R v Nathan John Blundell

[2016] NSWSC 1810

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Nathan John Blundell [2016] NSWSC 1810
Hearing dates:	10-14 and 17-18 October 2016; and Friday 25 November 2016
Decision date:	14 December 2016
Jurisdiction:	Common Law - Criminal
Before:	Hall J
Decision:	Imprisonment for a term of 10 years with a non-parole period of 7 years.
Catchwords:	CRIMINAL LAW – sentence – accessory before the fact to murder – offender not present when principal offender assaulted and killed the deceased – evidence in proceedings included Facebook and text messaging between principal offender, the offender and the deceased – the evidence established that the offender and principal offender possessed a shared intention to inflict grievous bodily harm upon the deceased and encouraged and/or assisted him to do so
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Cheung v The Queen (2001) 209 CLR 1 at 13; [2001] HCA 67 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 R v AC (No 7) [2016] NSWSC 404 R v B, FG; R v S, BD (2012) 114 SASR 170; [2012] SASC 157 R v Fuller [2016] NSWSC 815 R v Irani; R v Sakisi [2001] NSWSC 475 R v Norman; R v Olivieri [2007] NSWSC 142 R v Ready [1942] VLR 85 R v Suteski (2002) 137 A Crim R 371; [2002] NSWCCA 509 White v Ridley (1978) 140 CLR 342; [1978] HCA 38
Category:	Sentence
Parties:	Regina (Crown) Nathan John Blundell (Offender)
Representation:	Counsel: Mr Paul Kerr for the Crown Mr Mark Higgins for the Offender   Solicitors: Solicitor for Public Prosecutions Legal Aid
File Number(s):	2015/57978

REMARKS ON SENTENCE

1. The offender, Nathan John Blundell (“the offender”), was charged on indictment that between 15 August 2013 and 29 August 2013, at Young in the State of New South Wales, he did counsel, procure and encourage Owen Junior Fuller to murder Corey Mark Power.

2. To that charge, the offender entered a not guilty plea.

3. Following a trial by jury, the offender was found guilty of being an accessory before the fact to the murder of Corey Power (“the deceased”) by Owen Fuller (“the principal offender”), contrary to ss 18(1)(a) and 346 of the Crimes Act 1900.

4. The verdict was delivered on Tuesday 18 October 2016 following a seven day trial that commenced on 10 October 2016.

5. Section 346 of the Crimes Act provides:

“Every accessory before the fact to a serious indictable offence may be indicted, convicted, and sentenced, either before or after the trial of the principal offender, or together with the principal offender, or indicted, convicted, and sentenced, as a principal in the offence, and shall be liable in either case to the same punishment to which the person would have been liable had the person been the principal offender, whether the principal offender has been tried or not, or is amenable to justice or not.” (Emphasis added)

6. The maximum penalty for the offence committed by the offender is imprisonment for life: Crimes (Sentencing Procedure) Act 1999, s 19A. The standard non-parole period of imprisonment for such an offence is 20 years unless a sentence of life imprisonment is imposed, in which case the standard non-parole period does not apply. The Crown did not submit that this is a case where a life sentence was appropriate.

7. The offender was called and gave evidence at the sentence hearing. He now stands for sentence.

8. On 25 November 2016 a sentencing hearing took place and on that occasion the Crown tendered the following material:

1. Exhibit A: Criminal history of the offender.

2. Exhibit B: Crown bundle of documents containing:

1. Crown Sentencing Submissions;

2. Transcripts of ERISPs dated 30 October 2013, 7 November 2013 and 24 February 2014;

3. Criminal History of the offender dated 3 November 2016;

4. Custodial History of the offender dated 21 November 2016;

5. Victim Impact Statement of Suzanne McKenzie (undated); and

6. Victim Impact Statement of Phia Power (undated).

9. On behalf of the offender, Mr Higgins of counsel tendered a bundle of documents (Exhibit 1) containing:

1. Justice Health file for the offender;

2. Department of Corrective Services file for the offender;

3. Pre-Sentence Report by Kay Armstrong dated 22 July 2014;

4. Report of Dr Jonathan Adams, psychiatrist, dated 25 May 2016 (including curriculum vitae);

5. Letter from Graeme Blundell dated 17 November 2016;

6. Remarks on Sentence (robbery whilst armed) from the District Court of New South Wales, Judge Norrish QC DCJ, dated 11 August 2014;

7. R v Fuller [2016] NSWSC 815; and

8. Antecedents of the principal offender.

The Offence

Sentencing of the principal offender

10. The principal offender pleaded guilty to having murdered the deceased. He was sentenced by Rothman J on 14 June 2016 following the principal offender having entered a guilty plea.

11. The deceased, Corey Power, was 33 years of age at the time of his death. The principal offender was just over 18 years of age at that time. The offender was then aged 21 years.

12. The factual background as referred to by Rothman J, as recorded in his Remarks on Sentence included the following:

“[5] Briefly stated, on 7 August 2013, [the principal offender and the offender] broke into premises and stole a vehicle and some tools. The two co-offenders drove to an address and rang the deceased to leave the tools with him. The deceased told the offender and his accomplice in the robbery to burn the motor vehicle.

