R v Rae (No 2)

[2024] NSWSC 713

Supreme Court

New South Wales

Medium Neutral Citation:

R v Rae (No 2) [2024] NSWSC 713

Hearing dates:

11 June 2024

Date of orders:

13 June 2024

Decision date:

13 June 2024

Jurisdiction:

Common Law

Before:

N Adams J

Decision:

For the offence of manslaughter, Michael Rae I convict you and sentence you to:

(1) Imprisonment for a term of 9 years to commence on 1 August 2023 and expire on 31 July 2032.

(2) The non-parole period is 5 years and 9 months commencing on 1 August 2023 and expiring on 30 April 2029. The offender will be eligible for parole on 30 April 2029.

I note that the effective total head sentence is 11 years from 1 August 2021 until 31 July 2032 and the effective non-parole period is 7 years and 9 months to expire on 30 April 2029.

(3) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are requested to advise him of the implications of that Act to him.

Catchwords:

SENTENCE – Manslaughter – unlawful and dangerous act – accidental shooting – late guilty plea – extensive criminal history – aggravating factor of committing offence whilst on parole – much of offender’s adult life spent in custody – offence committed whilst offender on parole – genuine remorse established – difficult childhood with family mental health issues – both parents committed suicide – moral culpability reduced – history of illicit substance abuse – totality principle

Legislation Cited:

Crimes Act 1900 (NSW), s 18(1)(b)

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

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25E(3), 44(2)

Cases Cited:

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

Markarian v R (2005) 228 CLR 357; [2005] HCA 25

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Dungay v R [2020] NSWCCA 209

Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29

Harris v R [2023] NSWCCA 44

Huynh v R [2024] NSWCCA 61

Lloyd v R [2022] NSWCCA 18

Paterson v R [2021] NSWCCA 273

R v Abbas [2014] NSWCCA 188

R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep)

R v Carberry (No 5) [2023] NSWSC 523

R v Forbes [2004] NSWSC 421

R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1

R v Millwood [2012] NSWCCA 2

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54

R v Pennisi [2001] NSWSC 461

R v Rae [2013] NSWCCA 9

R v Van Oosterum [2004] NSWSC 532

Category:

Sentence

Parties:

Rex (Crown)
Michael Rae (Offender)

Representation:

Counsel:
L Carr SC/M Coates (Crown)
P Rosser KC (Offender)

Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Mandy Hull & Associates (Offender)

File Number(s):

2021/219124

Publication restriction:

Orders made under Court Suppression and Non-publication Orders Act 2010 (NSW) on 9 April 2024.

REMARKS ON SENTENCE

1. On 22 July 2021, Michael Thomas Rae shot Wesley Prentice and killed him during an argument over a debt. He fled the scene and was apprehended on 1 August 2021 at which time he was charged with murder. Although he was found to be in possession of a shortened firearm at the time of his arrest, that was not the firearm used to kill Mr Prentice. The firearm that killed Mr Prentice has never been found.

2. On 8 April 2024, Mr Rae entered a plea of guilty to the unlawful killing of Mr Prentice. The plea was accepted in full discharge of the indictment on the basis of manslaughter by a dangerous and unlawful act. Although the plea was entered on the day when his trial was due to commence before me, it is common ground that his plea was accepted by the Crown two weeks prior to that, and he is entitled to a 10% discount on sentence for that plea. [1]

   1. Crimes (Sentencing Procedure) Act 1999 (NSW) s 25E(3).

3. At the time of the shooting, the offender was 35 years old. He is now 38 years old. He has a lengthy criminal history which includes previous firearms offences. He also has a complex subjective case to which I will return.

4. My role in sentencing the offender is to identify and consider all factors relevant to the sentence, both objective and subjective, and ultimately make a value judgment as to what is the appropriate sentence given all the factors in the case. [2]

   2. Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51].

Proceedings on sentence

5. At the proceedings on sentence on 11 June 2024 the Crown tendered the Crown bundle which comprised a large number of documents. In addition to the Agreed Facts, criminal history and custodial history the Crown also tendered documents from the State Parole Authority from 17 January 2021 (when the offender was last released on parole) to the present. In addition, the Crown tendered Facts and sentencing remarks in relation to the most significant of the offender’s previous matters. I shall consider that material further below. A victim impact statement from the deceased’s sister was tendered as well and read and I shall also refer to that later in these reasons.

6. The offender relied on two expert reports from 2019 prepared in relation to a previous matter: the report of Dr Gerald Chew, forensic psychiatrist, dated 5 April 2019 and the report of Dr Derek Gilligan, forensic psychologist, dated 28 February 2019. In addition, he relied on a reference from the Industries Supervisor at Clarence Correctional Centre and a handwritten letter of remorse.

