R v Paton

[2014] NSWSC 71

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Paton [2014] NSWSC 71
Hearing dates:	7 February 2014
Decision date:	14 February 2014
Jurisdiction:	Common Law - Criminal
Before:	Button J
Decision:	Sentenced to imprisonment for 19 years to date from 10 November 2011 and expire on 9 November 2030, comprising a non-parole period of 14 years 3 months, followed by a balance of the term of sentence of 4 years 9 months. The first date upon which the offender will be eligible for release to parole is 9 February 2026.
Catchwords:	CRIMINAL LAW - remarks on sentence - plea of not guilty - offender convicted of murder - accessory - little active role but aware for some hours that the offence was to occur - dispute as to facts on sentence - reliability of key witness - offender on parole at time of offence - sentence imposed
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 s21A
Cases Cited:	Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 R v Kearnes (No 2) [2013] NSWSC 1652
Category:	Sentence
Parties:	Regina Christopher John Paton
Representation:	Counsel: B Hughes SC (Crown) E Wilson SC (Defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Pogson Cronin (Defendant)
File Number(s):	2011/359425

Judgment

1. On 21 October 2013, Christopher John Paton (to whom I shall usually refer as "the offender" in these remarks on sentence) was arraigned in the Supreme Court at Albury before a jury panel and me. The indictment contained a single count of murder. The issue between the Crown and the offender in the trial was a circumscribed one. The Crown alleged that the offender had been criminally involved in the murder by shooting of Mr Semin Rizvic (to whom I shall usually refer as "the deceased" in these remarks) before or during its occurrence. The position of the offender was that he was merely an accessory after the fact to that murder. By way of its verdict of guilty delivered on 4 November 2013, the jury determined that issue in favour of the Crown.

1. The maximum penalty for the offence of murder in New South Wales is imprisonment for life without the possibility of parole. In the circumstances of this case, there is also an applicable standard non-parole period of 20 years. I have borne those two important guideposts firmly in mind. The Crown Prosecutor has not submitted that this is a case that should lead to the imposition of the maximum penalty. Nor do I consider that the imposition of such a penalty is appropriate in this case.

Fact finding

1. My approach to the determination of the facts of the matter is as follows. Any fact that I regard as adverse to the offender above and beyond the elements of the offence must be proven beyond reasonable doubt. A fact that I regard to be in his favour need be proven on the balance of probabilities only. It may be that the evidence will not permit me to determine some facts with clarity. It is not my role to try to construe the findings of fact that may have underpinned the verdict of the jury. Rather, I must make my own findings, consistent with that verdict: R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587.

1. The task of fact finding in this matter is complicated by a number of aspects.

1. First, the Crown case at trial had two bases. The first was the proposition that the offender was guilty of murder because he engaged in a joint criminal enterprise with the principal offender to murder the deceased, and the offender was present at the scene when that occurred. The second basis of the Crown case was the proposition that, before or during the murder, with knowledge that it was to occur or was occurring, the offender intentionally encouraged or assisted the principal to commit that crime.

1. The second complicating factor is that I have previously conducted a trial and imposed sentence with regard to the principal offender, a Peter John Kearnes: see R v Kearnes (No 2) [2013] NSWSC 1652. Both the Crown Prosecutor in this matter and senior counsel for the offender have submitted that I must, as a matter of procedural fairness to both parties, put from my mind all of the evidence and submissions placed before me in the trial and proceedings on sentence with regard to Mr Kearnes. I accept that submission, and, with the assistance of counsel, I have done so.

1. The third complicating factor is that, in the proceedings on sentence, whilst both parties of course accepted that I must sentence consistently with the verdict of the jury, there remained a dispute about the facts. To state its ambit succinctly, the Crown Prosecutor accepted in the proceedings on sentence that I could not be satisfied beyond reasonable doubt that the offender was present at the scene of the crime. However, he submitted that I would be satisfied to the criminal standard that, for many hours before the murder occurred, the offender was aware that it was to take place, and furthermore the offender took active steps during that time to assist Mr Kearnes to carry it out.

