R v NH

[2023] NSWSC 428

Supreme Court

New South Wales

Medium Neutral Citation:

R v NH [2023] NSWSC 428

Hearing dates:

13 April 2023

Date of orders:

27 April 2023

Decision date:

27 April 2023

Jurisdiction:

Common Law - Criminal

Before:

Yehia J

Decision:

(i) The offender is convicted.

(ii) The offender is sentenced to a term of imprisonment consisting of a non-parole period of 8 years and 6 months, commencing on 28 August 2020 and expiring on 27 February 2029, with a balance of term of 4 years 6 months, expiring on 27 August 2033. The total term is one of 13 years imprisonment.

(iii) The offender will be eligible for release to parole on 27 February 2029.

(iv) The undiscounted sentence is one of 26 years imprisonment.

Catchwords:

CRIMINAL LAW — sentence — joint criminal enterprise where agreement was to shoot the deceased with at least an intention to inflict grievous bodily harm — planning — where deceased shot while lying in his bed — deceased President of the Bandidos Central West Chapter — where offender has serious health issues — poor prognosis

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(I), 23(1), 61(1)

Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)

Crimes Act 1900 (NSW), ss 18(1)(a), 316(1)

Firearms Act 1996 (NSW), s 7A(1)

Cases Cited:

Charbaji v R [2019] NSWCCA 28

DS v R; DM v R [2022] NSWCCA 156

Lowe v The Queen (1984) 154 CLR 606

Martinez v R [2022] NSWCCA 12

R v Merritt (2004) 59 NSWLR 557

Tepania v R [2018] NSWCCA 247

Versluys v R [2008] NSWCCA 76

Texts Cited:

Australian Institute of Family Studies, The Long Term Effects of Child Sexual Abuse, CFCA 11 (2013) 14

Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report, vol 3 (2017) 14

Category:

Sentence

Parties:

Rex (Crown)
NH (Offender)

Representation:

Counsel:
S Everson SC (Crown)
T D Anderson SC (Offender)

Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Offender)

File Number(s):

2020/00251258

Publication restriction:

Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), there is to be no publication of any matter which is likely to lead to the identification of NH

Judgment

1. These proceedings are subject to non-publication and suppression orders. As a result, the offender will be referred to by the initials NH. On 5 August 2022, NH pleaded guilty in the Local Court to the murder of Shane De Britt aka “Wock” (the deceased). He was committed for sentence on 14 June 2022. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (Crimes Act). It is an offence that carries a maximum penalty of imprisonment for life with a standard non-parole period of 20 years imprisonment.

2. NH was arrested on 28 August 2020. He pleaded guilty at an early stage of the proceedings. The sentence will be discounted by 25% to reflect the utilitarian value of plea. In addition, the plea of guilty, together with other material, demonstrates significant remorse on the part of the offender.

3. On 24 May 2022, the offender signed a proposed Statement of Facts on sentence. That document was also signed by the Crown prosecutor on 10 June 2022. The facts are largely agreed although there are discrete areas in dispute.

4. The liability of the offender arises from his participation in a joint criminal enterprise that had as its objective the shooting and killing of the deceased. The offender acknowledges by his plea of guilty that he was a party to an agreement to kill the deceased. He participated in that agreement by intentionally assisting or encouraging the actual shooter. The areas of dispute primarily relate to the time the offender joined the criminal enterprise and whether his participation extended to acting upon an instruction given by the instigator, Phillip Woods, to shoot everyone at the deceased’s home, so as to leave no witnesses to the murder.

5. The co-accused, Brenton Hayes, Phillip Woods, Brendan McLachlan, Jace Harding, Brian Farnsworth, James Maxwell and Trent Struik have pleaded not guilty. Their trial is listed to commence in the Supreme Court on 11 September 2023.

6. Timothy Lamont was sentenced at Sydney District Court on 17 October 2022 for an offence of conceal serious indictable offence of another, namely concealing the offence of murder, contrary to s 316(1) of the Crimes Act 1900 (NSW) and four firearms offences on a s 166 certificate, contrary to s 7A(1) of the Firearms Act 1996 (NSW). He was sentenced to an aggregate term of imprisonment of three years with a non-parole period of two years.

7. Amanda McCauley has pleaded guilty to one count of accessory after the fact to murder and possess prohibited firearm. She was sentenced at Orange District Court on 24 March 2023. I have not been provided with details of her sentence. In any case, the sentences imposed on Ms McCauley and Mr Lamont are of little assistance in respect of parity given the much less serious offences to which they have entered pleas of guilty.

Victim Impact Statements

8. The deceased’s mother has provided a victim impact statement. She loved her son very much. Both she and her husband were devastated. The deceased’s father sadly died four months after his son. The deceased’s mother continues to live in fear and disbelief.

9. The deceased’s sister is also devastated. She has had to watch her parents grieve and come to terms with the loss of their son. Following her brother’s death, Ms Pomfrett was filled with deep anger and grief.

10. I accept that the deceased was a major part of his sister’s family. Her children, his nephews and nieces thought the world of him and would often seek his advice on many matters. I accept that the deceased’s family is a close family unit, and that the deceased was a major part of that family unit.

11. The prohibition on taking into account on sentence the effect of the death upon family members was abolished by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW). Clearly the harm suffered by the deceased’s family is substantial, but the evidence does not establish an aggravating factor as comprehended by s 21A(2)(l). Sadly, by its very nature, the offence of murder often involves the death of a much loved individual. While I do not take into account the emotional harm suffered by the family as an aggravating factor, I do acknowledge that the deceased’s senseless killing has caused the family considerable distress and will likely do so for many years to come.

The Circumstances of the Offence

12. The circumstances giving rise to the offence of murder are set out in a comprehensive Statement of Facts, largely agreed to by the offender. What follows is a summary of that document.

13. At the time of the murder, the offender was a close associate of the co-accused Mr Hayes and Mr Woods. The offender was a former member of the Grudge Bringers club but left the club in December 2019. Mr Hayes was the owner and operator of Menace Ink Tattoo shop in Wellington and Mr Woods was the head tattooist there. The offender visited the shop a dozen times after it opened, and it was there that he met Woods. Grudge Bringers business was frequently discussed at Menace Ink.

14. In late 2019, the offender moved into premises at Stuart Town. He was a border at that house. He was residing at those premises at the relevant time.

15. The deceased was President of the Bandidos Central West Chapter and was commonly referred to by the name “Wock”.

16. The Grudge Bringers were a self-styled motorcycle club founded by Philip Woods in 2015. The club had a structure, hierarchy, rules and regalia modelled on traditional outlaw motorcycle gangs. The club was known as “GB” or “72”. A number of members got tattoos either with the capital letters “GB” or the number “72”. The club had membership fees which entitled members to a Grudge Bringer’s T shirt, stickers, and patches to be sewn onto the member’s own vest.

17. The co-accused Mr Woods, Mr Harding, Ms McCauley, Mr McLachlan, Mr Farnsworth and Mr Maxwell were members of the Grudge Bringers. The offender believed that Hayes was also a member of the club. Although Hayes was not an official member, he and his tattoo parlour were closely associated with the club, and members of the club. Mr Hayes recruited his associates to join the Grudge Bringers.