[6] The deceased drove to Canberra from Young and sold the tools, then returning to Young. He was at the time, it seems, living in Canberra. There is a suggestion that the [principal offender and the offender] were never paid for the tools and the deceased owed them $600.

[7] From 25 August 2013, the deceased was staying in Young at the house of persons who were mutual acquaintances of the deceased and the [principal offender]. The deceased was consuming drugs.

[8] In the meantime, the [principal offender and the offender] were exchanging text messages expressing anger and resentment toward the deceased and his failure to pay the money said to be owed. The messages became increasingly hostile towards the deceased and disclosed increasing anger. Reference was made to assaulting the deceased. They then discussed with each other the fact that the deceased had returned to live in Young.

[9] At 3.57am on 29 August 2013, the deceased sent two messages to the Facebook account of another female friendly with each of the deceased and the offender. The [principal offender], who had previously been in a relationship with this woman, gained access to the account. The offender knew the password.

[10] The woman was absent from Young on 29 August 2013 and had been for some two weeks or more. By a series of messages, the [principal offender], pretending to be the Facebook account holder, lured the deceased to a location (the Weir), where he assaulted the deceased.

[11] The [principal offender] had sought unsuccessfully to contact the [offender] but met the deceased alone. According to the accused's record of interview, the murder occurred as follows.

[12] The deceased walked towards the [principal offender], the [principal offender] punched him at which point the deceased fell to the ground. The deceased got to his feet and the [principal offender] punched him again. At that point the deceased did not get to his feet and the [principal offender] considered the deceased may have been ‘knocked out or something’. The [principal offender] had a tomahawk down his back, pulled it out and repeatedly hit the deceased with the blunt end.

[13] The attack with the blunt end of the tomahawk killed the deceased.”

13. In his Remarks on Sentence, Rothman J observed:

“[14] The [principal offender] told police that he was not ‘even angry’ with the deceased. It seems if there were motive it was the failure to pay the $600 debt and a fear that the deceased was going to disclose the robbery for which the [principal offender] may be imprisoned. The [principal offender] denied to police that there was a monetary motive and I accept that.”

14. His Honour noted that the principal offender gave an account to the examining psychologist that he had the feeling that he could not stop once he had started, and it was as if he was observing another inflicting the injuries.

Evidence in these Proceedings

15. At trial, the evidence included Facebook entries and text messaging between the offender and the principal offender; between the principal offender and the deceased; and between the offender and the deceased in the period commencing 14 August 2013 to 29 August 2013. These entries and messages were collated and summarised into a table format and which became Exhibit F in the proceedings. Accordingly, the relevant events and the detail of communications occurring on various dates commencing on 14 August 2013 in terms of the Facebook entries and text messaging to which I have referred, can be derived by Exhibit F which in turn of course is based upon primary evidence adduced at trial.

16. In that period, the communications to which the offender was party indicate that he was experiencing frustration and anger over a period of time by reason of the fact that the deceased had failed to account for monies received from the sale of goods stolen from the Southcon premises. The deal was in essence that, there having been a break and enter of those premises by the principal offender and the offender in the present proceedings and the taking of tools, a generator and a utility vehicle, the deceased undertook to sell them in Canberra and then account for and split the proceeds with the principal offender, the offender and himself. According to the offender in one of the offender’s ERISPs, they expected they would make approximately $2000 – that is, $1000 for the principal offender and $1000 for the offender. Anything over that, it was agreed, would be for the deceased’s benefit.

17. At some point in time, the deceased indicated to the principal offender and the offender that he did not have the money and was not able to, and would not honour the deal to share the proceeds of the break and enter and robbery.

18. Exhibit F records evidence of threats made and directed towards the deceased, in particular threats by the principal offender.

Crown Submissions

19. In the case against the offender, the Crown case was that the offender knew that the principal offender was going to inflict grievous bodily harm upon the deceased and encouraged him to do so and/or assisted him to do so.

20. The Crown in its written submissions made the following submission at [10]:

“It is submitted, however, that it is open to the Court to find that the jury’s verdict reflected the case advanced by the Crown against the offender. That is, that the offender, during his contact with the principal offender, intended by his encouragement, that the principal offender would to [sic] inflict grievous bodily harm upon the deceased. The offender then … assisted the principal offender to carry out the assault upon the deceased by informing him of the deceased’s location.”

21. The Crown observed that Rothman J, in sentencing the principal offender, determined as a matter of fact that the method used by the principal offender, namely Facebook messaging in order to lure and then assault the deceased, was opportunistic but that his Honour also found that “…the intention to assault the deceased pre-dated the event”: R v Fuller, supra, at [17]. The Crown submitted, and I accept, that that reference by his Honour to the intention to assault the deceased equally encapsulated the intention of the offender, not just the principal offender.

Role of the Offender

22. The Crown noted that the offender’s role in the offence of murder is crucial to assessing his culpability: Lowe v The Queen (1984) 154 CLR 606 per Gibb CJ at 609; [1984] HCA 46. His state of mind, the Crown observed, is to be assessed at the time he gave the relevant encouragement and/or assistance, rather than at the time of the offence: White v Ridley (1978) 140 CLR 342; [1978] HCA 38. The assessment of the offender’s state of mind at that time is crucial in assessing his role and culpability.

