R v Petryk, Daniel

[2018] NSWSC 119

Supreme Court

New South Wales

Medium Neutral Citation:	R v Petryk, Daniel [2018] NSWSC 119
Hearing dates:	2 February 2018
Date of orders:	16 February 2018
Decision date:	16 February 2018
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1   The offender is convicted of the offences of murder, and robbery whilst armed with a dangerous weapon. 2   For those offences the offender is sentenced to an aggregate term of imprisonment of 26 years to date from 3 April 2016 and expiring on 2 April 2042. I specify a non-parole period of 19 years and 6 months, expiring on 2 October 2035. 3   The sentences that would have been imposed had separate sentences been fixed are:      (1)   Murder: 26 years imprisonment;      (2)   Robbery whilst armed with a dangerous weapon: 8 years imprisonment. 4 The offender is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.
Catchwords:	CRIME – SENTENCE – murder – robbery whilst armed with a dangerous weapon - sentence after trial - home invasion – offender armed with a loaded shortened rifle – weapon voluntarily discharged at short range – Crown case advanced on alternate bases of principal liability or constructive murder – limited subjective case
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Court Act 1998 (NSW)
Cases Cited:	Cayhadi v R [2007] NSWCCA 1; 168 A Crim R 41 Imbornone v R [2017] NSWCCA 144 R v Fidow [2004] NSWCCA 172 R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462 R v Mills (unreported decision of the NSWCCA of 3 April 1995 per Cole JA) R v Qutami (2001)127 A Crim R 369; [2001] NSWCCA 353 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Category:	Principal judgment
Parties:	The Crown Daniel Petryk – the offender
Representation:	Counsel: Mr L Carr as Crown Prosecutor Mr A Webb for the offender   Solicitors: Solicitor for Public Prosecutions (NSW) Mr A Kiely for the offender
File Number(s):	2015/332911
Publication restriction:	None

Judgment

1. HER HONOUR: By all accounts Robert Parry, one of a large family, was a much loved man. He lived with his father in Wickham, and much of his time was spent in caring for his father, who in 2015 was very ill.

2. In the early hours of 7 March 2015 Mr Parry disturbed three intruders who had entered his home intending to take drugs or money. He was shot at close range by the offender, Daniel Petryk. The offender stands before the Court today to be sentenced for Mr Parry’s murder, together with the related offence of robbery whilst armed with a dangerous weapon.

3. When arraigned upon indictment for these offences on 18 September 2017 the offender entered pleas of not guilty. He was found guilty by the jury of each charge on 23 October 2017.

4. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and carries a maximum sentence of life imprisonment, together with a standard non-parole period of, relevantly, 20 years imprisonment. Armed robbery with a dangerous weapon is an offence contrary to s 97(2) of the same Act, and carries a maximum penalty of 25 years imprisonment. No standard non-parole period is applicable to it.

5. The facts of the offender’s crimes must be determined by the Court, consistent with the verdict of the jury. In so doing, any fact adverse to the offender must be proved beyond a reasonable doubt: The Queen vOlbrich [1999] HCA 54; (1999) 199 CLR 270, at [27].

6. The Crown’s case for murder was advanced before the jury on two alternative bases, either of which was capable of sustaining the verdict that was returned. The first was that of principal liability, requiring the jury to be satisfied to the criminal standard that the offender deliberately discharged the rifle he was armed with, that his act caused Mr Parry’s death, and that the offender intended to do him at least grievous bodily harm. The second basis was that of constructive murder, requiring the jury to accept to the criminal standard that the offender committed the offence of armed robbery with a dangerous weapon and, at the time of its commission, voluntarily discharged the rifle, causing Mr Parry’s death.

7. Since the Crown’s case relied to a significant extent upon the evidence of Phoebe Bronner and Jeremy Gorman, both of whom were criminally involved in the relevant events, the evidence of each must be subjected to careful scrutiny before it can be accepted, particularly bearing in mind that each received a benefit in exchange for testimony at trial. The benefit that accrued to Ms Bronner – an indemnity against prosecution – was a very significant one. In addition, Ms Bronner was, until some months after the shooting, in a relationship with Jesse Nikolovski and, it might be supposed, may have had some lingering loyalty to him both when she spoke with police and even when she gave her evidence; she had no reason for any loyalty to the offender. This may have affected the reliability of the evidence she gave.

8. Having very carefully considered her evidence, I accept that Ms Bronner may have sought to minimise the force of some aspects of the evidence that could have been particularly adverse to Jesse Nikolovski. Where that was or may have been an issue I have concluded that she did so by asserting memory loss, or by attributing a greater role to herself than to her then partner. There is no real basis to conclude that she exaggerated the role of the offender. Her evidence about him has been generally consistent over time, and it sits with other evidence independent of her, including that of Jeremy Gorman.

