed in a duffle bag was placed in the boot of Mr Garland’s Holden Commodore. Whether Mr Garland knew this was a matter of controversy at the trial. It is likely, although not inevitable, that the jury was not satisfied that Mr Garland knew there was a gun inside the bag.

8. Messrs Campbell, Garland and Hawkins left the Heddon Greta premises at about 6:52pm, the same time as a witness Kiera Thorby. Mr Garland was driving his Holden Commodore and Hawkins was in the passenger seat. Campbell and Ms Thorby left in different and separate cars.

9. Mr Garland drove Mr Hawkins to Stockton arriving in the area at about 7:40pm.

10. Between 7:38pm and 7:44pm the vehicle was captured on CCTV driving around Stockton with its headlights on. [7]

    7. Tcpt, 16 November 2023, p 322-4; Ex 13; MFI 11, p 15.

11. At 7:46pm the vehicle drove around Stockton, particularly Church Street and the corner of Queen Street, with its headlights off. It was travelling in the opposite direction to the footage referred to in (10) above. [8]

    8. Tcpt, 16 November 2023, p 324; Ex 13; MFI 11 p 15.

12. At 7:52pm CCTV camera captured a man (inferentially, and for present purposes undoubtedly, Mr Hawkins) deposit an item in a garden in, or very near to 10 Queen Street Stockton. [9]

13. At 7:55pm the vehicle drove around Stockton but with the lights on again. [10]

14. At 8:06pm Mr Hawkins retrieved the item referred to in (12).

15. At 8:07pm Mr Hawkins shot Mrs Klimovitch at the front door of her home.

16. Mr Garland drove Mr Hawkins away from the scene and to a house rented by Campbell house in Argenton.

    9. Tcpt, 16 November 2023, p 325, Ex 13; MFI 11 p 16.

    10. Tcpt, 16 November 2023, p 326; Ex 13; MFI 11 p 16.

When did Mr Garland join the criminal enterprise?

108. An issue to be determined on sentence is when Mr Garland joined the joint criminal enterprise to commit an unlawful and dangerous act. This was not an issue resolved by the jury verdict. Neither party argued that the jury would find Mr Garland guilty of manslaughter. However, each accepted ultimately that manslaughter should be left to the jury. This was a difficult legal question and both parties (understandably) oscillated on the correct approach.

109. There was evidence in Mr Garland’s recorded interview that he was aware that Mr Hawkins (whose name he said he did not know) was up from Canberra and that “he’s supposed to have been some sort of thug to come up and bash somebody, ah, at somewhere” (Ex 33 Q37). He also told police “he’d been in an altercation with somebody … I thought it was [JF]” and “I think the blue was between this Canberra mate and [JF]” (Ex 33 Q132). In other parts of the ERISP, Mr Garland suggested that he deduced, while sitting in the car, that Mr Hawkins was up to no good and that he may be involved in a “bashing”. This was how (at Q346 of the ERISP) he justified switching his telephone off:

“Q346:   All right. Um, did you have your phone on at the time?

A:   Um, I I, according to records I, I haven’t. But, but Im I turned it off at some stage, but I have no recollection of, of, ah turning it off. Um, if there’d been, if someone was going to get bashed over there, which was, which was my, my first thought that was happening ‘cause something like that had happened days earlier. U, I, I’m only assuming this myself. I thiniing, ‘why I don’t want my car being mixed up with somebody that’s getting bashed. So I, I, I’ve had this thing that my phone’s tracking, or getting, it leaves a track of where you’re going. So I’ve just had this little spin out in me head, and turned it off.” [11]

(See also Q 349)

11. Tcpt, 16 October 2023, p 322; Ex 13; MFI 11 p 6.

110. There is no evidence of when the telephone was switched off. The CCTV evidence suggests the lights of the Holden Commodore were switched off by 7:44pm which was seven or eight minutes before Mr Hawkins left the car to deposit the item in the garden outside 10 Queen Street.

111. Mr Garland said there was no conversation in the car, so he must have known about the rumoured bashings before he left to drive Mr Hawkins to Stockton.