18. Shortly after the offender met Mr Woods, in September or October 2019, he became a member of the Grudge Bringers club and got “72” tattooed on his left hand by Woods. In about December 2019, the offender left the club although he still associated with members of the club.

19. The Grudge Bringers members regularly communicated by way of group chats on Facebook Messenger, managed by Ms McCauley. In the lead up to the murder, on the morning of 12 January 2020, the offender was joined to the group chat by Ms McCauley at the request of Mr Woods. The offender remained a member of the Grudge Bringers Facebook chat up until 19 April 2020.

20. Prior to the murder, Mr Hayes had access to firearms and stored a number of firearms at Menace Ink and in the garage of the house in which the offender and others resided. Mr Hayes was not authorised or licenced to possess firearms.

21. The offender was aware that the guns were stored in his room in a green canvas style bag and in plain sight. On a number of occasions, the offender and Mr Hayes brought out the firearms in the presence of others, including Mr Struik. On a number of occasions, the firearms were test fired. There was also ammunition stored at Stuart Town.

22. These firearms were later taken to Mr Woods house to be used in the commission of the murder and at least some of the firearms were taken out to the deceased’s home. These firearms were later found by police in Mr Struik’s storage container. The firearm used to kill the deceased was an “auto” or self-loading shot gun.

23. Tensions between the deceased and Mr Woods (and between the Bandidos and the Grudge Bringers) started due to Mr Woods’ association with Mr Hayes. Although the deceased and Mr Woods maintained a civil relationship, Mr Hayes and the deceased had a mutual dislike for one another. Mr Hayes communicated to the deceased via Mr Woods that outlawed motorcycle gang colours were not to be worn into Menace Ink. The deceased agreed.

24. The deceased believed that Mr Hayes was linked to, or affiliated with, the Rebels Outlaw Motorcycle Gang (OMCG). The deceased also believed that Hayes was a drug dealer and was dealing drugs from the Menace Ink, which he did not like. His suspicions regarding Mr Hayes and his associates caused issues between the deceased and Mr Woods. The deceased made it clear that he did not approve of Mr Woods association with Mr Hayes and that he considered Mr Hayes to be “the enemy”. He believed that Mr Hayes had “no morals” and was driven by “greed”.

25. In September 2019, there was a verbal confrontation between a member of the Bandidos, Ben Ogden, and Mr Hayes when Ogden came into Menace Ink wearing his Bandidos patches. After this confrontation, Mr Hayes banned the Bandidos from the shop as they had breached the agreement not to wear patches in Menace Ink. Mr Woods agreed that the deceased had been warned and declared that “this was war”.

26. Initial tensions arising out of the confrontation between Mr Hayes and Mr Ogden escalated over attempts by the Grudge Bringers and Mr Hayes to claim the Wellington Hotel as their own. On 23 November 2019, members of the Bandidos rode into Wellington in full Bandidos colours. Police, having been informed of their anticipated arrival, stopped, and searched the Bandidos, and issued them with move on directions.

27. Following this incident, it was communicated to the deceased via Facebook Messenger, that a member of the Grudge Bringers, Anthony Ney, had called the police leading to the Bandidos being stopped. The deceased considered this to be “a cardinal sin”. Mr Ney was labelled a “rat”. The deceased wanted him fired from his job at the Wellington Hotel and wanted the Grudge Bringers to be informed that they were no longer welcome at the Hotel.

28. In the latter part of 2019, the conflict between the Bandidos and the Grudge Bringers worsened. Mr Hayes and Mr Woods began discussing ways of confronting the Bandidos at public events and out on the road and “shooting” Bandidos. In discussions at Menace Ink on at least two occasions, Mr Woods and Mr Hayes discussed “shooting up” the Bandidos clubhouse. On one occasion, Mr Woods said: “maybe we should shoot up their clubhouse and show them we are not mucking around or will be stood over”. Mr Hayes encouraged Mr Woods in this regard and assured Mr Woods he had guns “sorted”.

29. The offender was aware of the escalating conflict between the two groups and that they were “at war”.

30. On 24 November 2019, Mr Woods, having discovered that a person by the name of Mark Brisbane had been communicating with the deceased, believed that Mr Brisbane was a “rat” and was feeding information about the Grudge Bringers to the deceased.

31. On 25 November 2019, Mr Ney was at Menace Ink. Mr Woods told him: “the Bandidos have put a hit on your head and it’s not safe for you anymore”. On the same day, Mr Woods arranged a meeting at Menace Ink to discuss escalating tensions with the Bandidos. In attendance at this meeting was the offender, Mr Woods, Mr Hayes, and other members of the Grudge Bringers. Mr Hayes instructed everyone at the meeting to put their mobile phones in the microwave at the back of the store.

32. Mr Hayes said: “we need to take out Wock and hit the others at the exact same time. I have the guns organised, rifles and shotguns and will get cars as well”. Mr Woods said that he wanted to have a meeting with all the Grudge Bringers from both Wellington and Orange. That meeting is referred to as the “Mitchell Highway meeting”.

33. A number of people, including the offender, met at the location. At this meeting Mr Woods and Mr Hayes began to discuss plans for killing the deceased and others within the Bandidos. The offender was present during these discussions. Mr Hayes directed everyone to put their mobile phones in their cars and Mr Woods addressed the group saying: “we have to make a plan about what to do about the Bandidos”. The discussion that followed, centred around killing various members of the Bandidos. The name of the deceased was mentioned, as were other names, as potential targets.

34. One of the groups said that he had photographs of the houses where the Bandidos were staying. Mr Woods asked for the photographs to be sent to him. They discussed who lived in which house and also discussed the rooms that were occupied by Bandidos, because “they did not want to shoot women or children”.

35. Mr Woods asked the offender if he “still had the vests”. The offender confirmed that he did, and Mr Woods told the group that they had Hells Angels vests that would be left at each shooting. The offender had three Hells Angels t-shirts in his possession at that time.

36. At this stage, the plan was that the offender and Mr Ney would be at the Calf and Cow Hotel at the time of the shooting as Mr Woods told Mr Ney that he would need to be “on camera” at the pub when it “goes down”. The meeting disbanded and Mr Woods and Mr Hayes directed the offender to stay with Mr Ney at his home in order to protect Mr Ney.

37. With respect to this meeting, the offender, Mr Hayes and Mr Struik were lawfully recorded by surveillance device after the murder, on 1 June 2020. They discussed how the meeting came about and the fact that they were angry with Mr Woods for the way the meeting was conducted, including the fact that a number of people were unnecessarily present. An extract of that conversation is contained in the Statement of Facts at [55]. During that conversation, the offender was angry that the meeting was attended by a number of people who shouldn’t have been there, saying: “there was only supposed to be a couple of us there”.

38. After the Mitchell Highway meeting, the offender stayed at Mr Ney’s residence for five or six nights. Mr Hayes provided him with a rifle. Mr Woods later attended the premises and told Mr Ney that he was no longer in danger. The offender left the premises with the rifle.