23. Whilst the Crown observed, and I accept, that there is evidence available to the Court from which the roles of each of the two men can be assessed (having regard to the known facts in the present case and those referred to in the remarks on sentence of the principal offender) it submitted that there is insufficient evidence from which a finding can be made as to who was the dominant figure in their agreement to assault the deceased.

24. The Crown further contended that the mere fact that the principal offender was the person who inflicted the injuries that caused the death of the deceased, does not, in or of itself, mean that he can be said to be the dominant figure in the sense contemplated. The Crown further noted that the principal offender’s meeting with the deceased was simply a matter of chance. Their roles in the intended assault of the deceased, the Crown submitted, appeared to be on an equal footing. Each had the same intention, namely, an intention to inflict grievous bodily harm upon the deceased: at [12].

25. That said, however, the Crown stated that it was not suggesting that each party had an equal role in the death of the deceased. In that respect, the Crown submitted:

“[13]…clearly, the fact that the principal offender, while alone, inflicted the assault that led to the death of the deceased, increases his culpability. Notwithstanding, the culpability of the offender remains significant, given his role in encouraging and assisting the principal offender.”

26. The Crown, however, contended that, whilst the offender was not present at the time the deceased was assaulted and killed, that was more a matter of luck rather than intention or planning.

27. I will address shortly the comparative analysis of matters that differentiate the role of the offender and the role of the principal offender.

28. The Crown referred to the fact that the offender participated in three ERISPs (30 October 2013, 7 November 2013 and 24 February 2015) and that, but for the final ERISP, much of what the offender had previously told the police was untrue and designed to minimise his own conduct. The Crown submitted that not all of the answers in the final ERISP were truthful.

Encouragement

29. In the Crown’s submissions, the evidence of encouragement by the offender of the principal offender to assault the deceased was said to relate to an exchange on 22 August 2013 between the principal offender and the offender as recorded in Exhibit F. At 6.15pm on that date, the principal offender wrote in a text message to the offender: “I’m thinking if he comes we take this shit to a hole [sic] new level that this town hasn’t seen before and end this shit tonight. I’ll do it but I need you there”.

30. The offender told police that he interpreted or understood that message to mean that the principal offender was saying to him that he (the principal offender) was contemplating the possibility that the deceased be killed.

31. Minutes later the offender is recorded as having told the principal offender in a message “Na, u save that for later in life. We will jus chop index n look”.

32. As the Crown noted, the offender told police that he did not know what he had meant when he wrote the sentence “We will jus chop index n look”. The Crown submitted that it is clear that it was being suggested by him that the index finger or fingers of the deceased should be severed while the offender and the principal offender looked on. Such an assault, if carried out, the Crown noted would of course amount to the infliction of grievous bodily harm.

33. Approximately six days later, at 8.28am on 28 August 2013, the offender sent a text message to the principal offender alerting him that the deceased had returned to Young, and that if he (the offender) saw the deceased, he would “…jump on his head”. If that statement is taken literally and depending upon the precise facts, such conduct if performed could, of course, quite likely involve or result in the infliction of grievous bodily harm.

34. In the ERISP of 30 October 2013, the offender told police that if he came across the deceased himself, he intended to assault him. He told police “I was going to flog him when I see him but not kill him”. As the Crown noted, the offender had also told the deceased the same thing himself.

35. The Crown’s submission was that the fact that the assault was or occurred in circumstances that were opportunistic did not detract from the fact that there was some planning by the offender and the principal offender.

Assistance

36. On the question of assistance by the offender, the Crown’s submission was that although it was contemplated by the offender that the deceased was to be very seriously assaulted, the time, place and nature of any such assault had not been determined. In addition, although there is no direct evidence as to whether the proposed assault was to be committed by one or two of the men alone, or by both men in company, there is circumstantial evidence to suggest that it was the intent that both men would commit the assault. The Crown submitted that there was evidence of an agreement that if one man encountered the deceased, the other was to be informed of the fact. The offender also told police that he had told other associates, which included the principal offender, to advise him if they encountered the deceased.

37. The Crown submitted that there is evidence that, at 11.55am on 28 August 2013, the offender acted on that agreement, in notifying the principal offender that the deceased was “…at Marra’s, just hopin he leaves some time soon”. The Crown further noted that there is evidence of an attempt by the principal offender to contact the offender after he had established contact with the deceased. The Crown properly noted there was no evidence that the principal offender made contact with the offender and advised him of his intention to assault the deceased at or after he (the principal offender) consciously made the decision to do so. The available evidence in fact, the Crown noted, supported the contrary position.

Motive

38. The Crown submitted that the motive of the offender for the assault upon the deceased was retribution for the deceased “ripping them off”. That is, his failure or refusal, to split the proceeds of the sale of the stolen goods with the offender and principal offender and an outstanding issue over a separate alleged $600 debt.

39. The Crown noted that messages sent by the principal offender to the offender on 22 August 2013 (regarding taking things to a whole new level) also provided strong evidence of that motive, at least on the part of the principal offender.

40. In the Crown’s submission it was noted at [28]:

“The nature of the text messages exchanged between the offender and the deceased leading up to the assault also supports the view that it was the failure of the deceased to pay certain monies to the offender and the principal offender that was the catalyst of the planned assault.”