112. There is also evidence from witnesses at the Heddon Greta house (including AC, Dillon McDougall and Skye Hosking) concerning the fact of conversations between Campbell and Mr Garland (and, at times, Mr Hawkins) which were conducted near (or in) Mr Garland’s bedroom. That was away from the main group in the loungeroom, and the contents of the conversations is not known.

113. Mr Hughes argued that it was open to find that it only occurred to Mr Garland that there was to be a “square up bashing” or some form of unlawful and dangerous act:

“… at a point very shortly before Mr Hawkins fired the fatal shot and in circumstances [where] the offender was left alone in the car by Mr Hawkins, which was parked in the dark in a back street and told to wait”. [12]

12. Tcpt, 7 February 2024, p 5.

114. Senior Counsel for the prosecution submitted that the offender’s entry into the joint criminal enterprise occurred “at least” by the time Mr Garland switched off the lights of the vehicle and proceeded to do a lap around the Stockton area. I accept the Prosecutor’s submission. The Prosecutor also submitted it was open to find that Mr Garland knew that Mr Hawkins was to commit a violent (that is, unlawful and dangerous) act before the pair left Heddon Greta.

115. Based on the chronology and the evidence to which I have referred, it is most likely that Mr Garland had joined the criminal enterprise shortly before he left Heddon Greta to drive Mr Hawkins to Stockton. It is likely by that time that Mr Garland knew that the conduct to be engaged in by Mr Hawkins involved violent criminality of some sort and that he agreed, at least tacitly, to drive Mr Hawkins to and from the scene. He clearly knew (or claimed he knew) of Mr Hawkins supposed reputation as a “thug” (a matter I have disregarded in sentencing Mr Hawkins and which is not, in any event, supported by any other evidence) and the earlier incident involving JF before he set out for Stockton.

116. However, I accept that it is reasonably possible that Mr Garland only found out that the criminal venture involved actual violence shortly before he turned the lights off in the car. This is a generous finding, based on the fair position taken by the prosecution and the absence of clear evidence on the issue. It is the basis upon which Mr Garland is to be sentenced.

Did Mr Garland know there was firearm?

117. Given the way the case was conducted, where the critical issue was whether Mr Garland knew Mr Hawkins had a gun, it is likely the jury was not satisfied that Mr Garland was aware of the presence of the shotgun.

118. Given the jury’s acceptance (beyond reasonable doubt) that he was involved in a joint criminal enterprise, it is very likely that the verdict would have been guilty of murder on the basis of extended joint criminal enterprise if the jury was also satisfied that Mr Garland knew there was a gun involved.

119. Both parties accepted the logic of this proposition, and the Prosecutor submitted it was the most likely explanation for the verdict. I agree with this.

120. Mr Garland is to be sentenced on the basis that he was not aware that there was a firearm involved.

The taking of human life

121. In assessing the objective criminality of the offence, even though it was not his intention and he did not even contemplate the possibility of murder being committed, Mr Garland shares in the responsibility that human life has been taken.

Objective gravity

122. It is difficult to assess the relative objective gravity of the offence. It is a very serious thing to participate in an enterprise involving the commission of an unlawful and dangerous act, particularly when the unintended result is the taking of human life. In this case, the consequences of the behaviour (the taking of life) were unknown to the offender. The same is true of most, or probably all, cases of manslaughter by unlawful and dangerous act.

123. However, the substantial “disconnect” between the enterprise in which Mr Garland agreed to participate in and the enterprise in which Mr Hawkins and Campbell were actually engaged must be acknowledged. While the fact that Mrs Klimovitch was killed is part of the criminality in this case, Mr Garland cannot be held to account for the precise manner in which Campbell and Mr Hawkins took her life. It is a delicate and nuanced balance.

124. I accept that Mr Garland’s involvement, while more than fleeting, took place over a relatively short period of time. Even so he drove Mr Hawkins a reasonably long distance to the scene of the crime, assisted in the furtive behaviour engaged in by Mr Hawkins in Stockton after he knew there was to be violence, he took measures to avoid detection (switching off the car lights and his phone), and waited to drive Mr Hawkins away from the scene.

125. I also accept (on balance) that he agreed to participate out of his misguided sense that he owed Mr Campbell a favour and that it was somehow the right thing to do.