39. The tensions between the groups further escalated after the Mitchell Highway meeting. The plans between Mr Hayes and Mr Woods to kill the deceased continued to develop. Part of the planning involved Mr Hayes and Mr Woods using Bandidos member, Scott Medlin, for information about the Bandidos including information about the deceased’s house.

40. In late December 2019 and early January 2020, the conflict continued to escalate with the deceased realising that he had been deceived, as Mr Woods was still with the Grudge Bringers.

41. On 9 January 2020, the offender sent a text message to Shane Eacott, Rebels member, about the conflict between the Bandidos and the Grudge Bringers, saying: “need some advice on what’s going on up here. Things don’t seem right”. Mr Eacott responded: “Yeah, bro it’s a fucked situation bro it should be sweet but, bro”. The offender responded: “Ok, brother, hope it all blows over”. Mr Eacott texted, “Yeah, I’m sure it will bro, old mate is on his deathbed”. The offender responded, “Yeah, that’s what I thought bro”.

42. The reference to “old mate” in that exchange is a reference to the deceased who had been diagnosed with cancer.

43. On either 11 or 12 January 2020, Mr Hayes dropped a balaclava over to the offender at his house. It was agreed that the offender would wear the balaclava on the night the deceased would be shot and killed in order to disguise his face. During the course of oral submissions, it became apparent that the offender does not accept, as an agreed fact, that the balaclava was dropped off on the 11^th or 12^th of January and does not agree that, at the time it was provided to him, he understood that it was being provided for the purpose of disguising his appearance when he attended with the others to kill the deceased.

44. A number of incidents occurred between the Bandidos and Grudge Bringers on 11 January 2020, which escalated the conflict between the groups. There is no evidence that the offender was involved in these incidents. He was a participant in the Grudge Bringers Facebook group chat on 12 January in which these incidents were referred to.

45. The deceased sent messages to Ms McCauley expressing his displeasure about the fact that Mr Woods was still the leader of the Grudge Bringers and the fact that he was being deceived. A message authored by the deceased to Ms McCauley was forwarded by Ms McCauley to Mr Woods. Mr Woods responded: “Fuck that muppet, it’s on put in group chat it open season to put patches away and to start taking the detos on we fight we win we take all”.

46. That afternoon, on the deceased’s orders, members of the Bandidos began confronting members of the Grudge Bringers around Orange and Wellington individually and in groups, demanding the surrender of their patches.

47. Thereafter, a number of incidents took place leading up to the murder. On 12 January 2020, Mr Hayes, Mr Westbury and Mr Harding gathered at Mr Woods house in Orange for the purpose of carrying out their plan to kill the deceased. During those discussions, Mr Woods told Mr Hayes: “It’s got to happen tonight. I’m just getting things organised”. Mr Hayes said: “No worries, let me know and I’ll do my part”, which included organising and providing the firearms which would be used to kill the deceased.

48. Meanwhile, that day, Bandido members continued to contact Grudge Bringers demanding their patches.

49. Later, on the evening of 12 January 2020, Mr Westbury, Mr Hayes and Mr Woods were in Mr Woods lounge room with a number of firearms laying on the floor. These firearms were supplied by Mr Hayes to use in the plan to kill the deceased. The plan to kill the deceased was not executed on 12 January 2020.

12. On the afternoon of 13 January 2020, Mr Woods, Mr Hayes and Mr Westbury, discussed the plan to kill the deceased. Just before 6:30pm, Mr Hayes asked Mr Westbury to pick up the offender from Stuart Town. The Crown case is that this had been previously arranged as part of the plan for the offender to participate in the killing. This is disputed by the offender. His position is that he did not know he was being picked up.

13. Mr Hayes had spoken to the offender and told him not to forget the balaclava. Mr Hayes gave Mr Westbury instructions to tell the offender to bring his ute and follow Mr Westbury back to Mr Woods house, as it had been agreed between them, that the offender’s ute would be used during the offence to transport the co-offenders before and after the killing.

14. The offender’s position is that this was the first time since the Mitchell Highway meeting in November 2019, that he realised that the plan to shoot and kill the deceased would be carried out. This position is not accepted by the Crown. It is a matter that I will have to resolve.

15. By 9:30pm, the offender and co-accused arrived at Mr Woods house. Mr Hayes told everyone to turn their mobile phones off. A number of firearms were cleaned and prepared. The offender was not involved in preparing the weapons. One of the firearms was a self-loading shot gun with a black ammunition holder strapped to the butt with five rounds in the holder. This was the firearm ultimately used to kill the deceased. Another firearm was a double barrel shot gun, which Mr Harding was loading with shells.

16. Mr Woods and Mr Hayes then led a conversation with the group, in which they directed and instructed the offender and other co-accused about shooting and killing the deceased in his house. They discussed the details of the plan and how it was to be executed by them. The agreed plan was that they would enter the deceased’s home that night, armed with loaded firearms, and shoot and kill the deceased. In the belief, that there may be other Bandidos members present at the deceased’s house, Mr Woods and Mr Hayes instructed the others, that everyone else in the house with the deceased was to be shot and killed as well, including his wife, so that there would be no witnesses.

17. The offender accepts that this instruction was given, but disputes that he had any intention of carrying it out. This is another matter that I will have to resolve.

18. Mr Hayes and Mr Woods instructed people on which cars they would be travelling in. The group, including the offender, agreed upon a false alibi that they would provide in the event of a police investigation. Mr Hayes and Mr Woods wrapped up the firearms in a towel and took them outside to the cars.

19. Given the level of discussion and preparation, there is no question that the offender was well aware that the group was going to travel to the deceased’s home to shoot and kill him.

20. In the early hours of 14 January 2020, the offender, Mr McLachlan, Mr Farnsworth, Mr Harding and Mr Maxwell, travelled in the Toyota Yaris to the deceased’s home. The deceased’s house was on a rural property. The offender parked the car some distance from the house, so that the men could sneak up on the house, as had been previously arranged. The offender and the other men were all wearing dark clothing, gloves and had their faces covered with balaclavas. The offender and the other men were all armed with firearms. The offender was carrying a firearm which he believed to be a .22 lever action rifle. He maintains that he was not certain that the firearm he was carrying was loaded.

21. I proceed upon the basis that the offender remained in the car, but that when Mr Harding accidentally discharged the firearm he was carrying, the offender joined the group and entered the deceased’s house. Sometime between 12:24 am and 4:04am, the offender, Mr McLachlan, Mr Harding and Mr Farnsworth, entered the deceased’s house by quietly opening the front door. Mr Maxwell did not enter the house but remained nearby as part of the joint criminal enterprise.

22. The offender opened the bedroom door and he and the others entered the bedroom. The deceased was laying in his bed. The offender and co-accused pointed their firearms at the deceased as he lay in the bed. The deceased saw the men and said: “What the fuck?”.

23. Mr McLachlan fired a single shot at the deceased head from the self-loading shot gun. The deceased suffered a shot gun wound to the head, which caused his death. After the deceased had been shot, the offender and co-accused walked out of the house.

24. The men returned to the car. They placed the firearms in the boot. The offender drove himself, Mr McLachlan, Mr Harding, Mr Farnsworth and Mr Maxwell to the previously arranged meeting place with Mr Hayes. The firearms were transferred to Mr McLachlan’s car and the Yaris was set alight to destroy evidence of any involvement in the murder.