1. In contrast, senior counsel for the offender submitted that I could not be satisfied beyond reasonable doubt that the offender became aware of the fact that the deceased was to be shot until shortly before it occurred. He also submitted that I could not be satisfied beyond reasonable doubt that the offender provided any encouragement or assistance to the principal offender, above and beyond being in his company for some period of time before the murder.

1. That controversy requires a degree of analysis of the evidence by me, and will be resolved later in these remarks.

1. The fourth complicating factor with regard to fact finding is that those submissions of the Crown are based very much on the evidence of the witness Tamsin Cameron. She is a person about whom I made adverse credit findings in my remarks on sentence with regard to Mr Kearnes. Again, I have restricted my assessment of her credibility for the purpose of resolution of this dispute to the evidence in these proceedings.

Undisputed matters

1. In that difficult context, I first turn to set out the facts that were not in dispute in the trial or the proceedings on sentence. I shall state them in general chronological order.

1. The offender and Ms Tamsin Cameron met in April or May 2011. The offender and Mr Kearnes met in a hotel shortly after that time. Ms Cameron and Mr Kearnes met in the first half of July 2011. All three individuals were users of the prohibited drug methylamphetamine (to which I shall refer in these remarks as "amphetamines"). Each of them lived in the small country town of Tumut, and was a part of the drug milieu of that community.

1. On 20 July 2011, the deceased was living alone in a ground floor apartment in a block of flats in Edward Street, Wagga Wagga. The deceased had been in an intermittent relationship with the former wife of Mr Kearnes. The regional centre of Wagga Wagga is over one hour's drive from Tumut.

1. On Wednesday 20 July 2011, Mr Kearnes attended a celebration for the birthday of his former wife in Wagga Wagga. On the same day, the offender and Ms Cameron travelled together by motor vehicle from Tumut to Canberra. On the return journey, they stopped at a very small township by the name of Hall and consumed amphetamines together. Later, at a time when the offender was the driver, an argument developed between him and Ms Cameron about her assertion that he was driving too fast.

1. That evening, the offender, Ms Cameron, and Mr Kearnes were all at the home of Mr Kearnes in Dalhunty Street, Tumut. The offender and Mr Kearnes left those premises together, and returned together, with an acquaintance, Mr Peter Minogue, who remained at Dalhunty Street with Ms Cameron until early the next morning. At an indeterminate time later that evening, but certainly before midnight, the offender and Mr Kearnes left Dalhunty Street together. Although a vehicle belonging to Mr Kearnes was available, they chose to depart in a vehicle belonging to Ms Cameron instead.

1. At 2:29 AM on Thursday, 21 July 2011, a mobile telephone associated with Mr Kearnes called a mobile telephone associated with Mr Minogue. That call was made through the Tumut Lookout mobile phone tower.

1. At 4:48 AM, the upstairs neighbour of the deceased was woken by a number of noises. Those noises were the result of Mr Kearnes repeatedly shooting the deceased to the head and neck with a .22 calibre firearm whilst they were both together in the apartment of the deceased.

1. Shortly after the deceased died as a result of the administration of those shots, his body was mutilated by way of his ear and a portion of his scalp being cut off with some sort of sharp implement. Deplorably, that part of his body was thrown into the garden of the block of flats.

1. At 4:51 AM, the mobile phone associated with Mr Kearnes called the mobile phone associated with Ms Cameron. The call passed through the Wagga Wagga telephone tower. Another call was made at 4:57 AM with identical attributes.

1. At 5:28 AM the offender, bizarrely dressed in some sort of long robe, entered a BP service station located very close to the premises where the murder by shooting had occurred 40 minutes or so before. He left promptly, but returned for a brief period at 5:36 AM.

1. Between 5:30 and 6 AM, the upstairs neighbour to whom I have referred saw the offender sitting on the fence outside the block of flats in which the murder had taken place. Later, the offender came up the internal stairs of the apartment block and spoke to the upstairs neighbour in the vicinity of her front door.

1. Very soon after 6 AM, the telephone associated with Mr Kearnes called a telephone associated with Ms Cameron. That call, again, was transmitted through the Wagga Wagga telephone tower. A call with identical attributes occurred at 6:16 AM.