Intentions of the Offender

41. The Crown submitted that the death of the deceased was a consequence of the shared intention that the deceased be very seriously assaulted. It added that what might have happened if the offender had found the deceased first, or if he had responded to the early-morning calls from the principal offender is merely speculation and can never be known. However, it was submitted, having encouraged and assisted the principal offender to inflict grievous bodily harm upon the deceased, the offender assumes, by operation of law, responsibility for the murder of the deceased by the principal offender.

42. The Crown submitted that it appears that each of the offenders were content to leave the manner of the assault in the hands of whomsoever located the deceased first or, if they encountered the deceased while together, to whatever might happen should that occur. The offender, it was submitted, was aware that the principal offender had in his possession a tomahawk and that he expressed a desire to assault someone with it; and that both offenders were heavy drug users.

Nature of the Assault

43. The Crown submitted that the assault was serious and sustained. It noted the findings of the forensic pathologist, Dr Duflou, who observed major head injuries with multiple lacerations to the scalp and face of the deceased, with very extensive skull fractures and extensive brain injury and very extensive fracturing of the bones of the face.

44. The Crown further noted the findings of Rothman J in sentencing the principal offender and specifically his Honour’s finding that the offence involved gratuitous violence beyond that necessary to carry out the offence.

45. The Crown submitted that the Court should adopt and act upon those comments.

Sentencing Provisions

46. The Crown submitted that many of the aggravating factors contained in s 21A(2) of the Crimes (Sentencing Procedure) Act are implicit in the elements of murder when liability arises through the intentional infliction of grievous bodily harm. Such factors should not be double-counted.

47. The Crown further submitted that the effect of the death upon the deceased’s family is also an aggravating factor.

Submissions for the Offender

48. Mr Higgins of counsel relied upon his oral submissions made on 25 November 2016.

49. Mr Higgins submitted that, in relation to the roles of the principal offender and the offender, the offender’s culpability was much lower than that of the principal offender.

50. In relation to the offender having provided information to the principal offender, namely that the deceased had returned from Canberra to Young and was staying at “Marra’s place”, the submission was that, when read with other statements, the offender’s statements to the principal offender as to the deceased’s whereabouts in Young and that he was staying at Marra’s was “just part of the general talk” between the two, as opposed to statements that were encouraging the principal offender to go around to Marra’s house to confront the deceased or wait outside and then attack him when he left the premises: (T 33: 20-25). As I will make clear, I do not accept, with respect, that submission.

51. If that submission was not accepted, then Mr Higgins argued that the provision of information by the offender to the principal offender was of a starkly different kind to the information that was provided by the accessory to the principal offender in R v Suteski (2002) 137 A Crim R 371; [2002] NSWCCA 509. It was noted in that case the principal offender was contracted by the accessory to commit an offence of assault with intent to cause grievous bodily harm. In the present case, the principal offender and the offender, it was said, were together “invested” in the same dispute that had arisen with the deceased: (T 35:10-20). On the facts in this case, it was said that this was not one involving a planned “enlisting” of a person to carry out a planned, premeditated attack on another.

52. Mr Higgins further submitted that there was no planning as existed in Suteski and no meaningful sense of reward in the nature of a payment to another to commit a crime involving a serious assault upon another.

53. The further submission was that there was not present in the offender’s case, those factors referred to as the “index matters”, that existed in Suteski and that might otherwise (as in Suteski) elevate the culpability of an offence of accessory before the fact.

54. A further matter relevant to the issue of objective seriousness of the offending was said to be the seriousness of the conduct of the principal offender in the death of Mr Power as against the offender’s conduct and role.

55. As to the matters relied upon by the Crown concerning the objective seriousness of the subject offence, Mr Higgins referred to the mode of assault by the principal offender involving the use of a tomahawk causing extensive injuries to the deceased. The evidence, it was submitted, did not establish that the offender had knowledge that the principal offender had a tomahawk, nor did it establish that the offender knew that the principal offender was intending to use a tomahawk in the assault of the deceased. The submission was that the only evidence as to the offender’s knowledge that the principal offender ever had a tomahawk related to events that occurred on 7 or 8 August 2013, immediately after the break and enter offence at the Southcon premises. Reliance in this respect was placed upon the ERISP conducted on 29 August 2013, as well as the offender’s evidence given at the sentence hearing.

56. Mr Higgins submitted that, in assessing objective seriousness of the offence committed by the offender, it was of importance, in particular, to take into account the matters that applied to the principal offender but which did not apply to the offender. These included the nature or mode of the assault; the extensive nature of the injuries actually inflicted by the principal offender; the gratuitous cruelty by him, the planning by him preceding the assault upon the deceased; and the accessing of his ex-girlfriend’s Facebook profile and using it to lure the deceased to meet him.