25. On the morning of 14 January 2020, the deceased’s body was discovered laying in his bed. Police and ambulance attended shortly after and confirmed the deceased was dead.

26. The basis of the plea of guilty is that the offender was party to an agreement and a participant in a joint criminal enterprise with co-accused Mr Hayes, Mr Woods, Mr Maxwell, Mr Farnsworth, Mr Harding, Mr McLachlan and Mr Struik to shoot and kill the deceased. The plan included the attendance by some of these men at the deceased’s home in the middle of the night, each armed with firearms, wearing dark clothing and face coverings. The plan was successfully carried out by the offender and co-accused.

27. The offender provided his vehicle for the purpose of transporting the co-accused before and after the offence. He drove himself, Mr McLachlan, Mr Maxwell, Mr Harding and Mr Farnsworth to the deceased’s premises. He was present in the house with the other men and entered the deceased’s bedroom. He was present when the deceased was shot and killed by the co-accused Mr McLachlan. After the murder, the offender drove the co-accused to the prearranged meeting point where the vehicle was destroyed by fire. The defendant knowingly provided a false alibi to police for himself and his co-accused, in accordance with the plan.

28. The offender later participated in a record of interview with police, in which he gave a more truthful and accurate account of what had taken place.

Areas of Dispute

67. The primary area of dispute is the timing of the offender joining the joint criminal enterprise. The Crown case is that at least a week before the murder of the deceased, the offender was aware of and part of a plan to shoot and kill the deceased. The offender’s position is that he did not become part of the plan until the evening of 13 January 2020, that is, only some hours before the group went to the deceased home.

68. Secondly, the offender disputes the characterisation of the Facebook messages and his inclusion in the Facebook group as demonstrating participation by him in a joint criminal enterprise with the others to kill the deceased. Although he accepts that the Facebook chat group was renamed “Bye Felicia” on 12 January 2020 (by which time he was added to the Facebook group by Ms McCauley), he did not understand that was a reference to the group’s intention to kill the deceased.

69. Thirdly, the offender’s position is that there was no prearrangement that Mr Westbury pick him up from Stuart Town on 13 January 2020. His position is that he did not know he was being picked up. The offender’s position is that the first time since the discussion at the Mitchell Highway meeting in November 2019, that he realised the plan to shoot and kill the deceased would be carried out, was when he was picked up by Mr Westbury on the evening of 13 January 2020.

70. Fourthly, although the offender accepts that an instruction was given that no witnesses be left behind, he did not intend to carry out that instruction.

71. Essentially, the offender’s position is that he did not take the talk of murdering the deceased seriously until the evening of 13 January. He also disputes that he was prepared to be part of a joint criminal enterprise which involved shooting other people who may have been present at the deceased’s property.

Evidence of the Offender

72. The offender gave evidence during the sentencing proceedings. He confirmed that the contents of his affidavit were true and accurate. He also confirmed, as honest and accurate, the history provided to the psychologist.

73. The offender accepted that he was present during conversations when Mr Woods and Mr Hayes discussed shooting the deceased. He believed that they were full “of hot air” and that they were not serious about killing the deceased. He agreed that the firearms, some of which were used in the offence, were stored at the premises where he was boarding. He gave evidence that it was not his house. He was simply a border. He did not make the decision to store the firearms there nor did he have any control over the firearms. Although he was present when they were test fired, he did not test fire them.

74. The offender agreed that he was present at the Mitchell Highway meeting but does not now remember the precise terms of the conversation. He resigned from the club in late 2019 although he continued to associate with a number of the club members.

75. Although the offender acknowledged that some time before the murder, he was asked to “do a driving job” in the Yaris, he was not aware at the time of that request, that it was related to the killing. While I am not persuaded that he “volunteered” to drive the Yaris to the deceased’s house, I am satisfied that he was he was willing to do so.

76. The offender denied that he had joined the plan to kill the deceased one week before the shooting. He gave evidence that on the evening of 13 January, his car was out of fuel. Had he known of the plan, he would have put fuel in his vehicle to avoid the necessity of driving to Wellington to fill up, before turning around and going back towards Orange to attend Mr Woods home.

77. The offender also accepted that when he attended the deceased’s home, he was carrying a firearm but said that he was not sure it was loaded.

78. In re-examination, he referred to his text communication with Shane Eacott on 9 January 2020 as support for the contention that he did not take Mr Woods and Mr Hayes seriously when they discussed killing the deceased prior to 13 January.

Findings with respect to the disputes

79. Any aggravating matters have to be established by the Crown beyond reasonable doubt. The Crown relies upon a number of circumstances to establish that the offender joined the criminal enterprise one week before the shooting. These circumstances include the following: the offender’s presence during discussions when Mr Hayes and Mr Woods talked about shooting and killing the deceased; allowing firearms, later used in the shooting, to be stored in the room he occupied at the premises at Stuart Town; being present when the firearms were test fired; agreeing to driving the Yaris to transport himself and the co-accused to the deceased’s house to shoot and kill him; and being provided with a balaclava on 11 or 12 January 2020, an item which was to be used to disguise his appearance.

80. I am not satisfied that the offender was a party to the joint criminal enterprise to kill the deceased one week before the killing. I accept the offender’s evidence that he believed the representations made by Mr Woods and Mr Hayes were examples of bravado. He did not take the representations seriously.

81. Although the firearms were stored at premises he occupied, he did not source the firearms, nor did he have any control over them. The offender did not test fire the firearms and was not the sole occupant of the premises where they were stored. After the shooting, the firearms were stored in Mr Struik’s container.

82. Clearly, he was aware of the animosity between the two groups and of the representations made by Mr Woods and Mr Hayes, of their intention to kill the deceased. However, I cannot be satisfied beyond reasonable doubt that he joined in that enterprise one week before the killing. A piece of evidence that powerfully militates against such finding is the text exchange with Shane Eacott on 9 January 2020. It is clear to me from that exchange that the offender was not sure of what was happening and appeared to have accepted Mr Eacott’s representation that “it should be sweet”.

83. I cannot be certain as to when it was the offender was provided with the balaclava. I do not accept that it was on 13 January. I find that the offender received the balaclava before 13 January. It may have been up to two days before the shooting. I find that upon being provided with the balaclava, he was fully aware of the purpose to which it was to be used.

84. I am satisfied beyond reasonable doubt that the offender joined the criminal enterprise one or two days before the shooting. He may not have been aware of exactly when the shooting would take place and that is why he was not prepared on the evening of 13 January 2020. However, by his own admission he had been provided with the balaclava sometime before 13 January. I do not accept that he was unaware of its purpose when it was provided to him. He must have been aware that the balaclava was to be used by him to disguise his appearance, in pursuance of the joint criminal enterprise to kill the deceased.

85. As to the offender’s participation in the Facebook messages, I am not persuaded that he understood the reference to “Bye Felicia” as demonstrating an intention to kill the deceased. Furthermore, he did not actively seek to join the Facebook chat group but was signed up by someone else.