1. Shortly thereafter, the body of the deceased was located in his apartment by the upstairs neighbour to whom I have referred, and 000 was called.

1. At 6:41 AM, a description of the appearance of the deceased can be heard on a recording of what was said on the police radio. Twenty seconds later, the sound of a dog barking can be heard on the police radio.

1. Sometime between 7 AM and 8 AM, Ms Cameron met the offender and Mr Kearnes by arrangement in the Tumblong area. Tumblong is a very small township generally located between Wagga Wagga and Tumut.

1. At about 8 AM, a gentleman who lived on the outskirts of Tumut saw Ms Cameron in his driveway. She was in a disoriented state, having either fallen asleep or passed out in her vehicle.

1. At about 5 pm that evening, the offender was pulled over for speeding by the highway patrol near the township of Yass. He was driving the vehicle of Mr Kearnes and was heading north. Present in the front passenger seat was Mr Kearnes.

1. On 2 September 2011, the police located the offender at the home of Mr Kearnes in Dalhunty Street. On the same day, the offender chose to take part in a recorded interview with the police. In that interview, he denied any knowledge of the murder, and told a large number of other lies.

1. Sometime in October 2011, the offender had at least one conversation with his aunt. Because the details of the conversation were disputed to a degree in the trial, I shall return to them later.

1. In short, it was not in dispute on the part of senior counsel for the offender that the offender travelled with Mr Kearnes from Tumut to Wagga Wagga in the very early hours of the morning of the murder. Nor was it disputed that Mr Kearnes mercilessly shot the deceased and caused his death shortly before 5 AM that morning. Nor was it disputed that, after the murder, the offender took steps to assist Mr Kearnes to evade justice with regard to his crime, well knowing that Mr Kearnes had committed it.

Disputed matters

1. A number of discrete matters require resolution by me. It was accepted by both parties that, as I have said, before I could take any disputed matter into account against the offender in aggravation, above and beyond the elements of the offence of which he was convicted by the jury, I would need to be satisfied of it beyond reasonable doubt.

1. The first matter in dispute is whether, on the trip back from Canberra, the offender justified the speed at which he was driving by saying words to the effect that he was in a hurry because he and Mr Kearnes had something to do that evening. The ancillary question is whether, if I were satisfied that those words were said, that was a reference to a murder that at that stage had already been planned between the two men.

1. The second issue is whether I am satisfied that, when the offender and Ms Cameron returned to Dalhunty Street and there met Mr Kearnes, present in the lounge room was a cut-down firearm that must have been seen by the offender.

1. The third issue in dispute is whether ammunition was present at the same place and time, and whether the offender was aware of that as well. If so, an ancillary question is whether the offender took steps to secure and store that ammunition in the lounge room.

1. The fourth issue is whether, before they left the premises that evening, Mr Kearnes forcefully stated his intention, in the hearing of the offender, to kill a "paedophile".

1. The fifth issue is whether, shortly before their departure, the offender himself instructed Ms Cameron to listen to a scanner that was present at the home.

1. The sixth and final issue is whether, in the early hours of the morning, the offender spoke to Ms Cameron whilst using the mobile phone of Mr Kearnes, and instructed her to listen carefully to the scanner in the next few minutes.

Evidence of Tamsin Cameron

1. Resolution of all of those matters requires a careful consideration of the evidence of Ms Cameron in the trial. That is because, with regard to all of the matters in dispute, her evidence stands alone in support of them.

1. Since the proceedings on sentence one week ago I have taken the opportunity to re-read in its entirety the transcript of the evidence that Ms Cameron gave in the trial.

1. There were a number of markedly unsatisfactory aspects of the evidence of that witness.

1. The first was her demeanour. Ms Cameron was agitated in the witness box and frequently interrupted counsel and, on occasion, me. She was unable or unwilling to answer a direct question directly on many occasions. She insisted on giving rambling and discursive explanations. Eventually, in the absence of the jury, I felt compelled to mention to her the possibility of punishment if she did not comply with my repeated requests. One was entitled to suspect from her demeanour that she was perhaps under the influence of a prescribed or prohibited stimulant.