7. The offender did not give evidence on sentence nor call any witnesses.

8. Both senior counsel for the Crown and the offender provided helpful written submissions on sentence which were supplemented orally at the proceedings on sentence.

Agreed Facts

9. Lengthy Agreed Facts were tendered which included details of the events in the days leading up to the shooting. [3] I shall briefly summarise that portion of the facts before extracting the facts pertaining to the circumstances of the shooting in full.

   3. On 9 April 2024, I made a number of non-publication orders in relation to some of the eyewitnesses to the shooting. They will be referred to by those pseudonyms in these reasons.

10. On 24 June 2021, the deceased (then aged 40 years) was released from custody. He was a regular user of illicit drugs, particularly methylamphetamine. He apparently owed the offender money from a time prior to entering custody.

11. As at July 2021, the offender was involved in the supply of illicit drugs. He had been released from custody on 21 January 2021 and was on parole at that time. He resided with his partner Jessica Wright.

12. Witness D (who is female) was a street level dealer of methylamphetamine who knew the offender because she purchased her supply of methylamphetamine from him. She resided at that time in a unit in a Department of Housing building on Darby St, Cooks Hill with her three sons Witness F (Aged 16), Witness E (aged 18) and an eight-year-old.

13. Witness D also knew the deceased as he was the former boyfriend of her neighbour. Witness D had helped the neighbour with a health issue and when the deceased was released from custody, he attended Witness D's residence to thank her for this. Over the next month he purchased methylamphetamine from Witness D on two occasions.

14. On the evening of 21 July 2021, the offender drove to Sydney to purchase illicit drugs and on his return, he was pulled over by police for speeding. Although he was cautioned and allowed to drive away, he became convinced that he was under surveillance and that his premises might soon be searched. He subsequently contacted Witness D to request her assistance. Witness B, who is a friend of Witness D, was with her at the time.

15. Although there was an initial plan to meet in Wyong, that plan was abandoned. The offender instead directed Witness D to attend his residence and collect items from his partner, Ms Wright. The offender also spoke to Ms Wright and told her to give several items to Witness D for safekeeping. When Witness D attended the offender's residence (with Witness B and another woman), Ms Wright handed her a Coles shopping bag containing phones, a set of scales and other drug related items. She then removed a square package from the roof, placed it in a shopping bag and handed it to Witness D. The square package contained the firearm that would later be used by the offender to shoot the deceased. The items were driven to the home of another man, Gavin Brown, for safekeeping.

16. Later, Witness B drove to Brown’s residence and collected Brown along with the two bags that had been left with him and they returned to Witness D’s unit where the offender was. Brown handed the two bags to the offender inside Witness D’s unit.

17. The Agreed Facts go on to describe a number of events which occurred during the morning of 22 July 2021 at Witness D’s residence from when the offender arrived until the deceased attended the unit. The order in which these events occurred is not clear. Those events were:

1. The offender, Witness D and Witness B consumed illicit drugs. The offender injected heroin and methylamphetamine, Witness D smoked methylamphetamine and Witness B injected methylamphetamine;

2. The offender, Witness D and Witness B did not sleep during the evening of 21 July 2021 nor anytime during the morning on 22 July 2021;

3. Shortly before 8am, the offender and Witness B took Witness D’s youngest son to a nearby cafe to purchase breakfast before he caught the bus to school;

4. The offender, whilst in the loungeroom, was seen to be in possession of the firearm that had been in the package that was retrieved from the roof cavity of the offender's residence. A witness described the firearm as a pistol;

5. The offender asked Witness D about the CCTV camera which covered the front door to the unit. He also asked whether there were other cameras in Witness D's residence. Witness D turned off the CCTV camera using the app on her phone and showed the offender that she had turned it off. The CCTV camera remained in position on the wall outside the unit;

6. At some point during the morning, the offender had a conversation with Witness D and Brown. The offender asked them if they knew the deceased. Witness D confirmed that she did know him. The offender said, "The cunt owes me money," referring to the deceased.

18. At about 12.20pm, Ms Wright arrived at Witness D’s unit. At 12.34pm, Brown left Witness D’s residence. At 12.36pm, Witness B left Witness D’s residence to purchase drinks for the occupants. Witness A (another friend of Witness D) was also at the premises at that time.

19. At one stage, Witness A and Witness D were in Witness D’s bedroom. Witness E was in his bedroom and Witness F was in the bathroom taking a shower. The offender and Ms Wright were together on the balcony off the loungeroom.