86. That said, even if I had been satisfied that the offender joined the agreement one week before the shooting, such a finding would not have impacted upon penalty in any material way. This is because the offender did not do anything in the days leading up to the killing to further the enterprise. At best, he was essentially a passive participant during that time.

87. As to the second dispute, I am not satisfied beyond reasonable doubt, that he joined in an agreement to shoot other people who may have been present at the property. There is no evidence, either express or by inference, that the offender agreed to participate in a joint criminal enterprise that extended beyond killing the deceased. Furthermore, the deceased’s partner was present at the house at the time the deceased was shot, and she was not harmed.

Objective Seriousness and the Offender’s Role

88. Clearly, the offender participated in a joint criminal enterprise to shoot and kill the deceased. An intent to kill is a consideration generally tending to greater objective seriousness than intention to inflict grievous bodily harm: Charbaji v R [2019] NSWCCA 28 at [180]; Versluys v R [2008] NSWCCA 76 at [32].

89. The offender joined the criminal enterprise on about 12 January 2020, approximately two days before the killing. The offender was not the instigator of the plan. He did not actively organise the logistics required to fulfil the plan. The offender did not provide the firearms used in the criminal enterprise. I am not of the view that he was a principal in the criminal enterprise or had any decision-making role.

90. Instead, he followed instructions which included driving himself and others to the deceased’s property; attending the property and entering the deceased’s house whilst armed; wearing clothing and face covering in an attempt to disguise his appearance; and being present, armed with a firearm, together with the co-accused, in the deceased’s bedroom, when the deceased was shot as he lay in his bed.

91. Although there is no evidence that he participated for financial reward, or as a result of any personal animosity he had with the deceased, the offender was fully aware of the plan to shoot and kill the deceased and deliberately participated in that enterprise, at the time he attended the deceased’s home. The fact that he participated as a result of some misguided loyalty to the members of the club is not a mitigating factor.

92. The offence involved planning, which included discussions in person and over Facebook group chats. Firearms were sourced for the enterprise. Some attempts were made at disguising the appearance of the perpetrators. The Toyota Yaris was destroyed by fire after the murder to hide evidence. This was not a spontaneous or poorly planned killing. I am satisfied that the degree of planning is an aggravating factor. However, the offender was not the architect of the plan. He did not instigate any of the arrangements to facilitate the murder. He did not drive the planning, nor was he an active participant in the planning.

93. I agree with the Crown’s description of the offender’s role as a “minion”. That is a term which describes the role of a follower or underling.

94. The murder involved the use of a dangerous weapon. It was committed in company. The presence of the offender supported and encouraged the shooter, Mr McLachlan. The collective presence of the group must have been such as to add to the fear and intimidation experienced by the deceased in the moments before he was shot. These are aggravating features. In addition, the deceased was killed in his own home, a further aggravating factor.

95. I am not persuaded that the Crown has established disregard for public safety and grave risk of death to others as an aggravating factor. Although the group was armed with loaded firearms, their purpose was focused on the killing of the deceased. The firearms appeared to have been stored in the boot of the car. There is no evidence that they were brandishing the firearms while in transit to the deceased’s home or after they had killed him.

96. This is a serious example of murder. The offence was premeditated. It did involve preparation and organisation. It was committed in the home of the victim while he was lying in his bed. The offender was in the company of a number of others, each perpetrator armed with a firearm. In all the circumstances, this offence is above the middle of the range of objective seriousness, but not at the highest end of that range.

97. All offenders are equally liable for all of the acts done in the course of carrying out the enterprise. However, each participant’s level of culpability is to be assessed by reference to their conduct: see Lowe v The Queen (1984) 154 CLR 606 at 609. In Martinez v R [2022] NSWCCA 12 at [50], Beech-Jones CJ at CL (as his Honour then was) stated:

“Where an offender’s guilt is established by his or her participation in a joint criminal enterprise then the offender is sentenced ‘for the full range of the criminal acts done by any of the parties to the joint criminal enterprise in the carrying out of the enterprise’ (R v Wright [2009] NSWCCA 3 at [28] “Wright”).

However, an offender does not ‘necessarily….receive the same punishment as would have been appropriate if he had himself personally performed all of those acts’ in that ‘it depends on the circumstances whether a person who is criminally liable for an act as a principal in the second degree or as an accessory should be regarded as equally culpable, less culpable or even more culpable than the person actually performed the criminal act’ (Wright at [28]; R v JW [2010] NSWCCA 49 at [162].”

98. As indicated earlier, I agree with the Crown’s characterisation of the role of the offender as a minion. He was not the architect of the plan to kill the deceased. He did not make any of the arrangements. At all times, the offender was following instructions. In describing the offender’s role as one of a minion, it is important to set out what the offender actually did, so as to properly understand his limited role.

99. The offender was present at the meeting in November 2019 on the Mitchell Highway when others discussed the possible murder of the deceased.

100. The offender was present at Menace Ink on two occasions in November 2019 and January 2020, when others discussed the possible murder of the deceased. However, at the time of these discussions he was not a participant in any agreement to kill the deceased. At that time, he believed that the discussions were examples of bravado demonstrating hollow and meaningless expressions of animosity towards the deceased.

98. He agreed to participate in the joint criminal enterprise to shoot and kill the deceased about one or two days before the killing. His role was limited to being the person who drove the Toyota Yaris containing the co-accused (Mr McLachlan, Mr Harding, Mr Farnsworth and Mr Maxwell) to the deceased’s property for the purpose of killing him.

99. He entered the deceased’s home in the company of the co-accused, each in possession of a firearm. I am satisfied that the offender was aware that the firearm was loaded. The only inference to be drawn from the circumstances relied upon by the Crown, which include, but are not limited to the offender’s presence during discussions about shooting and killing the deceased; his knowledge of the storage of firearms and his presence at the time those firearms were discharged, is that he was aware that the firearm he was carrying was loaded.

100. His role included entering the house of the deceased and opening the door to the deceased’s bedroom and being present when the fatal shot was fired by Mr McLachlan.

101. On the other hand, his involvement with the Grudge Bringers was brief and peripheral. There is no suggestion that he had any particular role within that club. His role in the murder was limited.

102. I find that his role is significantly less than that of Mr Woods and Mr Hayes who were the architects and instigators of the plan and who continued to drive and facilitate the plan which culminated in the shooting and killing of the deceased. Furthermore, he was not the shooter, and his role is less than that of Mr McLachlan.

Subjective Case

106. The offender’s subjective case is before me by way of a report prepared by Amanda White, Forensic and Clinical Psychologist; the evidence of the offender; and a letter prepared by the offender’s daughter. As indicated above, the offender gave evidence in the proceedings, confirming that the history he gave the psychologist about his background and childhood circumstances, was both accurate and honest. There has been no challenge to that evidence. I find that his subjective case is highly compelling.

107. The offender grew up in Sydney’s inner west and is the oldest of three brothers to his parent’s union. His father is Aboriginal and worked as an insurance broker while his mother was a geriatric nurse. As a child, the offender’s essential needs such as food and shelter were met but the family “never had a great deal”.

108. Both of his parents were alcoholics. They spent their money at the pub, which resulted in “not much left over”. His parents fought sometimes, and when this happened, his mother would hit his father and “throw stuff around”. He was “protective” of his younger brothers and took them to the park at these times. He moved to Tweed Heads for a while on one occasion and later to the Northern Territory with his mother during a period of separation.