1. Secondly, on the Crown case, Ms Cameron was unquestionably a person who was deeply involved in the murder of the deceased. On the Crown case, she listened to the scanner in order to permit Mr Kearnes and the offender to commit the offence and to maximise their chance of evading the police. On the Crown case, after the offence she met the two men at Tumblong in order to help them escape justice. It could be said that, on the Crown case, Ms Cameron was an accessory before and after the murder.

1. Thirdly, for many months, Ms Cameron said nothing about the events of that evening to anyone in authority. Indeed, she provided the police with two statements denying any knowledge of what occurred and which were therefore thoroughly dishonest.

1. Fourthly, on her own evidence, it was only after the police had intimated to her that she was facing many years in gaol as a result of her own actions that she then gave a detailed statement implicating Mr Kearnes and the offender.

1. Fifthly, there were a large number of inconsistencies and discrepancies between that statement, the evidence that she gave at the committal hearing of the offender, the evidence she gave in the trial of Mr Kearnes, and the evidence she gave in the trial of this offender.

1. Sixthly and finally, in September 2011, Ms Cameron was recorded by way of a lawfully obtained telephone interception calling a friend in Canberra. That call is well open to the interpretation that Ms Cameron was herself seeking to engage a contract killer to murder some other individual, perhaps Mr Kearnes. In the witness box, Ms Cameron provided an explanation for that call that was thoroughly incoherent, and which I firmly reject as a lie on oath.

1. In all of the circumstances, whilst I by no means automatically reject everything that Ms Cameron has had to say, I certainly approach her assertions with the utmost caution.

1. Finally, I note for completeness that the offender neither gave evidence in the trial or proceedings on sentence, nor called any witness, with regard to these disputed matters. Of course, those facts play no role in diminution of the heavy burden that the Crown must discharge.

Resolution of disputed matters

1. I turn to my analysis and resolution of the six matters in dispute.

1. As for the discussion in the motor vehicle on the return trip from Canberra, it is not disputed that the offender was indeed driving fast, and that that led to a serious argument between the offender and Ms Cameron. Despite my caution, I am satisfied that the offender gave that explanation for his driving. In short I am satisfied that the offender did say those words, and furthermore that he and Mr Kearnes had arranged to "do something" that evening.

1. However, I am by no means satisfied beyond reasonable doubt that, at that stage, there was a formulated plan between the offender and Mr Kearnes to murder the deceased. To the contrary, I consider that it is a reasonable possibility that, at that stage, the agreement was merely to threaten or assault the deceased. In that regard, I am fortified by the evidence of the aunt of the offender, who gave evidence that her nephew had said something to her to that general effect, and I assessed her as a witness of truth.

1. As for the presence of the firearm at Dalhunty Street, it is true that on different occasions Ms Cameron has given different descriptions of it. Originally she described it as a rifle, which is consistent with the fired cartridge cases found at the scene of the shooting. On at least one other occasion, she seemed to be describing it as a sawn off double-barrelled shotgun. There have also been discrepancies in her versions as to where Mr Kearnes was standing or sitting when she first observed the firearm. And yet from the date of her third statement many months ago, she has been adamant about its presence. In the witness box she described her sighting of it in emotive terms that, to my mind, had the ring of truth. Finally, it will be recalled that there was no dispute on the part of senior counsel for the offender that Mr Kearnes did indeed travel from Tumut to Wagga Wagga in the vehicle of Ms Cameron that evening, and did indeed shoot the deceased at the latter location. I consider that there is force in the submission that the learned Crown Prosecutor made to the jury, which may be summarised as being the proposition that the firearm could not have originally been in the vehicle of Ms Cameron; it had to travel to the vehicle from some other location before the journey was undertaken; and that location was the home in which Ms Cameron had seen it.

1. I am satisfied to the criminal standard that the firearm was in the premises at Dalhunty Street on that evening. And I am satisfied to the same standard that the offender was aware of its presence.

1. With regard to the third issue, the presence of the ammunition in the home, again, there have been discrepancies in the evidence of Ms Cameron. At one stage in the past she has spoken of a single box, but at the trial was speaking of boxes of ammunition. Nevertheless, for the same general reasons, I am satisfied beyond reasonable doubt that the ammunition was in the home on the evening in question, and that the offender was aware of its presence.