20. Between 12.37pm and 12.39pm the deceased entered Witness D’s unit. He told Witness D that he was there to purchase a “stick” of cannabis from her son, Witness E. The deceased walked down the hallway towards Witness E’s bedroom.

21. The following account is taken directly from the Agreed Facts:

“24. Meanwhile, Witness D went to the balcony and told the offender, ‘Wes is here.’ Witness D said to the offender that she did not want any dramas. The offender replied to the effect, ‘[t]here won’t be any dramas. I just want to talk to him.’ The offender walked into the loungeroom and headed down the hallway towards Witness E’s bedroom. Witness D returned to her bedroom.

25. Before Witness E had finished weighing up the cannabis leaf, the offender stood in the doorway to Witness E’s bedroom. The offender said to the deceased, ‘What are you doing cunt, I haven't seen you in a while. Where’s my money? Have you got my money? Come talk out here.’

26. The offender and deceased then walked down the hallway towards the loungeroom. Witness E could not see into the hallway as his door was covered by a green curtain.

27. Neither Witness A, D nor E saw what occurred in the hallway or loungeroom between the offender and the deceased. However, they all agree that there was a discussion between the offender and the deceased about why he had not paid him money that was owed. The deceased explained that he had not been able to settle the debt because he had been in custody. By the time they entered the loungeroom the conversation had turned into a heated argument with witnesses describing hearing raised voices.

28. Specifically, Witness D states that she heard the following conversation:

Offender:   ‘Where is the fucking money you owe me?’

Deceased:   ‘I went to gaol, sorry bro.’

Offender:   ‘You haven’t come and seen me. How long have you been out?’

28. Witness A states she heard the following exchange:

Offender:   ‘Where’s my money you owe me?’

Deceased:   ‘I just got out of gaol, I haven’t had time.’

30. Witness E says he heard the following conversation:

Deceased:   ‘Look I’ve been in gaol. What do you expect me to do?’

Offender:   ‘So what if you have been in goal. You could have still contacted me.’

31. When the offender and deceased entered the loungeroom, Ms Wright was seated on the couch in the loungeroom.

32. The offender produced the firearm from the waist band of his pants, showing it to the deceased. The firearm was loaded. Two witnesses describe hearing reference to ‘shooting’ about 30 seconds after the verbal argument commenced.

Witness D describes hearing the deceased say to the offender, ‘What are you going to do, shoot me?’

Witness E describes hearing the following exchange:

Offender:   ‘I should shoot you right fucking now cunt.’

Deceased:   ‘If you’re going to shoot me, go on and do it cunt.’

33. The offender and the deceased then became engaged in a physical altercation in the loungeroom. The firearm was in the offender's hand at the time.

34. Witness D reported that she heard what sounded to her to be punches. Witness E also reported hearing what sounded to be punches connecting.

35. Witness B entered the unit through the front door and observed the offender and the deceased struggling. She described what she saw in the following terms:

(a) The offender and the deceased were about four feet inside the loungeroom from the front door.

(b) The offender and deceased were facing each other, with the deceased’s back to the front door and the offender's back to the hallway.

(c) The offender and deceased were ‘grappling’ whilst standing in an upright position facing each other and chest-to-chest. Their torsos were touching.

(d) The deceased had the offender in a ‘bear hug’.

(e) Due to the deceased and offender being pressed together chest-to-chest, Witness B could not see the offender’s hands or the firearm, but at that time the offender had the firearm in his right hand during the struggle.

36. Witness B placed a hand on the offender’s left shoulder and the deceased's right shoulder and pulled them apart, pulling the deceased towards the front door and the offender towards the hallway. This action by Witness B created a gap between the offender and deceased’s chests.

37. As Witness B pulled the two men apart the firearm discharged.

38. The bullet from the firearm entered the left side of the deceased’s chest. The bullet passed through the deceased’s chest wall, between his ribs, through the pericardium, through the right ventricle of the heart, the pulmonary valve, the left main pulmonary artery at the bifurcation of the left main bronchus and the deceased’s oesophagus. There was no exit wound. In summary, the tract of the projectile was front to back, left to right and near horizontal.

39. The ballistics expert later opined that ‘The muzzle of the firearm was in contact with the left upper chest of the deceased at the time of discharge.’

40. Immediately after the firearm discharged, Witness B made the following observations of the offender:

(a) The firearm was between the offender and deceased’s chests, with the barrel facing the deceased and held at chest level.

(b) The offender was holding the firearm, being the pistol, in his right hand.