9. The Court has found the facts of the offences to be as follows.

The Facts of the Offences

10. The gun used to kill Mr Parry was obtained by the offender from his friend Jeremy Gorman. In the period January to early March 2015 Mr Gorman had told the offender that he had firearms, and the offender subsequently asked “every now and then” if he could borrow them. One of the weapons in Mr Gorman’s possession was a .22 calibre rifle which had been shortened by reduction of both the length of the stock and of the barrel.

11. On 6 March 2015 Mr Gorman made an arrangement to loan the .22 rifle to the offender. The offender had asked during the course of that day to borrow a gun, and Mr Gorman agreed. Shortly after midnight, on 7 March 2015, the two spoke on the telephone and Mr Gorman said that he would leave his rifle outside his back fence for collection. He placed the rifle in a backpack, together with a handful of ammunition for it and, separately in the bag, the bolt for the gun. He took the bag to the rear fence line of his home at Redhead, and left the bag just outside his back gate.

12. Within ten or fifteen minutes Mr Gorman heard a car at his back fence. He saw a white “newish” Commodore stop briefly, and then drive off. Within a matter of minutes he received a telephone call from the offender, who asked him how to use the gun. Mr Gorman gave instructions over the telephone for its use, and then went to bed.

13. Phoebe Bronner was a passenger in the white Commodore that Mr Gorman saw stop at his back fence. The car was driven by Jesse Nikolovski; the offender was a passenger in the rear of the car.

14. Ms Bronner lived with Jesse Nikolovski at his family home in Mayfield. The two had been at home during the day on 6 March 2015 but left during the course of the evening and drove to the offender’s home at Windale to see him. Both had known him for a number of years. The offender joined the couple, and the three went for a drive. The offender said that he had to pick something up from a friend’s house, naming the friend as Jeremy.

15. The offender gave directions, and Jesse Nikolovski drove as directed, stopping the car near a fence, so that the offender could “grab something from the fence” (T481:35). The offender got out of the vehicle briefly; after he got back into the car Ms Bronner saw that he had a gun. The gun had initially been in a bag, but the offender removed it from the bag soon after the journey recommenced.

16. At some point after that, the offender told his companions he knew a house where his brother used to buy pot, and where the door was left open. He said that he would sneak in and “grab the pot” (T485:01). Ms Bronner said that there was some conversation about using the gun, with the offender saying he would use it to look scary in the event that anyone at the house came out. He began to give directions.

17. During the course of the drive the car was stopped at a location nominated in the evidence only as “a really long road” (T485:50). The offender got out of the car. Ms Bronner and Jesse Nikolovski remained in the car, arguing. After some minutes Ms Bronner heard a bang from outside the car. The offender returned to the car. The Crown argues that the offender used this opportunity to load the rifle, test fire it, and re-load it, but proof of that proposition falls well short of meeting the criminal standard, and I am unable to reach the conclusion contended for.

18. At some point when the car was stopped on the long road Ms Bronner and Jesse Nikolovski got out of the car and went to the boot, where they got two pairs of gloves and some other items of clothing, to be used to cover their identity. Although Ms Bronner did not say so directly in her evidence, necessarily an agreement had been reached by that time that the premises referred to by the offender was to be robbed by the three.

19. The journey thereafter continued.

20. Ms Bronner agreed to put the gun inside her clothing to hide it. The offender told Ms Bronner and Jesse Nikolovski that the gun wasn’t loaded, and passed it to Ms Bronner as she sat in the front passenger seat. She placed it down her pants and underneath the jumper that she was wearing.

21. At the offender’s direction Jesse Nikolovski drove to Wickham where the car was stopped, parking at the top of Grey Street, near its intersection with Union Street. Ms Bronner returned the gun to the offender, and the three got out of the car. Each of them donned items of clothing to disguise themselves, covering hands and faces. Ms Bronner and Jesse Nikolovski wore clothing they had had in the car; the offender used clothing from a bag that he had.

22. From the boot of the car one of the three removed an axe; the offender endeavoured to pass it to Jesse Nikolovski. Ms Bronner deposed that he did not take it, and she armed herself with it instead. She said that she “half put it down” her pants (T496:28) and started walking to the house. It seems unlikely that Ms Bronner could have an axe of the size of that used inside her lower clothing and still be able to walk with some freedom, although carrying it in such a way could have deposited the DNA later recovered from it. However, I accept to the requisite standard that an axe was taken to the Parry house as an additional means of frightening the occupants if necessary.

23. The offender was armed with the gun, as Ms Bronner deposed and the jury must have accepted. Although the evidence does not allow me to conclude precisely when this occurred, at some stage after collecting the gun from Redhead and prior to getting out of the car in Wickham, the offender had put the bolt into the gun and loaded it.