1. However, I am not persuaded beyond reasonable doubt that the offender himself touched or otherwise dealt with the ammunition whilst it was in the home.

1. As for the forceful expression by Mr Kearnes of his intention to kill that evening, it is true that there have been some minor discrepancies in the version given by Ms Cameron of the precise words used. But in truth there has been no evidence that the deceased was a paedophile, or that Mr Kearnes had the slightest reason to suspect him of being one. In other words, the fact that those words may have been said by Mr Kearnes to lay a false trail has about it a ring of truth. Again, in the witness box, Ms Cameron was adamant and emotional about the fact that those words were said. Finally, I consider it to be very significant that the evidence of the aunt of the offender was that he said to her that he had been told by Mr Kearnes that the person to be "sorted out" was a paedophile.

1. Despite my great caution, I am satisfied beyond reasonable doubt that the intention to kill was indeed expressed by Mr Kearnes, and heard and understood by the offender.

1. As for the proposition that the offender himself directed Ms Cameron to monitor the scanner before the two men departed Dalhunty Street, whilst I am satisfied that she certainly did undertake that task by way of the item that was subsequently located by the police, I am not satisfied to the requisite degree that it was the offender himself who gave that order. I think that there is a reasonable possibility that in truth it was Mr Kearnes.

1. In the same vein, I am not satisfied that it was the offender, using the telephone of Mr Kearnes, who spoke to Ms Cameron in the early hours of the morning and asked her to closely monitor the police radio in the subsequent few minutes. Again, I consider that there is a reasonable possibility that, in truth, the speaker was Mr Kearnes.

1. To summarise my findings of fact then, I am not satisfied beyond reasonable doubt that there was a prearranged plan between the offender and Mr Kearnes to murder the deceased as at the time of the trip from Canberra to Tumut. I am satisfied that, in the evening, the offender was aware of the presence of a firearm and suitable ammunition, each of which was available to Mr Kearnes. I am also satisfied that, before the two men left the home, Mr Kearnes expressed an intention to kill.

1. It follows that I am satisfied beyond reasonable doubt that, from the time of their departure well before midnight on the evening of 20 July 2011, the offender was aware that his friend Mr Kearnes was intending to commit a murder, and the offender accompanied him with that state of awareness. However, I am not satisfied beyond reasonable doubt that the offender committed any other particular act that assisted or encouraged Mr Kearnes to complete that crime before or during its occurrence.

1. To my mind, it cannot be established that the offender and Mr Kearnes were necessarily in each other's company during the whole of the period between their departure from Dalhunty Street and the commencement of their trip to Wagga Wagga. It follows that I shall sentence the offender on the basis that his encouragement or assistance is made out by way of his being in the company of Mr Kearnes during the hour-long trip to Wagga Wagga, and his presence in the general vicinity of the apartment block in which the shooting took place.

Objective seriousness of the offence

1. It is convenient now to turn to a brief assessment of the objective seriousness of this murder. At the outset, I accept the general proposition put forward by senior counsel for the offender that, very often, the objective criminality of an accessory will be substantially less than that of a principal. And I consider that that submission is apposite in the circumstances of this case. As I have said, it was Mr Kearnes who entered the flat of the deceased and cold-bloodedly murdered him. One cannot be satisfied that the offender was present in the appartment at that time. Nor can one be satisfied, as I explained a moment ago, that the offender provided Mr Kearnes with active or specific help in carrying out that crime.

1. Having said that, I have found as a fact that, for many hours, the offender well knew what was to occur. His presence in the company of Mr Kearnes intentionally encouraged or assisted Mr Kearnes to complete the crime. The matter may be sharply contrasted with a murder whereby, for example, an offender involves himself in a brawl and, for a few brief seconds, intentionally encourages or assists a friend to inflict really serious physical injury on an opponent with the intention to do so.

1. I assess the objective criminality of the offender as very grave.

Subjective features

1. I have spoken at length of the circumstances of the crime, and my resolution of disputed facts relating to it. I turn now to discuss the personal life and character of the offender.