(c) The offender's arm was ‘squished up against (his) body’, by which she meant the offender's arm was not extended.

41. In relation to the deceased, Witness B states that she did not see any items in the deceased's hands immediately after the discharge of the firearm.

It is accepted by the parties that the offender is liable for unlawfully killing the deceased on the basis that the following actions by the offender were unlawful and dangerous, namely:

(a) Having in his possession a loaded firearm;

(b) Presenting the loaded firearm in the context of his being engaged in a heated argument with the deceased about the repayment of a debt; and,

(c) Having his finger on the trigger of the pistol during the physical struggle with the deceased.

Events immediately after the shooting

42. Witness D and Witness E entered the loungeroom, and along with Witness B they yelled at the offender for shooting the deceased. Witness D yelled, ‘What the fuck, Mick?’ The offender said to Witness D, ‘I’m sorry.’

44. The offender then put the firearm in his bag.

45. Wright said to the offender, ‘Mick, we’ve got to go.’ The offender and Wright left Witness D's unit, taking the two shopping bags with them. Once outside, the offender and Wright entered the offender's vehicle and drove away from the scene.

46. Back in the unit, Witness A picked up her jacket and shoes and left the unit, stepping over the deceased as she left.

47. Witness F had come out of the bathroom to see what was happening. Before Witness F could observe the deceased, Witness E picked up his brother and carried him from the unit, taking him to a neighbour's residence.

48. Meanwhile, Witnesses B and D removed and destroyed the CCTV camera before calling 000.

49. Witness E returned to the unit to collect and dispose of his cannabis leaf, before leaving the unit again.”

22. At 12.53pm, the first police officers arrived on scene. They cleared the unit, removed witnesses B and D from the unit and commenced CPR on the deceased. At 12.58pm, paramedics arrived at the unit and began to treat the deceased. At 1.12pm, a staff specialist in retrieval and prehospital medicine attended. At 1.30pm, the deceased was declared dead.

23. A crime scene was declared, and forensic officers attended. Tape lifts established that the offender’s DNA was on the back of both of the deceased’s hands.

24. After leaving Darby Street, Ms Wright drove the offender to the Windale area, and then went to work.

25. On 23 July 2021, the offender attended the home of Ms Wright’s cousin and her partner. The offender told them that he “had to get out of Newy” and said, “I think I am on the run.” The offender was observed to be pacing, speaking rapidly and thinking tangentially. After having a shower, the offender stated that he was going to Port Macquarie to find somewhere to stay.

26. Around midday on 26 July 2021, the offender and Ms Wright attended a Holiday Park at Nambucca Heads and enquired about renting a holiday unit, before hiring a cabin for two nights at the Big 4 Holiday Park.

27. Around 3.30pm on 29 July 2021, Ms Wright booked a cabin for two nights at the lngenia Holiday Park at Bonny Hills for the offender and her children.

28. At 5pm on 1 August 2021, police attended the lngenia Holiday Park and arrested the offender at a nearby playground with Ms Wright's son. The offender was carrying a backpack at the time. He told police that there was a firearm in the bag. Police searched the bag and located the loaded shortened firearm, to which I have already referred.

Factual issues

29. Senior counsel for the offender submitted that I could make three mitigating findings based on available inferences from the Agreed Facts.

30. First, he submitted that it would be open for me to find that the deceased started the physical fight preceding the shooting on the basis that it was not plausible that the offender, who was armed at the time, would do so. He relied on the observations of Hulme J, extracted by the Court of Criminal Appeal (“CCA”) in R v Forbes [4] concerning a similar submission that “the way in which the prisoner says he was attacked also strikes me as unlikely. It is impossible to believe that the deceased, having gone to the trouble of loading the rifle, would then have charged at the prisoner with it. To do so is not to use the bullets inserted, not to use the rifle’s inherent lethal capacity and capacity to control by fear, but to bring the weapon into the reach of the prisoner and the risk it could be taken from the deceased.”[5]

    4. [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [113].

    5. R v Forbes [2004] NSWSC 421 at [65].

29. Secondly, he submitted that it would be open for me to find that, given the firearm was only discharged at the point at which Witness B forced the offender and the deceased apart, it was that action which inadvertently resulted in the discharge of the pistol.

30. Thirdly, he submitted that it would be open for me to find that the deceased tried to get the pistol away from the offender given that his DNA was found on the back of the deceased’s hands.

31. In resolving these issues, any finding favourable to the offender must be established on the balance of probabilities. [6] If I am unable to find facts to this standard, I do not propose to do so. [7]

    6. R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ).

    7. Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64] (per French CJ, Bell, Keane and Nettle JJ).