57. Submissions were made on behalf of the offender in relation to the text messaging on 22 August 2013, items 119-125 of Exhibit F, in which the principal offender referred to taking the matter to a whole new level, and the offender’s response. The submission for the offender was that the words spoken by the principal offender on that occasion should be construed as him taking the matter up or, in the terms used by the offender, that he was “…bridging it up”, a reference to exaggerating or talking tough. The difference between the Crown’s position as to this conversation and the offender’s position was that the Crown’s submission was that encouragement by the offender occurred both on 22 August 2013 as well as on 28 August 2013 and that that went to the issue of objective seriousness of the offence or the culpability of the offender.

58. The offender’s position, however, was in any event that the messaging should be taken as demonstrating that the offender did not really consider that the principal offender was actually contemplating to take it to the next level. Alternatively, if that proposition was not accepted, then items 122 and 124 of Exhibit F demonstrate that the offender was talking the principal offender down from the position of doing something violent, such as taking it to a new level. As at item 122 the offender text back saying “Na u save that for later in life we will jus chop index n look” and then at item 124 of Exhibit F he responded by saying that additionally he, the offender, would “…sort him if I need back up I’ll ring ya”. On either construction, the offender’s responses to the principal offender in talking him down from his stated position, it was submitted, should be taken into account in the assessment of his culpability or objective seriousness of the offence.

59. Mr Higgins made a number of submissions in relation to the offender’s evidence as to his attempts to deal with his drug problem whilst in custody following his arrest in relation to the armed robbery offence at Junee, Lithgow, Bathurst and Oberon Correctional Centres. Mr Higgins observed that he has a substance abuse disorder and needs treatment: (T 43-44). The submission was that these matters were sufficient for a finding of special circumstances in determining the ratio of non-parole period to the total term: (T 44).

CONSIDERATION

Objective Seriousness

60. In accordance with well-established principles, it is my duty to determine the facts relevant to sentencing. The view that I adopt must be consistent with the jury’s verdict: Cheung v The Queen (2001) 209 CLR 1 at 13; [2001] HCA 67.

61. In assessing the objective seriousness of the offence for which he has been convicted it is necessary to bear in mind that as a result of the assault a human life has been lost. It is also necessary in the assessment to take into account that there was some planning of the assault, although limited to the extent for which the evidence I have referred to admits.

62. The offence was motivated by anger on the offender’s part and out of a sense of revenge for the deceased not having paid the agreed share of what was, in effect, tainted monies resulting from the sale of stolen property.

63. On the other hand, there is no evidence that establishes to the requisite standard that the principal offender was intending to assault the deceased with a tomahawk or any other object or weapon.

64. I accept that the text messaging on 22 August 2013 ought to be understood as the offender talking down the principal offender from taking things to a new level, i.e. to assault with intent to kill. The offender, in his response messaging conveys a degree of insight that he should rethink taking things to a new level as a result of the principal offender’s message. There was no evidence that established that the offender on 22 August 2013 had knowledge or forewarning that the deceased intended to inflict the actual level of violence and injury he in fact inflicted.

65. Whilst the offender, I accept, talked down the principal offender from going to a new level, the fact remains, however, that the offender notwithstanding was still maintaining on 22 August 2013 that he had the intention, along with the principal offender, to assault the deceased with the intention of inflicting grievous bodily harm upon him.

66. The following matters are taken into account in the assessment of the objective seriousness of the offender’s offence:

1. The offender’s shared intention to assault the deceased and inflict grievous bodily harm upon him predated the event;

2. There was a degree of planning as well as premeditation by the offender and the principal offender.

3. The offender, by his conduct, encouraged the principal offender to assault the deceased with a view to inflicting grievous bodily harm upon him.

4. The offender’s assistance in passing information on to the principal offender as to the fact that the deceased had returned to Young and was staying at “Marra’s” home. Prior to that time, there was no evidence as to any planning in terms of time, place or the nature of any assault, and as earlier stated, the offender was not involved in determining the mode of attack.

5. In encouraging and assisting the principal offender, the offender was motivated by a form of revenge arising out of the failure or refusal of the deceased to share the proceeds of the sale of stolen property taken in the break and enter of the Southcon premises.

67. The culpability of the principal offender, it must be noted, is at a level very considerably higher than that of the offender. That assessment is based upon the factors concerning the role of the principal offender in addition to the planning and premeditation:

1. He, the principal offender, alone determined the methodology employed in luring the deceased to the place of the attack and attacking him with a weapon.

2. The fact that the principal offender acted alone in inflicting multiple injuries upon the deceased.

3. The number and nature of the serious injuries inflicted upon the deceased were matters that the principal offender alone determined.

4. The actions of the principal offender in attacking the deceased with considerable force on multiple occasions involved, as Rothman J observed “gratuitous violence beyond that necessary to carry out the offence…” at [18].

68. I have concluded on the evidence that by 22 August 2013, the principal offender and the offender had a shared intention to assault and inflict grievous bodily harm upon the deceased. The formation of the intention to do so, whilst not involving an intention to kill, is directly relevant to the objective seriousness of the offence.

69. Whilst the offender’s intention to assault the deceased predated the attack upon him, the method utilised by the principal offender in luring the deceased by deceiving him and arming himself with the tomahawk used in the attack discloses premeditation on the part of the principal offender as to those matters. There is no evidence that would, as I have indicated earlier, support a finding that the method to be used in attacking the deceased was discussed or was made known to the offender.