1. As I have said, this matter required resolution by way of a trial. Of course, the offender is not to be punished for adopting that position. And I consider that he deserves some credit for the concise and focused way in which these proceedings were conducted. It is also the case, as I have said, that by the time of trial the offender admitted that he had been an accessory after the fact to murder, a fact that the Crown asserts is quite correct.

1. Having said that, there is no evidence, whether at the time of the trial or at the time of the proceedings on sentence, of remorse on the part of the offender with regard to the murder in which the jury has found he involved himself.

1. Above and beyond the evidence in the trial, the evidence about the offender himself is established chiefly by his criminal record, along with a detailed psychological report. That report is itself founded upon things told to the psychologist by the offender and his mother. The Crown Prosecutor accepted that I would be entitled to be satisfied on the balance of probabilities of matters of background contained in that report.

1. The offender is 30 years of age, having been born in Tumut in July 1983. He has not enjoyed a life of good fortune or privilege. To the contrary, he has suffered deprivation from an early age.

1. The father of the offender had a serious problem with alcohol, and, when drunk, could be a very violent man. Indeed, it is the case that he was imprisoned for severely assaulting the offender when the offender was a 13-year-old boy. The mother of the offender informed the psychologist that, for over a quarter of a century, she was severely assaulted by her former husband. So great was her fear of him that she decided to endure that treatment, because she felt it was safer to stay with him rather than try to escape and not know where he was and what he might do.

1. By the time he left home at the age of 15 years in the event of the separation of his parents, the offender had already run away more than once, and been held in juvenile detention centres. He misbehaved at school and was frequently suspended.

1. I accept on the balance of probabilities without difficulty that the violence meted out to the mother of the offender and to the offender himself when he was a young boy damaged him emotionally and played a significant and ongoing role in his subsequent difficulties with alcohol and drugs, and his attendant criminality.

1. The offender has been a drinker of alcohol since his early teens. Alcohol quickly became a serious problem for him, and he was a daily drinker before he turned 18. He informed the psychologist that it would not be uncommon for him to drink a bottle of whisky a day. As recently as January this year, when he spoke to the psychologist after many months in custody, he stated that he "loves alcohol and still craves it". I accept that part of the attraction of alcohol for him is that it calms him and reduces a feeling of stress from which he otherwise suffers, and which has proven resistant to relief by way of prescription medication.

1. Quite apart from alcohol, the offender has abused prohibited drugs, most particularly cannabis and amphetamines. The offender was open with the psychologist to the extent that he accepted that he is suffering a serious addiction to drugs and alcohol. Regrettably, he has no plan for, or even serious thoughts, of abstinence in the community; he merely expressed the thought that that could occur "one day".

1. As I have said, I accept that his addictions can be sheeted home to a significant degree to emotional problems arising from his brutal mistreatment as a child. Having said that, his counsel accepted that there is no evidence that, on the evening in question, the offender was affected by drugs or alcohol, including the amphetamines that were ingested on the trip from Canberra.

1. The criminal record of the offender does not do him credit. Since the year 2000, when he was 17 years of age, he has been dealt with for a number of offences to do with driving, dishonesty, and violence. He has seen fit more than once to contravene a court order in the form of an apprehended domestic violence order. In the past he has been sentenced to various short periods of imprisonment. There is a flavour in his criminal record of a person who has been unable or unwilling to obey the criminal law in general, and court orders in particular. Having said that, by my reading all of his matters have been prosecuted in the Children's Court or the Local Court, and, as I said, all of the sentences to which he has been subject have been short ones. There is nothing remotely approaching the seriousness of the current matter in this man's criminal antecedents.

1. As against that, I regard it as a serious matter of aggravation that, as at the date of this murder on 21 July 2011, the offender was on parole. That is because on 23 August 2010 he was sentenced to a head sentence of imprisonment for 15 months to commence on 19 July 2010 and to conclude on 18 October 2011. A non-parole period of three months expired on 18 October 2010, and the offender was released on that date. In other words, the offender had only been released from prison nine months before he involved himself in this murder. Whilst I accept the submission of his counsel that he was on parole for a serious offence of driving rather than, for example, a serious offence of violence, nevertheless I regard his conditional liberty as a seriously aggravating matter. It also gives one cause for concern with regard to his prospects of rehabilitation.