32. In relation to the first of these three matters, I am not satisfied that I can make a finding either way. It is to be accepted that it is somewhat unlikely that a person holding a loaded firearm would start a physical brawl with the person he is arguing with. It is also possible that a person may try to disarm an opponent who is wielding a gun. But in the absence of any direct evidence from the eyewitnesses as to who started the physical fight, I am unable to make a finding on the balance of probabilities. The fact remains that it was the offender who started the verbal fight, and it was he who was armed with the loaded pistol.

33. As to the second matter, there is no suggestion that the shooting was intentional – if it had been, the offender would be guilty of murder. The description of the shooting by the eyewitnesses is consistent with the movement caused by the offender and the deceased being separated accidentally causing the pistol to discharge. I propose to sentence the offender on that basis.

34. As for the fact that the offender’s DNA is on the back of the deceased’s hands, that is consistent with a struggle, and it may well be that the deceased tried to get the gun off the offender at some stage, but there is insufficient material in the agreed facts to suggest that that is what caused the pistol to discharge. In any event, I am not satisfied that this would be a mitigating factor.

35. Having considered these submissions, I turn to consider the factors relevant to the assessment of the objective seriousness of the offending.

Objective seriousness

38. In assessing the objective seriousness in any manslaughter sentencing it is common to commence with the observations of Gleeson CJ in Blacklidge [8] that “… the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability”. It was also noted in Blacklidge that “the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case.”

    8. R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep).

39. The maximum penalty for manslaughter is 25 years imprisonment. [9] The offence has no applicable standard non-parole period for the reasons noted in Blacklidge.

    9. Crimes Act 1900 (NSW) s 18(1)(b).

40. The most serious aspect of the offender’s conduct is that he was in possession of a loaded pistol prior to the deceased arriving at the unit. When he learned that the deceased was in the unit, he followed him to a bedroom and confronted him about a debt whilst armed with a loaded pistol. The two men then had a heated argument in the loungeroom. The offender produced a loaded pistol from the waistband of his pants and showed it to the offender during the verbal fight. This was a very serious escalation of the confrontation especially given that he was then heard to say, “I should shoot you right fucking now cunt.”

41. It was common ground that the offender must have had his finger on the trigger during the struggle and at the time of discharge. The muzzle of the firearm was in contact with the left upper chest of the deceased at that time. Given the track of the bullet, the pistol must have been close to a 90-degree angle to the chest of the deceased at the time of impact. After the shooting, the offender fled the scene and did not render any assistance to the deceased. Clearly, wielding a loaded firearm during a physical struggle is a particularly dangerous act. The plea of guilty was accepted on the basis that the shooting was accidental rather than intentional. Although the firearm was most likely discharged as a result of Witness B’s intervention, it would be pure speculation to suggest that had she not intervened the deceased and the offender would have simply ended their fight.

42. Neither the Crown nor the offender sought to place the objective seriousness on any notional range. Such an approach was consistent with authority. [10] It was common ground that this was a serious example of a manslaughter given the involvement of a firearm and the initiation of the altercation by the offender.

    10. Paterson v R [2021] NSWCCA 273 (“Paterson”).

43. I propose to sentence the offender on the basis that this is a serious example of manslaughter by dangerous and unlawful act but certainly not in the “worst category”.

Victim impact statement

44. The Crown tendered a victim impact statement from Mr Prentice’s sister, Alicia Prentice, which she read to the court by way of AVL. She described her younger brother as kind and loving with a big heart, who loved being a father to his son Joey whom she described as “his identical twin”. She also described him as someone who was full of life. She told the court how she misses his smile, the way his face would light up and being able to talk to him. He will forever be in her heart.

45. She described how his death was the beginning of her life “being turned upside down” where in the span of 12 months she lost not only him but also her mother and her two uncles. She also described how her brother’s death has impacted her in that she has to turn off the TV if there is news coverage about shootings. She cannot handle any discussions about crimes involving guns and violence and told the court that the world feels “scary and unsafe” for her now and she has trouble trusting other people. She concluded her letter by stating that it is important to her to forgive the offender in order to gain closure.

46. As is often observed in sentencing matters involving the death of a person, no sentence that I might impose could adequately reflect the loss of a dear family member and no sentence could possibly assuage the grief of those who were close to him. The court extends its sincere condolences to the family and friends of Wesley Prentice.