24. To load the rifle, it was necessary for the offender to replace the separated bolt, pull the bolt back, slide a bullet into the back of the barrel, and push the bolt back in.

25. The plan agreed between the three intruders was to sneak into the Wickham house, some short distance from where the car had been parked and, if there was no-one around, take any cannabis found there. The gun and axe were to be used to look scary if there was any person present so that the cannabis could be taken (TT497:38 – T498:01).

26. When they arrived at the Parry house at 12 Dickson Street Wickham, some minutes before 3am, there was a single light illuminated. The front door stood open. The offender, who probably had the gun concealed in his clothing at that stage, went into the house. Ms Bronner followed, passing through the enclosed veranda and entering the lounge room. Jesse Nikolovski was with her. The offender was ahead of them in the lounge room.

27. Mr Parry, who had been in his bedroom towards the rear of the property, emerged from his room and walked along the hall to the lounge room. He was holding a drink can in one hand. He saw the intruders and he told them to “fuck off out of his house” (T501:30). He raised the hand holding the can towards the offender as if to push or strike him with the can. The offender “let the gun off” (T501:33) and Mr Parry dropped to the floor. The shot was discharged at close range, with the offender and Mr Parry standing such that the muzzle of the rifle was between 400 and 750 millimetres away from Mr Parry.

28. To let the gun off and shoot Mr Parry it was necessary for the offender to remove the gun from its place of concealment, raise it and point it towards Mr Parry, pull the firing pin back, and discharge the gun. Those were all deliberate acts.

29. Mr Parry was not killed immediately; Ms Bronner heard him making noises as he lay on the floor. The offender stepped either over or around him, without taking any steps to check on his condition or provide him aid, and walked down the hall in the direction from which Mr Parry had emerged moments before. Phoebe Bronner and Jesse Nikolovski left the house, waiting briefly for the offender before fleeing to the car.

30. The offender went into Mr Parry’s bedroom and stole a small quantity of cannabis leaf from a cupboard there. He also took some cigarettes.

31. Alan Parry, disturbed by the noise, awoke. He heard thumping and what sounded like an argument, with a male voice demanding money and drugs. He got up and went into the lounge area; Ms Bronner caught sight of him briefly before she left the house.

32. Alan Parry saw his son lying on the floor. He saw two disguised intruders whom he took to be men. He saw that one man had a sawn-off rifle and what he thought to be a “Crocodile Dundee knife” or bayonet, whilst the other was unarmed. The first man was the offender; I am satisfied that the second was Jesse Nikolovski, who had not at that stage followed Phoebe Bronner from the house.

33. Alan Parry’s observations of the face covering worn by the intruders were consistent with other evidence, as were his observations of the sawn-off rifle. A “Crocodile Dundee” knife is a description which ordinarily refers to a very large knife, reaching almost to the size of a small machete. A bayonet is also a very large bladed weapon. There is no evidence beyond Alan Parry’s untested assertion to Sergeant Garrels and in his police statement that the offender or any other person was armed with a large knife; I am unable to accept that assertion as proven to the criminal standard and I have set it aside.

34. The offender asked Alan Parry, “Where is the money and drugs?” He held the gun pointed in his direction at the time. When Alan Parry said he didn’t know the offender said “You’re next”, and took the mobile telephone that Alan Parry was holding. After checking it, he handed it back. He left the house at a run.

35. The offender followed Ms Bronner and Jesse Nikolovski away from the house, returning to the car. As Ms Bronner approached the car she threw the axe into a drain in the gutter at the top of Grey Street, from where it was later recovered by police. Once the three were in the car, it drove off at speed.

36. Ms Bronner described the mood in the car as “stressed” (T505:49). Jesse Nikolovski abused the offender as an idiot, and there was an argument between them because of the offender’s earlier assertion that the rifle was not loaded. The offender told the others he had “shot him [Robert Parry] in the belly so he wouldn’t die” (T506:12).

37. Jesse Nikolovski drove to his Mayfield home. At the house the offender showed Nikolovski and Phoebe Bronner some cannabis leaf and some cigarettes that he said had come from the Wickham house. He also described taking a mobile telephone from an occupant before returning it. He gave his companions some cigarettes, leaving at some later stage, and taking the cannabis and gun with him.

38. At Dickson Street, Alan Parry called a friend for help, and an ambulance and police were contacted.

39. The first police officer at the scene was Leading Senior Constable Ben Kelly, who received the call to attend the premises at 3:05am. As soon as he could S/C Kelly commenced first aid; paramedics arrived soon after but Robert Parry’s condition was dire. A doctor arrived and Mr Parry was pronounced dead at the scene.