109. The offender reported that his mother was a disciplinarian. His family “didn’t talk much” and did not discuss family heritage. As a teenager, he began to “butt heads” with his father more. At the age of 15, he moved out of home to live with his employer at the time, Mr Jackson.

110. The offender told Ms White that for a period of two years, Mr Jackson sexually assaulted him daily, both at home and in the workplace. He was forced to have penile-anal intercourse with another young boy, while Mr Jackson watched and masturbated himself. The offender referred to Mr Jackson as a trusted member of the community. He felt that he could not tell the police about the sexual abuse because they were friendly with Mr Jackson and would be “on his side”. He felt that he could not tell anyone. He continued visiting his parents on the weekend but felt too “ashamed” to tell them what was happening. The offender ran away from Mr Jackson, after two years of repeated sexual abuse.

111. The offender was too ashamed to return home and lived in an abandoned building for a few months. He eventually moved back home with his parents in St Marys. He lived with his parents until the age of 20 when he moved out again. He was living a nomadic lifestyle for a period of five years, never staying in the same place. He had one significant relationship during this time, which lasted for about three years. They had a daughter who was born in 1986.

112. At the age of 25, the offender moved to Mackay. He met his wife; Wendy and they were together for about 20 years. She had five children from a previous relationship to whom he was a stepfather. They had one daughter together, Larissa. Wendy worked as an assistant nurse, and the offender played a central role in looking after the children. In due course, the offender ended the relationship with Wendy, as he felt that there was nothing left between them. Their relationship remained amicable. As a result of the separation, contact with his stepchildren decreased. He was particularly fond of his stepdaughter Charee and her son. This was the offender’s step-grandson, who was killed in a tragic shooting accident in 2020. He maintained regular close contact with his daughter Larissa.

113. The offender moved to Geurie, situated outside of Dubbo, after his 50^th birthday. He resided there for a few years, until he ran out of money and moved to Wellington. He did not know anyone in the area; however, he formed social connections through roommates and with a local biker group, which later formed the Grudge Bringers. In 2019, he reconnected with an old school friend and started a relationship with her.

114. The offender reported that he “never forgot” the sexual abuse he experienced in his teens. He “self-medicated” with alcohol and cannabis to “escape” symptoms, including nightmares related to the abuse. He had always been particularly hypervigilant about his children, when they went to a park he was “on edge” and watched “in case someone was inappropriate”.

115. Prior to 2017, the offender was prescribed medication by his GP to manage low mood, but it had no effect. In 2017, he woke up one day and “could not stop crying”. He realised that he could not deal with his trauma on his own. He could not talk without crying and “lost control” of his emotions. He consulted psychologist, Mr Tim Manning, but found that talking about the abuse was difficult and was “triggered” when asked to write a letter to the perpetrator. He was seen by the mental health unit at Wellington Hospital and had on and off contact with community mental health since then. He was prescribed medication and diagnosed with post-traumatic stress disorder (PTSD), anxiety and depression.

116. In January 2019, the offender’s grandson, was stabbed to death in Mackay. In the 18 months prior to the arrest, the offender experienced heightened anxiety, heart palpitations and shortness of breath.

117. Since being in custody, the offender experienced nightmares, not only relating to the sexual abuse, but also to the court case and fear of reprisal. He thought this was because he was not being prescribed quetiapine, which he took in the past and found to be the most effective in reducing his nightmares. During his initial intake into custody, the offender reported that he was suicidal and cut his wrist. However, he did not require medical intervention. After this, he saw a psychologist but was told that they could not provide him with trauma-related treatment. He was given him some basic coping strategies such as breathing techniques.

118. The offender reported unrestful sleep saying he woke five to six times a night every night. He has trouble getting back to sleep. The offender had an adequate appetite. He preferred to keep to himself and stay in his cell, rarely going into the dayroom. He spent most of his day studying and playing guitar. The offender “lived for” his daughter and grandchildren but experiences feelings of loss of hope knowing he will need to be on protection post-release and may not see his family.

119. At the age of 16 or 17, the offender started drinking alcohol. He would drink alcohol daily and consumed alcohol heavily. This continued until a few years ago after which time he reported minimal use. He also started using cannabis daily, around this time, until his incarceration in 2020.

120. The offender reported to Ms White that in the lead-up the offence, he was staying with an “old man”. His son was part of a biker group and introduced him to the group. He purchased cannabis from the son and every now and then would pick up a supply of cannabis for him to get some “pocket money”. At that time, he was spending his time smoking and playing guitar. He began socialising with some of the biker group at a tattoo parlour. He recalled that they were forming a new biker group called the Grudge Bringers and agreed to get the clubs’ tattoo “72”. He wanted to be involved with the social activities, such as bike rides and music nights. After some weeks, he discovered that the club members were involving their female partners in the running of the club. He did not like this saying “it all turned to shit from then”. He then resigned from the club in late 2019.

121. He remained friends with the club members and would sometimes go to the tattoo parlour to “see what’s happening”. He became aware of a fallout between rival motorcycle clubs, involving a young Grudge Bringers member which culminated in a meeting with some of the co-accused on the Mitchell Highway, where reprisals against the deceased were discussed. He reported to Ms White that aside from attending this meeting, where he was only a spectator, he was not in any way involved, nor had any knowledge of what was planned until the night it occurred. He didn’t have much to do with the club between November 2019 and January 2020.

122. On the night of the commission of the offence, the offender smoked some cannabis, a “usual” amount of a few cones, by the time someone came and got him. He was to drive to Orange. He thought he was “doing another [cannabis] run”. After arriving in Orange at a house, he recalled that there were “loaded guns [and about a dozen members] so I couldn’t leave”. He reported that he had no experience with guns and had never owned or fired a gun previously. He described feeling “angry” and “overwhelmed” that he had been pulled into something that he didn’t want to do. He was then asked to drive the vehicle and thought that would be the extent of his involvement.

123. After arriving at the home of the deceased, the offender initially remained in the car, while other members went onto the property and down the driveway. One of the men discharged their weapon and they all returned to the car. The offender assumed it was empty and had agreed to go onto the property and check. He felt “scared shitless” entering the home. He was carrying a gun and was not sure it was loaded and “had not intention to use it”. He recalled that “they shot the bloke” and he thought, “what have I got myself into”. He then drove them all home and recalled being extremely hypervigilant driving and cautious to obey the road rules for fear of raising suspicion. He “just followed instructions” and returned home. No one had spoken about what had occurred but there was a threat that if anyone “talked they would get the same”.

124. The offender felt he “had to go along with it..[I] didn’t want them to think I’m not part of it..I had to big note [my]self”. Since the offence was committed, the offender described living in fear and that he had “tried to forget about it”. He reported that he was worried about reprisal and felt “relief” when arrested. Since being arrested and remanded in custody, the offender experienced nightmares about reprisal against himself and his daughter. He said that he was aware that there was a “price on my head” and that he would need to “watch my back for the rest of my life”. Even post-release, he would not be able to return to see his daughter or grandchildren and would require protection for life.