Mr Rae’s subjective case

47. Mr Rae, who is now 39 years old, grew up in Newcastle. He is a middle child with both an older and younger brother. Tragically, both of his parents suffered from mental illness while he was growing up; his father from bipolar disorder and his mother from depression. The offender described his childhood and early family life as being difficult due to his father’s mental health issues. His father was “in and out of” a psychiatric hospital. He reported that at times his father would be “really good, loving and caring” yet at other times he was prone to outbursts and would “lash out” towards him and his brothers. He described how “it was really scary” when his father would beat him with anything including belts, brushes, and one time a piece of wood. Despite that, he reported that he loved his father and felt close to him.

48. The offender described primary school as a good experience and recalled that he was “smart, achieved good grades, had lot of friends, played football and got along well with teachers”. Despite this, he had trouble concentrating and was fidgety and somewhat disruptive. He reported being assessed for attention deficit disorder (“ADD”) and attention hyperactivity disorder (“ADHD”) but his ADHD diagnosis was never definitive.

49. He also reported having a generally good experience in high school up until the age of 15. Tragically, when he was 15 years old and in Year 9 his father committed suicide. The offender described how this led him to go “off the rails”, that he “couldn’t back down to bullies” and he became involved in fighting. He described himself as “an angry young kid who was angry at the world”.

50. The offender described how his family life became even more difficult after his father’s death. His mother became severely depressed and suicidal to the point of there being “a struggle every day to keep her alive”. On one occasion, he had to “talk her off a cliff”. He reported that due to her mental health deterioration she could barely function and so there was rarely food in the fridge and “the house was a mess”. He did not receive any help from either his mother or his father’s families. He and his older brother were the ones who provided assistance to their mother. They had to get her out of bed and shower her and take care of all domestic responsibilities. They also had to look after their younger brother.

51. The offender became so preoccupied with his mother’s mental health that he left school halfway through Year 10 so that he could be her “suicide watch”. He commenced work as a concreter.

52. The offender was in a relationship with his first girlfriend from the ages of 16 to 18 years. He describes it as “really good”, though they both used cannabis. Tragically, his partner’s father, who he was close to, was killed in a motorcycle accident 12 months into their relationship. The offender started feeling like he was cursed and eventually the relationship broke down.

53. When the offender was 20 years old, his mother committed suicide. He reported that once his mother died “everything imploded”. His behaviour became erratic and he suffered mood disturbances, substance abuse and poor lifestyle choices. Regrettably, what followed is years of drug misuse, criminal offending and incarceration.

54. From the age of 20 until his mid 20s the offender was involved in a relationship with a woman named Tegan, with whom he has a son who is now about 13 years old. The couple split after he was incarcerated in July 2010. It was this partner who introduced him to heroin. She has prevented the offender from seeing his son at times which has been a stressor for him.

Drug and alcohol history

55. The offender first began using cannabis after his father died which lasted until he was approximately 17 years old. He reported that he did not find it difficult to stop using cannabis once he made up his mind to do so.

56. Following the death of his mother, he began using heroin, daily at times, having been introduced to it by Tegan. He described heroin use as both “a blessing and a curse” because he may have committed suicide without it. Though he struggled with a heroin addiction, he managed to cease using heroin when he went on a methadone program in 2008. He also completed a year-long Intensive Drug and Alcohol Treatment Program (“IDAAT”) in 2010 but relapsed into heroin use in 2018 when, for about eight months prior to his incarceration, he was using one gram of heroin daily and methamphetamine twice a week.

57. The offender reported that he has never had a drinking problem.

58. As the Agreed Facts disclose, the offender had consumed both methamphetamine and heroin prior to the shooting of the deceased and was selling drugs at that time no doubt to fund his own addiction.

Prior criminal history

59. The applicant’s criminal offending did not commence until 2005 when he was 19 years old. Regrettably, since then he has committed a number of serious offences, often involving firearms.

60. His first custodial sentence was imposed on 10 October 2007 when he was sentenced at Newcastle Local Court for various offences including being in possession of an unauthorised prohibited firearm and common assault. He received a sentence of 12 months with a non-parole period of 9 months.

61. On 26 August 2011, the offender was sentenced in the District Court by Robison DCJ in relation to a planned break and enter of a veterinary practice, the possession of a shortened firearm on arrest and the shooting of a man in the thigh with a different firearm during a confrontation. The sentence imposed on him was increased by the CCA following a successful Crown appeal. [11] He was ultimately sentenced to an aggregate sentence of 7 years and 7 months imprisonment to date from 16 July 2010 and expire on 15 February 2018 with an aggregate non-parole period of 5 years and 5 months to date from 16 July 2010 and expire on 15 December 2015. In increasing the sentence, Button J observed that the respondent was making “good progress in custody” and was “obviously a person of significant potential.”[12]

    11. R v Rae [2013] NSWCCA 9.

    12. Ibid at [65].

62. After being released on parole for those offences on 15 December 2015 (he was to remain on parole until 15 December 2018), and while still on parole he committed further offences on 19 January 2017 including take and drive conveyance, police pursuit and aggravated break and enter in company. As a result, his parole was revoked from that date until 27 March 2017 when he was granted bail and his parole reinstated. His parole was revoked again two weeks later, and he was returned to custody on 8 April 2017 where he remained until he was sentenced in the Maitland Local Court on 18 September 2017 to 18 months imprisonment.