40. At the autopsy conducted on 9 March 2015 Robert Parry was found to have a single lethal gunshot wound to the abdomen, tracking left to right, with the wound passing through the front wall of the abdomen, the stomach and the pancreas, and entering the second spinal lumbar vertebrae where it came to rest. Massive internal bleeding and death quickly followed (T158 – T159). The fired projectile was removed and retained for forensic examination.

41. Later that morning, 7 March 2015, the offender went to the Windale home of Matthew Kennedy and Breanna Osmund with his de facto wife and young children. He was carrying a black sports bag into which he had placed the gun. The offender left the bag and its contents at the house or in its near vicinity, having made an arrangement for it to be collected from there by Jeremy Gorman.

42. When at the Kennedy / Osmund residence that day the offender saw a news report concerning events of that morning, in which it was reported that a man had been shot and died. The offender commented “No, I think he just got injured”.

43. There is a dispute in the evidence as to the collection of the gun by Mr Gorman, which need not be resolved for present purposes, other than to accept that the offender left it in or near the Windale house, and Jeremy Gorman collected it later that evening.

44. On 24 September 2015 the rifle was seized by police. The fired projectile removed from Robert Parry’s body was later determined to have been fired from the .22 rifle (T457:42-44).

45. When at the Kennedy / Osmund residence on 7 March 2015 the offender told his friends that he had breached his parole during an incident the previous day at a New Lambton hotel, and he intended to leave the area for Queensland. When Phoebe Bronner and Jesse Nikolovski stopped briefly at the house on 7 March 2015 to speak with the offender, he told them that he was going to Queensland. He had told Jeremy Gorman something similar in a text message of 4:03pm on 6 March 2015.

46. On 9 March 2015 the offender and his family took a train to Brisbane, thereafter travelling on to Townsville. His family returned to Newcastle in late April, with the offender following in July 2015. He was arrested soon after in relation to other matters.

47. The offender was charged with Robert Parry’s murder on 12 November 2015. He refused to be interviewed.

The Gravity of the Crimes

48. The gravity of the offence of murder, and the reason the legislature has specified a maximum penalty of life imprisonment for it, is in the taking of a human life.

49. Liability for murder can arise in many different ways. It is necessary in this case to consider the basis of the offender’s liability for the crime.

50. There is strong evidence upon which to conclude that the offender deliberately shot Robert Parry, intending at the time to do him really serious bodily injury, probably with the object of ensuring that he could both take the property he had come to steal, and escape unimpeded.

51. Having regard to the jury’s verdict, its members accepted that the offender acquired the gun, had it in his possession during the early hours of 7 March 2015, replaced the bolt and loaded the weapon, carried it into Mr Parry’s house and, when confronted, raised it, pointed it in Mr Parry’s direction and discharged it.

52. The likely consequences of such an act are so obvious that it could readily be concluded that the offender must have intended to do really serious bodily injury. I do not accept the offender’s submission that there was a degree of inadvertence in his actions. On the contrary, the deliberation required in carrying out the steps preparatory to discharging the gun, and then discharging it, coupled with his comments about shooting in the belly so as not to kill, could bespeak an intended consequence.

48. The offender’s comments to Ms Bronner and Jesse Nikolovski in this regard are of particular relevance, as is the way in which, on the evidence of Ms Bronner, the comment was made. In recounting his assurance that the occupant of the Dickson Street house would not die, this evidence was given.

Q: Any discussion about the health or otherwise of the man that had been shot?

A: Yeah.

Q: What was said about that?

A: Daniel said that he wouldn’t die.

Q: Daniel said, that’s Mr Petryk said that he wouldn’t die?

A: Yep.

Q: Did he give any reason as to why this man was not going to die?

A: He said he shot him in the belly so he wouldn’t die.

Q: Shot him in the belly so he wouldn’t die?

A: Yep.

54. The almost irresistible conclusion on that evidence, its syntax and the emphasis given in the spoken word, was that the offender had chosen to shoot Mr Parry in the stomach, believing that a bullet to the abdomen would not kill him. That may be a naïve view, but it is open to accept that the offender genuinely held it.

55. The intention of the offender in carrying a loaded firearm into the premises is relevant: he told Ms Bronner and Jesse Nikolovski that he meant to use the gun only to scare. Whilst intentions can alter, soon after the shooting the offender assured the others that he had shot the man in the belly and he would not die. Finally, later on the morning of 7 March 2015 when the offender saw the news story about the shooting when he was at the Kennedy / Osmund home, he asserted that the man had been injured and not killed.

56. All of that evidence – some of which is independent of Ms Bronner – supports the conclusion that, in shooting Mr Parry, the offender discharged the gun with the intention of seriously harming him so that he could complete the robbery and escape.