126. I am not satisfied beyond reasonable doubt that Mr Garland knew the offence was to be committed in somebody’s home even though that is the most likely inference given the residential nature of the area. He knew little of the planning and was kept in the dark as to the true nature of the criminal enterprise.

127. While the offence is very serious, it is far from the most serious kind of manslaughter.

The evidence of Mr Garland’s personal history and mitigating factors

128. Mr Garland was 63 years old at the time of the offence. He is now 66.

The psychologist’s report

129. His personal history was set out in a report by psychologist Alison Cullen dated 4 January 2024. No issue was taken with the personal history provided in that report.

130. Mr Garland grew up in a stable Catholic family in country NSW. He was one of four children and reported fond memories of his childhood and having the “best of parents”. He said that some “inappropriate stuff with a priest” happened during his teenage years and this was said to be his most traumatic childhood experience. Mr Garland first raised this two years ago while in custody with a fellow inmate who shared a similar experience. Otherwise, Mr Garland had an unremarkable childhood, as well as sound educational, vocational and interpersonal functioning. He attended school in Singleton until year ten, excelled in mathematics and sports and reported no learning or social difficulties. After year ten, he left school and began working in the mines – like his father and two children – as a machine operator.

131. After 25 years in the mines, he found employment in security at a stud farm for around two years. However, after he was promoted to head of security, a disgruntled colleague poisoned him. Mr Garland was found unconscious and was taken to the hospital where the horse sedative Xylazine was found in his system. The doctor said he was lucky not to have died. His employer sacked the entire security team to avoid a scandal. This incident had a profound impact on Mr Garland.

132. He then found security work with Armaguard where he remained for around five years. However, after his gun licence was revoked due to his affiliations with the Nomad Motorcycle Club (“Nomads”), he could no longer work in that industry.

133. In 2009 he started his own business, Port Stephens Charters, for dolphin-watching tours, weddings and parties. He ran this for around four years before the seasonal nature of the work and the financial viability of the company led him to give up on the business. He moved the boat to Newcastle and lived on board for a time.

134. Mr Garland has had several romantic relationships over the course of his adult life. He was engaged to his high-school sweet-heart. However, this relationship ended after 4 years. He met his former wife when he 24 years old and they shared a 35-year union. The couple raised three children and remain “best of friends”. He also had and on and off relationship with an Armaguard “office girl” and, most recently, was in a relationship with “Dani” which began early in 2021.

135. In 2008 Mr Garland’s father suddenly suffered a stroke and died. His siblings lived a 10-hour drive away, so he assumed responsibility caring for his mother who lived nearby. He remained her primary carer for many years. During Mr Garland’s current and former periods of incarceration his ex-wife took on the caring responsibilities.

136. In 2022 his youngest brother passed away from skin cancer. Mr Garland was incarcerated at the time and was denied permission to attend the funeral.

Joining the Nomads Motorcycle Club

137. After the death of his father in 2008 and the poisoning incident described earlier, Mr Garland’s love for bikes and some family associations led him to socialise with members of the Nomads. He became a “patched” member some years later. He was associated with the Nomads for around ten years. He reported that his 2016 conviction and incarceration led him to cease all association with the club, but part of the evidence in the trial was that he continued to wear Nomad identifying clothing (such as a t-shirt) although a number of witnesses said he did not wear leathers or ride a motor bike

138. Mr Garland’s ex-wife – who participated in the psychological assessment report – provided the context in which he joined the Nomads. She said he “withdrew from his childhood friends” and had “another relationship (affair) with his best friend’s ex-wife.” She continued:

“[l]ife was getting crazy … his Nomad days would have started around 2011. I think he found his tribe again and gave it all he had left in him. He loved the fun and mateship and just went further down the rabbit hole. He found something that took away his pain and the pain he had caused.”

Pain, drugs and alcohol

139. Mr Garland reported a long history of pain and associated abuse of painkillers. He said that he had five knee and five shoulder reconstructions and was prescribed Panadeine Forte. He said his prolonged use of this drug caused ulceration and led to the removal of his gallbladder in August 2021 (just after Mrs Klimovitch was killed). Mr Garland’s ex-wife confirmed that he was in a lot of pain and was “always complaining about [his] shoulder, knees, back” and “swallowing Panadeine Forte like nothing else”. Most recently, Mr Garland spent most of October 2021 in hospital after undergoing surgery on his shoulders and hand after a virus or poison entered his bloodstream. The constant travel during both the trials in October and November of 2023 resulted in Mr Garland complaining of severe coccyx pain.