1. Returning to the psychologist's report for a moment, the offender was found by the psychologist to be a person who seeks closeness and direction and yet fears rejection; who suffers from negative feelings with regard to his own self-worth; who is fatalistic and pessimistic; and who has an implicit distrust for others and the community. I accept all of those findings, and consider that those aspects of the personality of the offender may have played a role in his involvement in this crime. Before leaving the psychological report, I note that it says nothing of any mental illness suffered by the offender now or in the past.

Motive

1. I turn now to the question of motive, and to the more general question of how it is that this man involved himself in this murder.

1. The criminal record of Mr Kearnes was tendered in these proceedings on sentence. It establishes that, at the time of the offence, Mr Kearnes was aged about 50 years and the offender was 28. It also establishes that Mr Kearnes has a far more serious criminal record than the offender. In particular, Mr Kearnes in the past has served, for a series of offences of physical and sexual violence, a head sentence of imprisonment for 13 years with a non-parole period of eight years.

1. As I have said, the position of the parties at trial was that it was Mr Kearnes who shot the deceased. It was also, as I have explained, the Crown case that it was Mr Kearnes who, at his own home, possessed the firearm and expressed the intention to kill. As I have indicated, the offender at the time of the offence was on parole, and it seems that he was living at a caravan park owned by his relatives in Tumut. I accept that the offender had met Mr Kearnes in a hotel and commenced to do odd jobs for him.

1. It is not easy to understand how a man such as the offender, with his reasonably limited criminal record, involved himself in this level of criminality. I think there is force in the proposition of his counsel that the offender was "carried along" in the murder by way of the force of personality of Mr Kearnes, and I accept that proposition on the balance of probabilities. Having said that, I also accept the submission of the Crown that there is no evidence that the offender was overawed or threatened or forced by Mr Kearnes to involve himself in this murder.

1. On the evidence, I am unable to determine a precise motive for the commission of the offence by the offender. Indeed, it seems that the offender had never even met the deceased. On reflection, I am satisfied on the balance of probabilities that the offender involved himself in this offence in a reprehensible attempt to ingratiate himself with Mr Kearnes. Although I suspect that it could be the case that Mr Kearnes tricked the offender into believing that he was assisting in the meting out of punishment to a paedophile by way of execution, I am not satisfied of that matter to the necessary standard as a matter of aggravation or mitigation, and accordingly I put that suspicion to one side.

The future

1. As for the future, I possess a guarded optimism about the prospects of rehabilitation of the offender. In the past he has been a worker, and I expect that he will continue to be throughout the years ahead in custody. He is in a romantic relationship of some years' standing with a lady who lives on the South Coast of New South Wales and who appears to be, on the limited description of her in the psychological report, a person of good standing in the community. She supports him by visiting him regularly. As well as that, his mother attended throughout the trial, and was in attendance during the proceedings on sentence. No doubt the love and support of those two women will assist his rehabilitation in the future.

1. I also think that there is a reasonable prospect that the offender will come to see that he needs to address his abuse of drugs and in particular alcohol, and in order to do so he must address the underlying psychological damage that was done to him many years ago. Although he will not be a young man when he becomes eligible for release, there will be ample time in his life for him to demonstrate that, even despite the gravity of what he has done, he deserves to be given another chance in the community.

Proportionality with sentence imposed upon Mr Kearnes

1. I turn now to the question of proportionality between the sentence imposed upon Mr Kearnes and any sentence to be imposed upon the offender. Senior counsel for the offender submitted that this is not a matter for the application of the concept of parity in the strict sense, in that the evidence, the issues, and my resultant findings of fact in the proceedings on sentence of Mr Kearnes are not identical with those in these proceedings with regard to the offender. I accept that proposition, and I accept his further proposition that, nevertheless, there must be due proportion between the sentence imposed upon Mr Kearnes and the sentence imposed upon the offender.