57. However, the Crown does not ask the Court to draw that conclusion, submitting that the basis of liability for murder established by the evidence is constructive murder. In light of that submission, I propose to sentence the offender on that basis.

58. That is not to conclude however that the offender’s crime is thereby less serious. In R v Jacobs (2004) 151 A Crim R 452; [2004] NSWCCA 462 at [332] Wood CJ at CL said:

Constructive murder is not to be regarded as less serious, and thereby attracting a lighter total sentence or non-parole period than that which is appropriate for other categories of murder: R v Mills NSWCCA 3 April 1995. Just as is the case for the other categories, there are degrees of seriousness of constructive murder, and the determination of the appropriate sentence for any individual offence depends upon the nature of the offender’s conduct and the part which he or she played in the events giving rise to death: R v JB [1999] NSWCCA 93.

59. In the circumstances of this offending there could be no real distinction drawn between the seriousness of the crime on the basis of constructive murder or its seriousness on the basis of shooting with an intention to inflict grievous bodily harm.

60. The offender conceived of the plan to steal property from the Dickson Street house, robbing any occupant by threat of arms and numbers.

61. Notwithstanding the evidence of Ashley McKeown (which I regard as false) I am satisfied that, through the association between Mr Parry and Ms McKeown and Luke Enderby, the offender was aware that a man lived at and sometimes sold cannabis from 12 Dickson Street. He targeted that premises because of that knowledge.

62. He sought out and obtained a firearm which he knew or believed to be in working order. Having obtained the gun in circumstances where the bolt was separate, he replaced the bolt and loaded the gun, such that the gun was able to be immediately fired.

63. The offender sought instructions from Jeremy Gorman as to the use of the gun, suggesting that he contemplated its possible use.

64. He suggested the robbery to Phoebe Bronner and Jesse Nikolovski, and enlisted their participation in it. The foundational offence was committed in company with them.

65. Having obtained a gun with which to arm himself, the offender also passed an axe to a co-offender for use in the robbery, such that two potentially lethal weapons were used.

66. The offender was aware that the targeted premises at Dickson Street was a domestic residence. He knew as much from his sister and former brother-in-law, and the house additionally was in what is plainly a residential street. Together with Bronner and Nikolovski the offender invaded what should have been the peace and security of the Parry residence to commit the robbery.

67. The foundational offence was a premeditated one.

68. Although the armed robbery was planned, the act of shooting Mr Parry was a spontaneous response to the situation that arose when Mr Parry confronted the offender.

69. It nevertheless involved the intentional acts of producing the gun from its place of concealment (probably within the offender’s clothing), raising it to a broadly horizontal position, aiming it towards Mr Parry at relatively close range, and discharging it.

70. Whilst there is no evidence that the offender was aware of this, Robert Parry was more vulnerable than a non-hearing impaired person because of his hearing disability. Bearing in mind that he walked into his lounge room still carrying a drink, it is entirely possible, if not probable, that he had not heard the entry of the intruders, and was unaware of their presence until confronted by the gun wielding offender.

71. During the course of the commission of the offences, the offender threatened Alan Parry, an elderly and vulnerable man.

72. The property of which Robert Parry was robbed was of limited value, consisting of a small quantity of cigarettes and a small amount of cannabis. Based upon the text message Mr Parry sent to a friend at 1:28am on 7 March 2015, and the later discovery of one bag of cannabis leaf near Mr Parry’s body, the stolen cannabis was worth, at most, $50.00. The cigarettes were probably worth considerably less than that. That a man could be killed for such property is deeply shocking.

73. The crime of murder can occur in an incalculable number of ways, with liability advanced on differing bases within that species of offence. Here, a young man who has lived a drug addicted life armed himself with a gun, which he deliberately assembled and loaded, for the purpose of entering a home and, if necessary, threatening the resident to hand over cannabis. In pursuit of that aim a man was killed, in his own lounge room, in circumstances where the victim’s elderly father was both threatened, and confronted with the horror of his son’s murder. There is no real distinction to be drawn between these circumstances and that which pertains to a shooting with intent to cause at least grievous bodily harm.

74. Insofar as it is necessary to express it in this way, I have concluded that this instance of murder falls in the middle of the range of objective gravity applicable to all offences of murder.

Victim Impact Statements

75. As earlier observed Mr Parry was a member of a large family; he was one of six children and, at the time of his murder, his parents were both living. He was aged only 41 years old at the time of his death.

76. The Court had the benefit of victim impact statements from Mr Parry’s mother and siblings. His father, who witnessed much of the horror of this crime, has sadly died since the commission of the offence.