140. In addition to prescription medications, Mr Garland turned to illicit drugs to relieve his pain. At age 45, he began using cocaine for pain relief. His associations with the Nomads gave him increased access to the drug and, at the height of his misuse, he was using half a gram daily. He used cocaine sporadically for 18 years until his arrest on 25 November 2021.

141. Following the removal of his gallbladder in August 2021, Mr Garland reported that he also began to misuse endone, morphine, and ketamine. He claimed he “was swallowing anything to kill the pain [because] it was unbearable”. The abuse of these substances continued until his arrest in November 2021. He then realised he was dependent and has been abstinent since. He asserted “the temptation to use drugs has gone. My motivation is to look after mum and resolve my remaining shoulder issues.” Mr Garland indicated that his drug use negatively impacted his life, strained personal relationships, and led to medical complications, legal troubles and job problems.

[Redacted]

142. [Redacted].

143. [Redacted].

144. [Redacted].

Psychiatric history and psychological assessment

145. Ms Cullen expressed the opinion that the poisoning event caused Mr Garland to develop Post Traumatic Stress Disorder (“PTSD”) and began the unravelling of Mr Garland’s hitherto unremarkable life. It led to the onset of drug use (and misuse) and his decision to join the Nomads. These things caused a shift in Mr Garland's priorities, behaviour and judgment. Ms Cullen added that the unexpected death of his father in 2008 “psychologically decompensated” Mr Garland and “[i]t is likely therefore that Mr Garland’s secondary depression perpetuated his drug misuse at times and that his use of illicit drugs compounded his depression”. Ms Cullen concluded that Mr Garland had both PTSD and moderate persistent depressive disorder, with anxious distress, at the time of the present offending.

146. Ms Cullen highlighted several hardships that exacerbated Mr Garland’s experience while in custody including his age and poor health, which were compounded with a lack of access to medical intervention to address his varying health concerns.

145. The harsh, violent and intimidating nature of a custodial setting elevates Mr Garland’s PTSD and “places him at increased vulnerability compared to other inmates”. At the same time, Mr Garland’s current helplessness, apathy and nihilistic tendencies place him at risk of suicide.

The psychologist’s opinion of Mr Garland’s prospects of rehabilitation

148. Despite maintaining his innocence, Mr Garland demonstrated some accountability for his role in the offence. His psychological assessment revealed several factors support his prospects of rehabilitation and reduced risk of recidivism. This included his capacity for empathy, strong support from his ex-wife and mother, stable accommodation, sustained disengagement from antisocial associates and behaviours, positive help-seeking attitudes and behaviour, along with his advanced age and limited criminal history. These were the words of Ms Cullen; they are not my words.  An actuarial assessment tool placed Mr Garland at a low/moderate risk of reoffending.

The solicitor’s affidavit

149. An affidavit of Alen Sahinovic, the offender’s solicitor, annexed several documents, dated 29 January 2024, including a bundle of corrective services and justice health records. The latter confirmed that Mr Garland’s health is not great and he has required frequent intervention from the health services available in custody. He was infected with COVID-19 and was subject to the strict regime to prevent its spread during the early stages of his incarceration. The former was said to establish the amount of time the offender has been in segregation and isolation. The parties agreed that that he has been in custody for a total of 804 days and held in segregation for 645 (80.22%) of those days.

An unusual criminal history, the breach of conditional liberty and a pre-existing sentence

150. Mr Garland’s criminal history is unusual and tends to support some of the opinions of the psychologist. He was born in November 1957. He has never been convicted of an offence involving violence. He had a drink driving offence in 1987 when he was 30. He was convicted in the Northern Territory in 2016 for possession of drugs and fined $1,000. By that stage Mr Garland was about 60 years of age.

151. In September 2016, again when he was about 60, he was convicted of supplying a large commercial quantity of drugs and sentenced to imprisonment for 5 years (15 September 2016 until 14 September 2021). There was a non-parole period of 2½ years which expired on 14 March 2019.