1. I repeat that, it is accepted between the parties in these proceedings that it was Mr Kearnes who shot the deceased. I accept on the balance of probabilities on the evidence before me in these proceedings that it was Mr Kearnes who mutilated the body of the deceased and saw fit to leave his ear in the garden of the apartment block. I am not satisfied to the criminal standard that the offender played any role in that act, or was aware that it was to occur. Like the offender, Mr Kearnes ran a trial and expressed no remorse for his crime. In sharp contrast to the offender, Mr Kearnes had previously served a lengthy term of imprisonment for offences of great violence.

1. Mr Kearnes was sentenced to a head sentence of imprisonment for 30 years with a non-parole period of 22 years 6 months. I respectfully accept the submission that proportionality calls, in all of the circumstances of this case, for the imposition of a head sentence and non-parole period upon the offender that is markedly less than those that were imposed upon Mr Kearnes.

Comparable cases

1. Senior counsel for the offender provided me with two judgments, one at first instance and one of the Court of Criminal Appeal, to do with sentencing offenders who are guilty of murder by way of being an accessory. Although I have found those decisions helpful, it can be seen that there are marked differences between the facts of those matters and this matter, and I regard the very lenient sentences imposed in those matters as well outside the bounds of my discretion in this case.

Various matters

1. Before proceeding to impose sentence, I shall deal briefly with a number of short aspects of the matter.

1. Although the offender, since his arrest on 10 November 2011, has served a short period of balance of parole, along with a short sentence for an unrelated offence, I consider that it is not inappropriate for me to provide him with a full backdate to the date of arrest. The Crown prosecutor did not suggest otherwise.

1. I do not propose mechanistically to state the aggravating and mitigating features that I have taken into account for the purposes of s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). Nor do I propose to review the reasons for my departure from the standard non-parole period. In both cases, these remarks on sentence fulfil that role.

1. In light of the maturity of the offender, the previous sentences of imprisonment imposed upon him, and in particular the substantial length of any parole period, I do not find special circumstances that could lead to a reduction in the non-parole period.

1. I am required by recent legislation to inform the offender that, even though I shall impose a determinate sentence, he may be detained after the complete expiry of that sentence, if it is considered that his rehabilitation is insufficient and that he remains a danger to the community.

1. Finally, after the proceedings on sentence, and two days before today, the High Court of Australia handed down its judgement in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2. To state its effect very shortly, it was held that it was wrong in principle for a judge to receive from a Crown Prosecutor in proceedings on sentence a submission as to the range of sentences said to be open to the sentencing judge's discretion.

1. In the proceedings on sentence one week ago, I enquired of the Crown Prosecutor whether he accepted the submission of senior counsel for the offender that the sentence to be imposed upon the offender should be markedly less than the sentence imposed upon Mr Kearnes. I also enquired of the Crown Prosecutor whether he regarded a particular quantum of head sentence that senior counsel for the offender had submitted could be imposed as "appropriate". I am uncertain whether the adoption of that course by me was contrary to the principle expounded in the judgment that was handed down several days later. However, for abundant caution, I have put from my mind the responses of the Crown Prosecutor to those two enquiries of mine.

Moral blameworthiness

1. Finally, I turn to assess the moral blameworthiness of the offender, taking into account all of the objective and subjective features to which I have referred. In short, a man who had suffered psychological damage as a result of a very adverse upbringing, and who was carried along by a more powerful personality, involved himself in a crime of the utmost seriousness that was, for him, very out of character. In terms of his actual criminality, he did nothing more than assist and encourage the principal by way of his knowing presence. On the other hand, he knew for many hours that an innocent citizen was to be shot to death in his own home, and he intentionally helped the principal in that undertaking. He has expressed no remorse for his crime; his criminal record is not free of acts of violence; and he was on parole at the time. It cannot be denied that the moral blameworthiness of the offender is profound. My sentence seeks to strike a balance with regard to all of the countervailing factors to which I have referred.

Sentence

1. Christopher John Paton, you are convicted of the offence of murder. I sentence you to a non-parole period of imprisonment for 14 years 3 months, to date from 10 November 2011. There will be a parole period of 4 years 9 months that expires on 9 November 2030. The first date upon which you will be eligible for release on parole is 9 February 2026.

1. To express my order another way, the offender is sentenced to a head sentence of imprisonment for 19 years with a non-parole period of 14 years 3 months.

Decision last updated: 17 February 2014