70. The evidence does not, in my assessment, establish to the requisite standard that the offender knew that the principal offender was proposing to arm himself with a tomahawk to be used as a weapon in the attack upon the deceased. Whilst the principal offender had seized a tomahawk at the time of the armed robbery on 2 August 2013, there is no evidence that the offender was aware that the principal offender thereafter remained in possession of the tomahawk and there was no evidence of any discussion between them of the fact that the principal offender had the tomahawk in his possession.

71. I accept that there is some circumstantial evidence that the principal offender and the offender would both attack the deceased. They had discussed informing one another if they encountered the deceased, and the offender had told police that he had told other associates to inform him if they encountered the deceased.

72. Importantly, as the Crown properly accepted, there is no evidence that the principal offender made contact with the offender and advised him of his intention to assault the deceased at or after he (the principal offender) consciously made the decision to do so. The available evidence in fact supports the contrary position.

Motive

73. I accept as the Crown submitted that the motive of the offender for the assault upon the deceased was a form of retribution for the deceased “ripping them off”. This, as I have earlier stated, related to the events arising from the armed robbery, the failure or refusal of the deceased to split the proceeds of the sale of the stolen goods with the offender and the principal offender and the outstanding $600 debt.

Personal History

74. The only evidence as to the offender’s personal history is to be found in the report of Dr Jonathan Adams, forensic psychiatrist, dated 25 May 2016.

75. The offender reported to Dr Adams that he had begun smoking cannabis at the age of 17 or 18 years with increased frequency. At the age of 18 years he commenced using ecstasy, amphetamines and LSD and at the age of 19 or 20 years he reported using methamphetamines. He also had a pattern of binge drinking over weekends. He told Dr Adams that he had never engaged in any form of drug and alcohol rehabilitation.

76. He gave a history that his parents separated when he was approximately 10 years of age. He said that he had one younger brother and one older sister. I understand the young brother has a disability and is in the care of his father.

77. He was born in Young and Dr Adams noted no concerns were raised concerning his development. After his parents separated, he initially had no contact with his mother for approximately 18 months. From the age of 13 years onwards he had behavioural problems and began associating with antisocial acquaintances and was frequently suspended at school but never expelled. He said he signed off the school register due to truancy in Year 11. He denied any history of learning difficulties.

78. He started work for three months after leaving school as a bricklayer labourer. He was laid off six months later. He then began consuming increasing amounts of illicit substances and worked less frequently and intermittently.

79. At the time of examination on 10 May 2016 Dr Adams stated that there was no evidence of depressive cognitions and no significant abnormality in his cognitive capacity on rudimentary testing.

80. Dr Adams concluded that the salient feature of the offender’s history appeared to be his severe substance use disorder emerging from his later teenage years onwards. He described to Dr Adams a history that indicated a deleterious impact from illicit substances and alcohol upon his overall level of functioning, both interpersonally and occupationally.

81. Dr Adams did not elicit any evidence to suggest that he had ever experienced symptoms of a major mental illness, including an anxiety, mood or psychotic disorder. The armed robbery offence committed in November 2013, Dr Adams noted, appears to have been set in the context of his severe substance use disorder, daily intoxication and motivation to engage in the offending behaviour in order to fund his continuing use of illicit substances and alcohol.

82. Dr Adams concluded that it was paramount that the offender remain abstinent from illicit substance and alcohol use in the longer term and he should, for that purpose, engage in drug and alcohol rehabilitation.

83. Included in Exhibit 1 is a statement from the offender’s father, Mr Graeme Blundell, dated 17 November 2016.

84. Mr Blundell said that his son was a normal child in preschool and primary school and there were no issues concerning his behaviour.

85. After his mother left, he said difficulties arose during the offender’s high school years and he commenced truancy in about Year 8 or 9.

86. He referred to his son’s drug taking from about the age of 17 and that once he started on drugs things went downhill quickly and he was keeping in bad company. He referred to the fact that he had periods in relation to concreting work and also in fencing work.

87. After his son returned to Young in about 2011-12, Mr Blundell said that things started to get really bad with the drugs and alcohol. The offender lived with him on and off from that time.

88. Mr Blundell has visited his son since he has been in custody every second week. He said that he has seen the offender’s health improve since he has been in custody and he has put on weight. Mr Blundell stated that the offender has said that he has realised how bad things had become before he went into custody and that he has no desire to go near Young or his old lifestyle once released.

89. Mr Blundell said that when released his son will live with him in Grenfell and seek work there. He said he considered he would have no problem getting work as he was a good worker.

90. In these proceedings I note that whilst his use, prior to the offence, of prohibited drugs may provide some form of explanation for his conduct, in accordance with established sentencing principles it in no way provides any excuse or justification for the offence or operates as a mitigating factor.

Victim Impact Statements

91. The Crown tendered the statement of the deceased’s mother Suzanne McKenzie and of the deceased’s sister, Phia Power. Both statements convey clearly a marked level of grief and impact that the death of the son and brother, Corey Power, has had upon each of them and upon other family members.