152. At the time of the manslaughter of Mrs Klimovitch, Mr Garland was at liberty on parole. That is an aggravating circumstance of the present offence although it does not increase its objective gravity.

153. In September 2021, the offender committed another serious drug offence – supplying drugs on an ongoing basis. He was arrested and charged with that offence on 25 November 2021 and has remained in custody ever since. He was sentenced on 16 March 2023 by Judge Harris to a four-year sentence with a non-parole period of three years. The sentence was ordered to commence on 25 November 2021 and to expire on 24 November 2025. The 3 year non-parole period will expire on 24 November 2024.

154. The present offence was committed on 9 June 2021, three months before the ongoing supply offence. However, he was not charged with the present offence until 16 December 2021. This gives rise to questions of totality and the extent to which the sentence I impose should be accumulated on the pre-existing drug offence. Assuming there is accumulation, a question of special circumstances arises and whether the non-parole period imposed on the present sentence should be reduced below the customary 75%. [13] To assist with this task the remarks on sentence and other relevant documents were tendered on sentence.

     13. Crimes (Sentencing and Procedure) Act 1999, s 44.

155. The facts of the ongoing supply offence described Mr Garland as a “low level dealer of methylamphetamines”. He was dealing in quantities of up to 1 and 2 grams but most of the supplies were of very small quantities ranging from 0.10 grams to ½ gram. While the quantities were small, Mr Garland was busy and there was a total of around 90 individual supplies over a period of about two months. The offender received about $11,385. When police came to his home, they found a little over ten grams of the drug, along with scales and a small amount of cash ($187.20).

156. The offending was of a completely different kind and there must be a significant degree of accumulation to reflect the separate criminality involved. However, I do accept Mr Hughes’ submission that there is a temporal connexion between the offences and that all of the offences were committed during a period of decline in Mr Garland’s life. There is also evidence that Mr Garland was involved in some drug offences with Campbell at around the same time, although these seem to be unrelated to the ongoing supply charges. These things warrant a degree of concurrency between the sentences.

157. There is a wide discretion in a sentencing judge to select the commencement date of a sentence. An offender is not to receive a reward for multiple offending and there must be separate and distinct punishment for the different offences. However, the court must also ensure that the total effect of the sentence is neither disproportionate to the totality of the criminality involved nor crushing in its cumulative effect. Mr Garland has been in custody in relation to both sets of offences since he was charged with murder on 16 December 2021.

158. There is no science or mathematical precision to this. I propose to commence the sentence for the current offence on 25 May 2023 resulting in a total of 18 months accumulation upon the pre-existing sentence. The remainder of the sentences will be served concurrently. In doing this, I am conscious of the fact that this significantly decreases the effect of the sentence imposed by Judge Harris.

Remorse

159. In the immediate aftermath of the killing, Mr Garland scrambled to distance himself from the crime. In particular, he approached three different people in an attempt to set up false alibis and discussed possible stories he could tell if the police discovered that his vehicle was involved in the crime. When the police first spoke to him, he made some attempt to float the false alibis he discussed months earlier.

160. At no stage did he offer to plead guilty to manslaughter although he offered to plead guilty to concealing a serious indictable offence and hindering the police investigation. Those offers were not indicative that he was contrite or remorseful for his conduct.

161. However, in conversations with any number of people, and in his interviews with police, he expressed his shock and horror at the age and gender of the victim and always maintained that he was set up and did not know the plans of his co-offenders. The jury’s verdict vindicates these protestations to some degree.

162. Further, in an unusual procedure, he asked to address Mrs Klimovitch’s family from the dock during the sentencing proceedings. This came the day after he heard the victim impact statements read to the Court. The Prosecutor did not object to this procedure. Mr Garland read the following statement from Ex S-G4:

“OFFENDER: To the Klimovitch family. Firstly, to Stacey's mum, Stacey's children and grandchild, also to all the relatives and friends mourning the loss of Stacey. I'm so, so very sorry for my involvement in this very say tragic crime. Some 15 years ago I was asked to speak at my dad's funeral. That day I had the love, but not the courage. I couldn't find the words to describe what I was feeling. The love and courage you showed yesterday in your statements, to me, broke broke my heart. I tried dot show the respect to your family that your family deserves by looking at you face to face.