63. Whilst in custody for those offences he was charged with being an accessory before the fact to an aggravated break and enter in company. In 2016, when he was on parole, he and his two brothers had stolen 39 firearms from a storage unit. He was sentenced by Acting Judge Berman SC on 2 May 2019 to imprisonment of 4 years and 6 months to date from 18 January 2018 with a non-parole period of 3 years to expire on 17 January 2021.

64. In sentencing the offender, Judge Berman observed that there were “indications that if Mr Rae wants to he can achieve a great deal in his life”. His Honour noted the evidence that the offender had completed the University of Southern Queensland tertiary preparation program in 2012 and received high distinctions in two mathematics subjects. He had also been accepted to study a Bachelor of Engineering with Honours in the University of Southern Queensland. Judge Berman went on to observe, “So, should Mr Rae want to, he is capable of putting his criminal past behind him and achieving a great deal in the future... If he stops using drugs it is likely that he will be able to resume such things as his education and be proud of what he has achieved.”

65. The offender was released on 17 January 2021 before being arrested again on 1 August 2021 for the present offence. The offender was sentenced by Ellis DCJ on 19 May 2023 in relation to possession of the firearm found on him at the time of his arrest. I will return to that sentence when considering the application of the totality principle in this matter.

66. Overall, the offender’s custodial history shows that after being dealt with in 2005 and 2006 he was in custody for periods in 2007, 2008 and 2009. He was then in custody from 17 July 2010 until 15 December 2015 at which time he was paroled. He was again in custody from 20 January 2017 until 27 March 2017 at which time he was paroled and bailed. He was then in custody from 8 April 2017 until 17 January 2021 at which time he was paroled. He has been in custody since 1 August 2021. On my calculations, he has been in custody for 87.9 % percent of his life since 17 July 2010.

67. The Crown submitted that the offender’s criminal history does not entitle him to any leniency and that the protection of the community is a significant factor in his sentencing. It was submitted that the offender’s history of violence, and his association with drugs and firearms and pattern of consistent re-offending establishes the likelihood of future offending with a further aggravating factor that he was on parole at the time of commission of this offence.

68. There is no doubt that the most troubling feature of the offender’s history is his repeated association with firearms.

69. It was conceded on behalf of the offender that his criminal record does not entitle him to leniency but that there is a very high likelihood of institutionalisation. I accept this submission.

Mental health

70. The offender was assessed for ADHD as a child but the diagnosis was apparently never definitive. Significantly, after his father’s death, he was diagnosed with bipolar disorder when he was 15 years old. He was prescribed lithium but did not stay on it for long because he did not like feeling “cloudy in the head”. He was also trialled on lamictal, epilim, aropax and avanza for mood symptoms but it is unclear what treatment he has had over the years.

71. In 2019, he was assessed by Dr Chew as suffering from bipolar affective disorder with a significant substance use disorder but the evidence is that the offender was not on any medications at the time of that assessment in 2019.

72. Similarly, Dr Gilligan noted that the offender suffered from anxiety and depression and mild to moderate bipolar disorder, opining that his early behavioural disturbance and ADHD like symptoms were likely prodromal symptoms for a bipolar disorder the symptoms of which were exacerbated by his father’s suicide. The Crown did not challenge the diagnosis of bipolar disorder. Dr Gilligan noted:

“He said he was diagnosed with bipolar disorder at 15 after his father died and was prescribed lithium (a mood stabiliser commonly used for bipolar disorder). Michael reported however he hated the blood tests and didn’t like feeling “cloudy in the head” and did not remain on medication for long.

Michael does not agree with his diagnosis and considered his emotional lability and behavioural instability and disturbance at the time to be a normal response to his father’s death. Michael however nominated a number of persistent symptoms consistent with bipolar disorder including a protracted mood disturbance, predominately depression, sleep disturbance, anger and irritability, impulsivity and inhibition including recklessly spending money on items he does not need, episodes of gambling and reckless sexual activity with women, which also support this diagnosis. Michael’s denial is indicative of his poor insight into what appears to be a mild to moderate bipolar disorder.”