77. In words, pictures, and via the imagery of poetry, Mr Parry’s family have spoken of their great grief at his murder, and the hole that is left in their lives as a consequence of his death. The offender’s crime has had a terrible and lingering impact on all of those who loved Mr Parry, as it has had an impact on the community more broadly.

78. Therein lays the seriousness of the crime of murder. That Robert Parry was greatly loved, and that those who love him suffered greatly and suffer still, does not make this murder more serious than any other; it is why all murders are viewed so seriously.

79. The Court is grateful for the insight of Mr Parry’s family into the consequences of the crime for each of them. Their loss is indeed a profound one and I extend the Court’s sympathy to the Parry family.

The Offender’s Personal and Subjective Circumstances

80. The offender was 23 years of age in March 2015; he is now aged 25 years.

Criminal History

81. The offender has appeared before the criminal courts with some regularity since he was 13 years of age. As a child he accrued some thirty entries for offences proven against him, including for offences of aggravated break enter and commit serious indictable offence (where the circumstance of aggravation was being in company), assaulting a police officer, property damage, and break enter steal. He was penalised by sentences ranging from a dismissal with caution, to control orders. The Office of Juvenile Justice were frequently involved with the offender in his youth, and sentencing orders imposed conditions upon him designed to ensure school attendance, compliance with treatment, and a community support regime.

82. The offender’s continuing criminal history is testimony to his failure to take advantage of the support and assistance made available to him through the Children’s Court.

83. Less than a month after his 18th birthday the offender had been charged as an adult, being dealt with for a dishonesty offence and driving whilst disqualified. Thereafter, he was convicted of offences of take and drive conveyance, break enter steal, possess prohibited drug, having custody of a knife in a public place, and possess housebreaking implement. He served sentences of imprisonment from time to time.

84. In August 2014 the offender was called up for breaching a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) imposed on 11 October 2013, and the call-up was dealt with in the Drug Court pursuant to s 7(3) of the Drug Court Act 1998 (NSW). There were a number of other offences referred to the Drug Court at that time, including larceny, and property damage. On 25 August 2014 the Drug Court announced indicative custodial sentences for those offences, suspended as a consequence of the offender’s participation in the Drug Court programme.

85. The offender was in the community subject to conditional liberty as a consequence of that sentence at the time of Mr Parry’s murder. That is an aggravating feature on sentence.

86. On 6 March 2015 the offender was spoken to by police in relation to an allegation of damage to property at an hotel in New Lambton. He was served with a Future Court Attendance Notice, and was awaiting disposition of that matter before the courts at the time.

87. The applicant breached the Drug Court’s orders, not least by absconding to Queensland. On returning to New South Wales in July 2015 the offender appeared before that Court, on 24 August 2015, and was sentenced to an aggregate term of imprisonment of 14 months, for offences of resisting police, larceny, being carried in conveyance, and property damage. The sentence commenced on 4 July 2015 and expired on 3 September 2016, with the 9 month non-parole period expiring on 3 April 2016.

88. The aggregate sentence imposed on that day was also referable to the property damage offence of 6 March 2015.

89. As noted, the offender’s criminal history shows the regularity with which he has breached the criminal law, and his breach of conditional liberty by the commission of these offences. It must be observed however, that his history is principally for relatively minor offences, and there is only one matter directly involving violence or the threat of it, being an entry for assault police.

Custodial History

90. The offender’s custodial history shows that he has in the past breached parole, and had parole revoked on three occasions in 2010 and 2011.

91. In his most recent incarceration the offender has been dealt with for breaches of prison discipline: for delivering or receiving an article to or from an inmate (21 August 2016), refusing or failing a drug sample (14 November 2016), receiving an unauthorised article from a visitor (18 January 2017), fighting or other physical combat (13 March 2017), and disobeying a direction (21 June 2017).

Background and Psychological Assessment

92. The offender did not give evidence, and his case on sentence was very limited.

93. As a consequence, what follows is largely derived from the report of Anne Lucas, Forensic Psychologist, who consulted with the offender on 12 December 2017 at the request of his legal representatives, and prepared a report for use on sentence (Ex. P1). Ms Lucas had access to medical records concerning the offender held by the Hunter and New England Local Area Health District, and a psychiatric report from Dr Sharon Reutens of 11 August 2017, neither of which are in evidence.

94. The offender grew up in the Newcastle area, living with his family and siblings in Housing Commission accommodation in circumstances of social and economic disadvantage. He complained of experiencing frequent assaults at the hands of his father, who was an alcoholic, and witnessing instances of domestic violence directed towards his mother. The family was not a close one and the offender felt unsupported.

95. He was frequently detained during childhood in juvenile detention facilities, and was perceived as a “trouble maker” at school. He fell in with a group of anti-social youths, including Jesse Nikolovski.