92. On behalf of the Court, to the family and the friends of Corey Mark Power I express the Court’s deepest sympathy.

Elements of the Offence

93. It is an accepted principle that it is the state of mind of the alleged accessory at the time that the assistance is given that determines his or her liability. The degree of knowledge or belief of what the principal is doing or might do that is necessary for liability will depend on the facts of each case: R v B, FG; R v S, BD (2012) 114 SASR 170; [2012] SASC 157, per Kourakis CJ at [28].

94. Aside from cases in which procurement is alleged, it appears to be sufficient to show that the conduct was calculated in an objective sense to promote the commission of the offence. It is unnecessary to inquire into the extent, if any, that the principal was subjectively influenced by the conduct: R v Ready [1942] VLR 85 at [88]-[89], per Mann CJ on behalf of the Court. See also R v B, FG; R v S, BD, supra, at [30].

95. The jury’s verdict of course implicitly was based upon a finding to that effect. The evidence, including the recorded entries in Exhibit F, in my opinion, support the findings that, by his words and conduct, the offender:

1. Procured the principal offender to assault the deceased with the intent to do grievous bodily harm; and

2. That he encouraged him in that respect; and

3. That he assisted him in the assault upon the deceased in which he suffered serious injuries leading to his death.

96. On the evidence, of course, the principal offender, as with the offender, had his own motive, having not been paid by the deceased, to seek revenge. The messages by 22 August 2013 indicate that the principal offender was acting out of his own feelings of frustration and anger, as was the offender.

97. Accordingly, the jury’s verdict, in my opinion, is to be understood as having accepted that the evidence concerning the exchanges that occurred on 22 and 28 August 2013, satisfied the jury beyond reasonable doubt, that the offender procured, encouraged and assisted in that on that day he supported the understanding he shared with the principal offender of the proposed offence to be committed against the deceased.

Comparative Cases

98. The statistical database maintained by the New South Wales Judicial Commission discloses only one offence of accessory before the fact to murder. That offence attracted a sentence of 10 years with a non-parole period of 7 years and 6 months. In reference to that case recently, in R v AC (No 7) [2016] NSWSC 404, Hamill J noted that little is known of the circumstances of that case apart from the fact that it was a plea of guilty to one offence (with matters on a Form 1) and the offender was older than 50 years: at [112].

99. The Crown referred to the sentencing decisions in R v Norman; R v Olivieri [2007] NSWSC 142; R v Irani; R v Sakisi [2001] NSWSC 475 and R v Suteski, supra.

100. The facts of this case, though bearing some similarity to the case of Suteski, to which I earlier referred, is otherwise distinguishable. In Suteski:

1. Though the case was not a contract killing, it however involved a contract by the accessory with the principal offender to carry out the very serious assault.

2. In that case the assault was procured by the accessory on the basis that the deceased was to be injured to such an extent that he would be absent from the workplace for several weeks. Additionally, the use of a weapon was discussed with the principal offender and the accessory was content to leave it to him as to how the assault was to be perpetrated.

3. Additionally, the accessory in various ways assisted in the actual execution of the offence, both when she provided information that allowed the principal offender to identify the deceased and his home address, and on a separate occasion when she attended the St George Leagues Club on the night of the murder, the place where it was intended that the assault was to occur. By reason of unforeseen circumstances, in that case the principal offender went to the deceased’s home and confronted him there.

101. It is clear, therefore, that the accessory in Suteski was closely involved in conceiving the plan to assault the deceased and inflict grievous bodily harm upon him; that she entered into a contract with the principal offender to achieve that end, if necessary using a weapon; provided information to the principal offender; assisted him in various ways in the execution of the offence; and that she conceived and assisted in the execution of the offence entirely for a base reason, namely, to remove the deceased from her employment premises so that she could continue her illegal conduct in defrauding the employer company.

102. The level of planning and premeditation, and the nature of the motive in Suteski, puts it at a considerably higher level than the offence committed by the offender in the present case.

103. Norman is also a case involving a contract killing, and clearly is at the high end of the range of objective seriousness in such cases.

104. Each of the offences involved in Norman and Suteski involved greater criminality than arises in this case.

105. Having considered the sentencing outcomes in the cases to which I have referred, ultimately the sentence to be determined by me is to be made by reference to its own peculiar factual circumstances.

Sentencing Considerations

106. The purposes for which a court may impose a sentence are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. Those purposes are:

“(a)    to ensure that the offender is adequately punished for the offence,

(b)    to prevent crime by deterring the offender and other persons from committing similar offences,

(c)    to protect the community from the offender,

(d)   to promote the rehabilitation of the offender,

(e)    to make the offender accountable for his or her actions,

(f)    to denounce the conduct of the offender,

(g)    to recognise the harm done to the victim of the crime and the community.”

Criminal History

107. The offender, who was at the time of the subject offence a young adult, had a limited criminal record, at least in the early stages. It records a comparatively low level of offending in 2010 which includes three driving offences, for which he was placed on s 9 bonds.

108. In August 2013, I note the same month as the subject offence was committed, the offender committed an offence of armed robbery and an offence of break and enter.

109. On 11 August 2014 he was sentenced in the Wagga Wagga District Court by his Honour Norrish DCJ in respect of an offence committed on 20 August 2013, being the offence of armed robbery with an offensive weapon to which I have referred. He committed that offence in company with the principal offender in the present proceedings. He was sentenced to a term of imprisonment for that offence of 3 years and 4 months commencing on 7 November 2013 and concluding on 6 March 2017 with a non-parole period of 1 year and 8 months.