125. Ms White noted that a letter authored by Mr Tim Manning, psychologist, states that the offender presented on 17 and 22 January 2018 with psychological distress. He was diagnosed with PTSD. On 17 October 2019, he re-presented with severe anxiety and depression with chronic low mood. He was prescribed seroquel. The offender struggled since the death of his grandson who was killed on 1 January 2019. He became more withdrawn and experienced increased anxiety, worsening depression, reduced engagement in personal care (showering one weekly) and signs of agoraphobia. He endorsed memory difficulties, suicidal ideation, and increased cannabis use reportedly consuming 30-40 cones daily.

126. His Disability Support Pension (DSP) application had been rejected and he was in receipt of Newstart Allowance. He was discharged from drug and alcohol services on 1 November 2019 after being diagnosed with Major Depressive Disorder (MDD) and referred to drug and alcohol services. Two weeks later, he was referred again, by his daughter Larissa, after he had reported suicidal ideation to his partner, became homeless after an argument with a housemate and was suffering extreme financial hardship. The offender denied suicidal intent or plans. He did not attend his next scheduled appointment in late November 2019. He was next seen in February 2020. He reported that his mood was “alright” and was seeing his partner, Nicole, about once a month.

127. Justice Health Forensic Mental Health records dated 3 September 2020 indicated that the offender “struggled on entry without regular medications”. He had visible “fresh cuts” on his left forearm and reported intermittent suicidal ideation. The offender reported worsening of symptoms when he was not prescribed quetiapine.

128. Ms White conducted a psychological assessment of the offender who was found to be experiencing moderate levels of depression and anxiety. His stress level was within the normal range. The offender met the threshold for PTSD. The offender’s responses indicated that in the past month he had experienced recurrent intrusive symptoms including intrusive memories, distressing dreams (although content varied related to stressors including current court case) and cued psychological distress, avoidance of memories, thoughts and feelings related to that time in his life; and alterations in cognition and mood, including negative self-beliefs, persistent negative mood state as well as inability to experience positive emotions. His responses also indicated in the past month, he had experienced sleep disturbance and difficulties with concentration, although these were likely impacted by multiple factors, such as the custodial environment and current legal status.

129. The offender endorses significant emotional distress and is experiencing a range of symptoms including lack of positive emotional experiences, feeling sad and unhappy with his current life, feelings of helplessness and hopelessness, self-doubt and insecurities, indecisiveness, and significant lack of interest. He also stated that he endorses history of suicidal ideation; elevated levels of stress and nervousness, excessive worry and focus on his disappointments. His pattern of responding indicates that he is shy, easily embarrassed, uncomfortable around others, and avoids people and social events.

130. Ms White opined that due to the offender’s childhood he has developed a dysfunctional stye of attachment, resulting in avoidant behaviours and difficulty making connections. The sexual assault he experienced as a teenager, by a man in a position of power, who was trusted to care for and employ him, has further impacted his ability to maintain professional and personal relationships.

131. The offender has some medical issues and is diagnosed with diabetes and elevated blood pressure. He requires ongoing monitoring and medication. He reports a high degree of emotional dependency on his daughter. Separation from her and his grandchildren will be extremely difficult for him in custody but also post-release if he is unable to reconnect with family.

132. The offender’s PTSD will make conditions in prison more onerous, for example due to the close proximity to others and confined situations with others. He is currently located in an area with limited access to programs and resources. The offender requires psychological treatment. He is unable to access it currently, and this is further impacting his mental health. He experiences a myriad of symptoms, including trauma-related as well as depressive symptoms. His mental health should be closely monitored as the symptoms are impacting his functioning.

133. During the course of the proceedings, the offender gave evidence that, in December 2022, he was diagnosed with a very serious illness. He has stage IV lung cancer and brain cancer. He has been receiving two forms of treatment, namely radiation therapy and a regime of chemotherapy. He will receive chemotherapy over a couple of days and repeated cycles every 21 days. The chemotherapy has a deleterious impact on his physical health. He feels extremely worn out and fatigued. He has also experienced a loss of appetite.

134. The offender gave evidence that he has been advised by medical practitioners that the combination of radiotherapy and chemotherapy will not cure his cancers. The tumours are inoperative. In January 2023, he was given a prognosis that he has possibly two years to live.

135. The affidavit of George Fren, a solicitor with the Legal Aid Commission, annexes a number of medical documents which confirm the diagnoses and the ongoing management of the offender’s treatment. The report of Dr Jason Tong confirms that the offender’s condition is not curable, and treatment is given to prolong life whilst maintaining quality. It is unlikely that surgery will be offered. Dr Tong reports that it is hoped that this first-line treatment can be effective for one-two years. The offender’s prognosis is very grim indeed. The reality is that no matter what sentence is imposed, the offender will likely die in custody.

136. The offender’s classification has resulted in limited access to rehabilitation programs. He has very limited contact with other inmates and very limited access to the outside yard, a restriction that has had an adverse impact on his mental health. In addition, there is no full-time nurse on site at the unit and a doctor only attends on Wednesdays. Checks on inmates after daily lock in are minimal and cursory. These limitations and his isolation have caused the offender anxiety and distress.

137. I am satisfied that the offender is deeply and sincerely remorseful for his involvement in this crime. He has given evidence of that remorse. He has pleaded guilty to murder at an early stage of the proceedings and has been cooperative. These factors, together with his early plea of guilty, evidence significant remorse.

138. The offender has no relevant criminal history and stands to be sentenced as a person of prior good character. It is somewhat perplexing to see a man of his age (57 years old at the time of the offence and now 60 years old) with no relevant criminal history, participate in this most serious criminal enterprise. His personality traits and predisposition to going along with others and wanting to feel part of a group, may be some explanation for his continued association with members of the Grudge Bringers, even after the discussions about killing the deceased.

139. There is no evidence to suggest that whilst on remand, the offender has engaged in violence or drug-related activity. The offender continues to have the support of his daughter which is an important protective factor. Given his prior good character, his limited role in the offending, and his considerable remorse, I am satisfied that the offender has good prospects of rehabilitation and is unlikely to reoffend.

Moral Culpability

140. In Tepania v R [2018] NSWCCA 247 at [112], Johnson J (with whom Payne JA and Simpson AJA agreed) explained that:

“…in determining the objective seriousness of an offence, regard may be had to factors personal to the offender that are causally connected with, or materially contributed to, the commission of the offence, including (if it be the case) a mental disorder or mental impairment. The assessment of an offender’s moral culpability is distinct from an assessment of the objective seriousness of the offence.”

141. DS v R; DM v R [2022] NSWCCA 156 at [63]–[96] summarised the law with respect to the distinction between moral culpability and objective seriousness, confirming that an assessment of an offender’s moral culpability does not form part of the determination of the objective seriousness of their offending. The “objective seriousness” of an offence and the “moral culpability” of the offender are separate but related concepts, with the former involving an objective assessment of the seriousness of the crime and matters potentially causally related to it, while the latter is concerned with the offender’s moral blameworthiness for an offence.