I've made the biggest mistake of my life by driving that night and nothing I say or do will bring Stacey back. The things you mentioned yesterday that you all will miss out on, sharing with Stacey, really hit home with me as I have three children and soon to be have (as said) a seventh grandchild and I'm going to be missing in their lives. I would never ask for forgiveness, but I'm so very sorry from all of my heart. So very sorry. I'm really hoping one day you can all walk out your front doors, feel safe and smile again. Thank you.”

163. I cannot say how this statement resonated with Mrs Klimovitch’s family, but my impression was that these words were spoken genuinely.

164. I am satisfied that Mr Garland is now truly sorry and that this bodes well for his prospects of rehabilitation.

Some findings as to the subjective case

165. Based on all of the evidence, I am satisfied on the balance of probabilities that Mr Garland is now truly remorseful for his involvement in the crime and that he has good prospects of rehabilitation and is unlikely to offend again.

166. I am not convinced that Mr Garland’s personal history or psychological conditions have any significant bearing on his moral culpability or the extent to which deterrence, both personal and general, must inform an assessment of an appropriate sentence. I accept that some of these things provide the context in which a 66-year-old man goes from being effectively a first offender to having two serious drug convictions and an offence of manslaughter on his criminal record. They provide some explanation but their mitigatory effect is limited.

167. However, his time in custody will be, and has been, far more onerous than the average inmate as a result of his symptoms of PTSD, the early poisoning event, the threats he has received in custody, the period of time he has been held in segregation and his medical conditions and age.

168. On the whole, I am satisfied that the sentence to be imposed should be tempered with a significant degree of leniency.

[Redacted]

169. [Redacted].

170. [Redacted].

171. [Redacted].

172. [Redacted].

173. [Redacted].

174. [Redacted].

175. [Redacted].

176. [Redacted].

177. [Redacted].

178. [Redacted].

179. [Redacted].

Special circumstances

180. I accept there are special circumstances pursuant to s 44 of the Crimes (Sentencing Procedure) Act in Mr Garland’s case and that there should be a substantial reduction in his non-parole period. These include the partial accumulation on the pre-existing sentence which changes the proportion between the total sentence and effective non-parole period. They also include the age and health of the offender and the onerous conditions of his incarceration to which I have earlier referred. Those matters bear upon the total sentence to some degree but are of more significance to a proper assessment of the non-parole period.

Sentence

181. Counsel attempted to provide comparable cases and I am grateful for their endeavours. However, this is a most unusual (if not unique) case because of the dissonance between the joint criminal enterprise for which the offender is to be held responsible and the magnitude of the crime committed by the co-offenders.

182. I would start with a sentence of 10 years which would be reduced to 7 years for the reasons explained at [169]-[179].

183. Based on the application of principles of totality and the finding of special circumstances explained earlier, I would impose a non-parole period of 3 years and backdate the sentence so that it commences on 25 May 2023.

184. The total effective accumulated sentence will therefore be one of 8½ years with an effective (accumulated) non-parole period of 4½ years. The total proportion of the non-parole period to the total sentence is around 53%. That is my intention and is designed to reflect the totality of the criminality and the very onerous nature of Mr Garland’s incarceration.

Mr Garland’s Sentence

185. Mr Garland, for the unlawful killing of Stacey Klimovitch on 9 June 2021, you are convicted and sentenced as follows:

1. You are sentenced to a non-parole period of 3 years commencing on 25 May 2023 and expiring on 24 May 2026.

2. There will be a balance of term of 4 years which will expire on 24 May 2030. [14] You will be eligible for release to parole at the expiration of the non-parole period.

3. I warn you that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to you and to the crime for which you have been sentenced and I direct your legal representatives to explain the possible implications of that Act to you.

*********

14. In delivering sentence, having indicated a total term of 7 years and a non-parole period of 3 years, I incorrectly announced the total sentence as the accumulated sentence at [184]. The parties agreed it was appropriate to correct the obvious error under the common law “slip rule” in order to give effect to my clear intentions: Achurch v R (2014) 253 CLR 141; [2014] HCA 10 at [17]-[18]. The email correspondence is on the Court file.

Endnotes

Decision last updated: 14 February 2024