96. The offender told Ms Lucas that he had been diagnosed as a child with Attention Deficit Disorder, and later an Oppositional Defiance Disorder and learning difficulties. His intelligence was assessed as Low Average. Intervention was required during the offender’s schooling to deal with problematic behaviour, including assaults.

97. The offender reported having used cannabis as a teenager, and alcohol to excess from about age 15. He began using methylamphetamine from age 21, continuing to use that drug for about 2 years, with a significant daily habit in that period, reported as between 1 to 2 grams. There is a suggestion that he has also used heroin.

98. At age 17 the offender left home, taking up residence with Amber Stewart. The couple remained together until the offender was incarcerated in 2015. They have two children, now aged 4 and 3 years of age respectively. Ms Stewart retains the care of the children. There is no evidence as to what if any contact the offender has with his children.

99. In 2014 the offender was involved in a motorcycle collision, fracturing his right leg. Surgical repair was necessary and there is said to be ongoing pain and mild impairment in function, although there is no medical evidence of that.

100. The offender has been treated in the past for depression.

101. On assessment, Ms Lucas thought that the offender displayed appropriate attention to personal grooming, and his communication and interpersonal interaction was also appropriate. The offender answered questions logically, gave a clear chronology of events, and was fully oriented.

102. He became distressed when discussing his incarceration and Ms Lucas considered that the offender’s presentation was consistent with depression. He has some mild insomnia. Having administered tests designed to measure personality and psychopathology, Ms Lucas concluded that,

“45. Overall the clinical profile suggested that Mr Petryk experiences embittered pessimism. He tends to attribute negative circumstances occurring in his life to the shortcomings of others. It was noted that the considerable anger and resentment he reported in the PAI appears to be directed as much to himself as it is to others.

….

47. Mr Petryk endorsed items on depression subscales indicating difficulties consistent with a significant depressive experience. The quality of his depression seemed primarily marked by cognitive features such as negative expectancies and low self-esteem. He endorsed items indicating frequent feelings of worthlessness, hopelessness and personal failure. Mr Petryk did not report any distress from thoughts associated with the presence of suicide or self harm at this time.

48. He endorsed a number of problematic personality traits with his responses suggesting that a major problem for him are his interpersonal relationships. He appears to have had a history of involvement in intense and volatile relationships and indicated that he is preoccupied with consistent fears of being abandoned or rejected by those around him.

49. His personality style also involves a degree of adventurousness and risk-taking. A number of responses indicated that he has a history of antisocial behaviour which manifested as conduct disorder during adolescence.”

103. The offender’s use of illicit substances and alcohol was regarded as problematic.

104. Ms Lucas “suggested” diagnoses of Anti-Social Personality Disorder / Borderline Personality Disorder, Multi-Substance Misuse Disorder, and a Major Depressive Disorder.

105. The offender’s cognitive function was measured as falling below 92% of his peers when considered overall, although verbal skills were slightly lower, and perceptual reasoning skills rather better. His General Ability Index Score placed him in the low average band. He is not intellectually or developmentally disabled.

106. Ms Lucas concluded,

“85. Psychologically Mr Petryk appeared to be an individual who has difficulties in his relationships with others, but who craves close relationships. He provided an account in which he maintains much of his criminal behaviour has been a consequence of wanting to please others (criminal associates) so they will like him. He presents with low self esteem and an externalising predisposition where he believes his fortunes are dependant [sic] on the behaviour of others. His failure to take responsibility, a theme throughout this assessment, appears to be an extension of these factors.”

107. Since Ms Lucas’ opinion is dependent to a considerable extent upon the untested self-report of the offender a degree of circumspection concerning it is necessary: R v Qutami (2001)127 A Crim R 369; [2001] NSWCCA 353 at [58] – [59]; Imbornone v R [2017] NSWCCA 144 at [57]. However, there is nothing particularly controversial in what the offender told Ms Lucas; indeed, it is much as might be expected for an individual with a criminal record like that of the offender. In the circumstances here, there is no real reason not to accept Ms Lucas’ opinion.

108. Ms Lucas does not suggest that anything in the offender’s psychological makeup is of direct relevance to the commission of these offences, or that anything in his current situation will have a material impact on his immediate future. As a general proposition it is reasonable to conclude that the dysfunctional nature of the offender’s earlier lifestyle, and his abuse of alcohol and illicit drugs, contributed to the choices he made in March 2015.

Other Matters Relevant to Sentence

Remorse

109. As is acknowledged by the offender in submissions, he entered pleas of not guilty to each charge and maintains that he is not responsible for Mr Parry’s murder. He told Ms Lucas that he obtained a gun, but only at the insistence of a friend. In those circumstances there is no remorse.