142. The offender’s mental health at the time of the offence was poor. I accept that he was suffering from PTSD anxiety and depression. He was, to a degree, dependent on his associates in the Grudge Bringers for social interaction and a sense of belonging. I am not persuaded in this case that his mental health issues were causally connected to the offence such as to reduce the objective seriousness of the offence itself.

143. However, the offender’s mental health issues do operate to reduce his moral culpability.

144. The offender’s background of disadvantage and deprivation is also relevant to reducing his moral culpability. Critically, his experience of childhood sexual abuse, is relevant to his adverse mental health, social, interpersonal, physical, and behavioural consequences.

145. One of the bodies of research referred to in the Bugmy Bar Book is the Royal Commission into Institutional Responses to Child Sexual Abuse. The Commission explained:

“When a child is sexually abused, the effects can be devastating. For many, the impacts of the abuse last for their whole lives. When the abuse occurs in an institution and the institutional response is inadequate, victims can experience additional adverse impacts. While each person’s story is unique, for many victims the abuse has created a complex constellation of mental health symptoms and associated negative outcomes that have changed their lives profoundly. The abuse can reach into all areas of the victim’s life: mental health; interpersonal relationships; physical health; sexual identity; gender identity and sexual behaviour; connection to culture; spirituality; interactions with society; and education employment and economic security.” ^[1]

1. Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3. 14.

146. The offender has self-medicated with alcohol and cannabis for many years to escape symptoms, including nightmares, related to historical sexual abuse and low mood. He reported being hypervigilant particularly about his children. He reported that he never held a job because he couldn’t take praise and felt a deep distrust of others, particularly if they were nice to him.

147. Research conducted by the Australian Institute of Family Studies found that there is increasing evidence suggesting that children who have been sexually abused have greater difficulties with interpersonal relationships and especially trust compared with non-abused individuals which can affect how children and adults understand and construe the motives and behaviours of others and how they handle stressful life events. ^[2]

     2. Australian Institute of Family Studies, The Long Term Effects of Child Sexual Abuse (CFCA Paper No 11, 2013) 14 cited at p 5 of the Bugmy Bar Book Chapter – Childhood Sexual Abuse.

148. The offender’s mental health issues and his background of deprivation and disadvantage are separate but interrelated matters that operate to reduce his moral culpability:

149. General deterrence remains a relevant purpose of sentencing given the nature and circumstances of the offence. This was a premeditated murder involving the targeting of a rival gang member, who was executed with the use of a firearm in his own bed. The penalty would normally reflect a significant degree of general deterrence. General deterrence remains relevant in sentencing this offender although the offender’s mental health issues and background of disadvantage operate in this case to reduce the weight afforded to it.

Purposes of Sentencing

150. The weight to be afforded specific deterrence and the protection of the community is modest having regard to the offender’s prior good character, his positive prospects of rehabilitation and the unlikelihood of reoffending. Even if he were to survive to see a time when he is eligible for parole, I am satisfied that he does not constitute a danger to the community.

151. In acknowledging the contents of the victim impact statements, I acknowledge the harm done to the deceased’s family and the fact that a sentence of imprisonment, no matter how long, can never bring back a loved one.

Assistance

152. Section 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides:

“A court may impose a lesser penalty then it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.”

153. I have had regard to the confidential exhibits. I am satisfied that the offender’s assistance is significant, particularly his willingness to give evidence against the seven co-accused. Although he did not initially make full disclosures, within a week of his arrest he gave a detailed and truthful account of his actions and the actions of others and participated in a lengthy re-enactment with police. The assistance is timely, reliable, and complete.

154. I am satisfied that he will serve his time in custody more harshly as a result of his assistance. I am also satisfied there is a real danger to the offender resulting from his assistance or undertaking to assist.

155. There has been some past assistance, primarily constituted by the offender’s participation in the re-enactment. I am not persuaded that his past assistance warrants a 12 and ½ % discount. It seems to me that the primary assistance is future assistance by way of giving evidence in the trial of the co-accused.

156. The discount for assistance is 25% made up of 5% past assistance and 20% for future assistance. The combined discount, having regard to the utilitarian value of the plea of guilty is 50%.

Section 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

157. Section 61(1) of the Crimes (Sentencing Procedure) Act1999 (NSW) requires that “a court is to impose a sentence of imprisonment for life on a person who is convicted of murder, where the offender’s culpability is so extreme that the combined effect of the community interests in retribution, punishment, community protection and deterrence, can only be met through the imposition of that sentence”: see R v Merritt (2004) 59 NSWLR 557; [2004] NSWCCA 19 per Tobias JA at [13] (Hidden J agreeing at [81]; Wood CJ at CL at [42],[54].

158. The primary focus is the determination of the degree of an offender’s culpability. The Public Defender’s sentencing table, provided by the Crown, summarises the murder cases that have attracted the imposition of a life sentence of imprisonment. The Crown has provided that table of cases to highlight the difference with the present case. I am not of the view that this case calls for the imposition of imprisonment for life in light of the offender’s limited role and his reduced moral culpability.

Comparable Cases

159. Both the Crown and Mr Anderson SC, on behalf of the offender, have provided sentencing tables from the Public Defender’s website setting out sentences imposed in cases where there have been either pleas of guilty or verdicts of guilty to murder.

160. It is not necessary to summarise the cases relied upon by the parties. It is sufficient to indicate that I have had regard to that material and note that no two cases are the same with respect to objective seriousness and subjective case. To the extent that the “comparative” cases provide some guidance as to principle, I have taken into account the statements of principle.

Special Circumstances

161. I find special circumstances warranting a variation of the statutory ratio. Notwithstanding the lengthy period on parole if the statutory ratio were applied, I am of the view that several factors call out for a finding of special circumstances.

162. I make that finding the following combined reasons:

1. The offender’s medical conditions and in particular his diagnosis of cancer which will make his conditions in custody more onerous.

2. The impact upon his conditions in custody by virtue of his assistance to the authorities

3. The offender has good prospects of rehabilitation.

4. The offender will require a longer period on parole to adjust to his return to the community (subject to his life expectancy) and to ameliorate the risk of institutionalisation.

163. I have determined that an appropriate starting point of the sentence is 26 years imprisonment. This reflects the following findings:

1. The offender’s significantly lesser role than that of Mr Woods and Mr Hayes who were the instigators and drivers of the plan to kill the deceased.

2. The offender was not the shooter and as such his criminality is less than that of McLachlan.

3. The offender entered a plea of guilty at a very early stage of the proceedings.

4. The offender has facilitated the course of justice.

5. The offender has a highly compelling subjective case which includes but is not limited to the poor prognosis for his life expectancy.

164. Accordingly, I make the following orders:

1. The offender is convicted.

2. The offender is sentenced to a term of imprisonment consisting of a non-parole period of 8 years and 6 months, commencing on 28 August 2020 and expiring on 27 February 2029, with a balance of term of 4 years 6 months, expiring on 27 August 2033. The total term is one of 13 years imprisonment.

3. The offender will be eligible for release to parole on 27 February 2029.

4. The undiscounted sentence is one of 26 years imprisonment.

165. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to the offender. I direct that the offender’s legal representatives advise him of the existence of the Act and its application to this offence.

Endnotes

Decision last updated: 10 December 2024