110. On 22 June 2016 the offender was sentenced in the Wagga Wagga District Court in respect of the offence to which I have referred, namely an offence of aggravated break, enter and commit serious indictable offence in company committed at the Southcon premises on 7 August 2013. He was sentenced to a term of imprisonment of 2 years commencing 7 February 2014 and concluding on 6 February 2016 with a non-parole period of 12 months concluding on 6 February 2015.

Remorse

111. Whilst the offender gave evidence at the sentencing hearing that, following the jury’s verdict, he accepted responsibility for his actions in this matter, there is no evidence of any genuine remorse or contrition by him as contemplated by s 21A(3)(i) of the Crimes (Sentencing Procedure) Act.

Rehabilitation Prospects

112. The evidence does not permit an assessment of the offender’s rehabilitation prospects. I agree with the Crown that those prospects are very largely dependent upon the response and progress that is hoped the offender will make in dealing with his drug and alcohol disorder.

Aggravating and Mitigating Factors

113. By s 21A of the Crimes (Sentencing Procedure) Act, I am required in determining the appropriate sentence for the offence to take into account any relevant aggravating factors referred to in s 21A(2) or the mitigating factors referred to in s 21A(3) of the Act as relevant and known to the Court. The Court also is required to have regard to any other objective or subjective factors that affects the relative seriousness of the offence.

114. I accept as the Crown observed, that many of the aggravating factors contained in s 21A(2) of the Act are implicit in the elements of the offence of murder when liability arises through the intentional infliction of grievous bodily harm. Such factors therefore should not be double-counted as aggravating factors.

115. The aggravating factor relied upon by the Crown is that stated in 21A(2)(g), namely, “the injury, emotional harm or loss or damage caused by the offence was substantial”.

116. I do not with respect accept the submissions on behalf of the offender to the contrary. The statements of the mother of the deceased and that of the deceased’s sister to police, both dated 6 September 2013, were made as part of early investigations and were not directed to either of them providing information as to the impact of the death of their son and brother, Corey Power. They are therefore relevant on the issue of the impact the death of the deceased has had upon them.

117. Upon the evidence before me I am satisfied that the offence committed by the offender did cause emotional harm and loss to members of the deceased’s family including in particular his mother and sister. I take that into account as an aggravating factor under the Act.

118. Reference has been made at the sentence hearing as to the issue of the offender being in protective custody. That matter may be briefly dealt with in this way. Firstly, there is no evidence as to the nature of the conditions in protective custody other than the limited evidence the offender gave at the sentence hearing. Secondly, the protective custody was given to him at his own request. Thirdly, there is no evidence that he feared retribution from the principal offender. Indeed, to the contrary, the evidence referred to the fact that they correspond with one another still. Fourthly, the evidence given at the sentence hearing by the applicant related to some sense of fear of persons taking some form of action against him, arising out of the break and enter armed robbery at the Southcon premises which has nothing to do, of course, with the present subject offence other than it provides the background and explanation to circumstances that led to this unfortunate case.

119. Subject to two aspects, there are no factors as referred to in subparagraphs (a) to (m) of s 21A(3) of the Crimes (Sentencing Procedure) Act that are applicable on the facts of this case.

120. As to the first of these two matters, I accept as the Crown also accepted, that having regard to the particular nature of this offending in this case, it is unlikely that the offender will re-offend in the same way but that this view is premised on the offender not returning to the same drug fuelled lifestyle that was the catalyst for this offending and the other various serious offences that preceded the death of the deceased.

121. As to the second, it is necessary when considering the sentence to be imposed to have regard to the principle of totality as it applies in accordance with sentencing principles. I have noted that the offender was sentenced to a term of imprisonment by the District Court in respect of the armed robbery offence. That sentence included a non-parole period of 1 year and 8 months commencing on 7 November 2013 and expiring on 6 July 2015. Accordingly, the offender has been in continuing custody pursuant to the sentence imposed upon him by the District Court since his arrest on 7 November 2013 and in respect of subject offence to date.

122. It is accordingly necessary to consider the effect of the accumulation of sentences. I have concluded that by reason of the same, a finding of special circumstances under s 44 of the Crimes (Sentencing and Procedure) Act should be made on the basis of the accumulation of the sentence to which the offender will be subject so as to give effect to the totality principle.

123. On that basis, I have concluded that a finding of special circumstances should be made upon the basis of the accumulation of the sentences and that the statutory ratio of non-parole period to the total term of the sentence should be varied and reduced to 70% of the total term of the sentence.

124. In sentencing the offender, and in accordance with the advice from the Crown as to the period pre-trial spent in custody from the date of the arrest of the offender, namely 7 July 2015, I propose to backdate the sentence accordingly.

Sentence

125. Nathan John Blundell you are sentenced to a term of imprisonment comprising a non-parole period of 7 years to commence on 7 July 2015 and to expire on 6 July 2022 with a balance of term of 3 years to expire on 6 July 2025.

126. Accordingly, the first date the offender will be eligible for parole is 6 July 2022.

Decision last updated: 15 December 2016