The Prospects of Rehabilitation

110. The offender’s history is one of failing to take advantage of opportunities for assistance offered to him by sentencing courts, and continuing in a criminal lifestyle.

111. Ms Lucas observed that the offender blamed his criminal past on his wish to please others. She noted that his failure to take responsibility for his life was a “theme” during her assessment of him. The offender’s only comment about his crimes was to displace responsibility for obtaining a firearm on 7 March 2015 onto his friend.

112. He has incurred relatively recent institutional penalties, suggesting that his current situation has not motivated him to change his behaviour.

113. Ms Lucas considers that the offender would benefit from rehabilitative programmes directed to substance abuse, mood dysregulation, and anti-social cognitions, and I do not doubt that that is so. What the offender may make of such programmes, however, will be a matter for him. I am unable to draw any conclusions as to his interest or willingness to participate in rehabilitative activity, or to reach any concluded view as to his prospects of rehabilitation. They must be considered guarded at best, particularly in circumstances where there has been no acknowledgement of wrongdoing.

Deterrence

114. Offences of armed robbery are not uncommon offences, but the danger associated with such crimes, particularly where a loaded firearm is the weapon of choice, cannot be understated. There is a strong need for the sentences imposed on offenders by this Court for offences involving the killing of an individual by a robber using a gun to constitute an appreciable deterrent, to the offender, but also to others.

115. In R v Mills (unreported decision of the NSWCCA of 3 April 1995) Cole JA said:

As the trial judge made clear, taking a loaded firearm and using it as a threat whilst in the course of committing a serious felony is a most serious matter. It is to be greatly discouraged by sentences of this Court.

116. There is nothing in the offender’s subjective case which would make that principle any less applicable to him.

117. Specific deterrence is also an issue, although not one of great significance in the absence of a history of the commission of violent offences or offences of robbery.

Special Circumstances

118. Although acknowledging that the ordinary statutory ratio of the sentence imposed upon the offender will allow for a lengthy period of parole, the offender submits that there is a basis for a finding of special circumstances pursuant to s 44(2) or (2B) of the Crimes (Sentencing Procedure) Act. I accept that there is a basis for such a finding, but do not accept that the finding should be made.

119. Ms Lucas is of the view that the offender would benefit from assistance with rehabilitation and therapy directed to the disorders she has suggested the offender may suffer from. However, there is no basis in the evidence for a conclusion that the offender would take positive advantage of a longer than usual parole period to rehabilitate himself. The circumstances overall are not in my view particularly special such as to justify the finding: R v Fidow [2004] NSWCCA 172 at [22]. In any event, the ordinarily applicable parole period will provide a sufficient time to facilitate the offender’s reintegration into the community.

The Structure of Sentence

120. As the Crown properly conceded, whilst the foundational offence of robbery whilst armed with a dangerous weapon was separately charged to the offence of murder, it is appropriate for there to be complete concurrence between the sentences imposed for each offence.

121. The criminality of the offence of murder wholly subsumes that of the foundational offence, and the sentence imposed for it is capable of wholly reflecting the s 97(2) offence: Cayhadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27].

122. I consider an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act to be appropriate.

Commencement Date

123. The Crown argues that there is no reason to commence the sentences for these matters any earlier than 3 April 2016, since until that date the offender was serving the non-parole period of a sentence imposed upon him for unrelated offences. The offender argues that his sentences should have at least a degree of concurrence with the earlier sentence.

124. Only the principle of totality could require any degree of concurrence between the sentences to be imposed for these matters, and the sentence the offender was serving between his arrest in July 2015 and the expiration of the non-parole period in 2016. There is no commonality between the offences, and the fact that the offender was subject to conditional liberty for some of them at the time of Mr Parry’s murder would tend to suggest concurrency is inappropriate.

125. Of most significance is that the earlier sentence was very modest. My concern is that to backdate the sentence for these offences to a date prior to 3 April 2016 is to effectively reduce an already lenient sentence to one that would completely fail to reflect the gravity of the crimes. The length of the earlier sentence is so short that there can be no real concern about the totality of sentence being excessive to the totality of criminality. I propose to commence the present sentences on 3 April 2016.

Sentence

126. The offender is convicted of the offences of murder, and robbery whilst armed with a dangerous weapon.

127. For those offences the offender is sentenced to an aggregate term of imprisonment of 26 years to date from 3 April 2016 and expiring on 2 April 2042. I specify a non-parole period of 19 years and 6 months, expiring on 2 October 2035.

128. The sentences that would have been imposed had separate sentences been fixed are:

1. Murder: 26 years imprisonment;

2. Robbery whilst armed with a dangerous weapon: 8 years imprisonment.

129. The offender is advised that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him.

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Decision last updated: 19 February 2018