73. In 2019, Judge Berman noted the following in relation to the offender “[The offender’s] father suffered from a severe mental illness, bipolar disorder. This is something which affects Mr Rae as well. Mr Rae’s father was impulsive and unpredictable and aggressive towards his children at times.” His Honour went on to note that whilst the offender has been diagnosed as suffering from a bipolar disorder, his counsel “disavowed any submission that this condition contributed to his offending behaviour.” His Honour noted that he was nonetheless “able to take into account that the offender will do his time in custody harder because of his psychiatric affliction.”

74. Similarly, in 2023, Ellis DCJ noted that psychiatrist Dr Chew had diagnosed the offender with bipolar disorder but also observed the opinion of Dr Gilligan that “Mr Rae does not necessarily agree with that diagnosis”.

75. The offender’s Pre-Release Report dated 2 November 2020 notes the offender’s “clearly detailed” mental health history including his diagnosis of ADHD and bipolar disorder. It was also noted that he has been prescribed a range of medications for treatment across his life. The report goes on in these terms:

“It is evident that Mr Rae’s ongoing struggles with his mental health have been largely untreated across his life. He reports to have remained inconsistent with his medication compliance and self-medicated with illicit substances. To his credit, Mr Rae has been able to display some insight into how his non-compliance with his treatment has negatively impacted on his life in terms of his substance use and offending behaviour. As highlighted below, he has verbalised his motivation to address this in order to change his offending behaviour.”

76. Significantly, the release report noted the recommendation from the psychiatrist that the offender “maintains compliance with mood stabilising medication, psychological therapy and continued abstinence” and that “it is considered imperative that Mr Rae’s mental health be closely monitored during his Parole period to reduce his risk of relapse and subsequent re-offence”. It was recommended that as a condition of his parole he should be referred to the “mental health intake line” and a co-existing disorder case worker for additional support with engaging with appropriate mental health and substance use service.

77. The offender was released on 17 January 2021 and committed the subject offence on 21 July 2021, seven months later whilst still being supervised under parole. In the breach of parole report dated 13 November 2020, following his arrest on 1 August 2021, it was noted that the offender’s response to supervision was considered satisfactory since his release from custody on 17 January 2021 with the management strategies focusing on addressing alcohol and drug negative associations and mental health issues but that “he was reluctant to engage with services citing his employment as a reason”.

78. Although the evidence concerning the offender’s diagnosis of bipolar disorder was uncontested in this matter, the evidence as to the management of it was unclear. There was nothing put before the court to suggest that upon his last release from custody the offender was in fact placed on any mental health care plan, prescribed any medication or otherwise treated in the community for his bipolar disorder. In other words, he remained untreated after his release. Although the breach report notes that the offender was reluctant to engage with mental health services, that is clearly because he does not believe that he suffers from a bipolar disorder when he clearly does. It is most regrettable that more was not able to be done in this regard.

79. The absence of any material put before the court regarding the offender’s mental health at the time of the offending means that it is not possible to identify any causal connection between his mental health and the commission of the offence. Neither the offender’s counsel nor the Crown submitted otherwise. The Agreed Facts describe the offender as pacing, speaking rapidly and thinking tangentially on 27 July 2021, shortly after the shooting. Such a description is consistent with symptoms of the offender’s bipolar disorder, but in the absence of any further evidence such a description could also apply to a person who is under the influence of methamphetamine, which the offender often was during that period.

80. Ultimately, the only submission made in relation to the offender’s mental health is that it is likely to render his time in custody more onerous and the Crown did not submit otherwise. [13]

    13. Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

Moral culpability

81. An assessment of an offender’s moral culpability extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the wrongfulness of their actions or control their conduct. [14]

    14. Paterson at [31].

82. One such factor relevant in Mr Rae’s case is his childhood of deprivation as held by the High Court in Bugmy v The Queen. [15] It was submitted on behalf of the offender that the emotional impact of the death of his parents and the consequences that followed give raise to such considerations. It was not suggested that there is a causative link to his current offending, but it was submitted that there does not need to be. [16] Similarly, the Crown submitted that the offender’s history provides support for such a finding but that the degree of amelioration should be modest.

    15. (2013) 249 CLR 571; [2013] HCA 37.

    16. Dungay v R [2020] NSWCCA 209 at [153]; Lloyd v R [2022] NSWCCA 18 at [27].

83. I have found the assessment of the offender’s moral culpability to be a difficult one. I have already recounted the circumstances of his childhood. To have both parents suffer from mental illness and then both die by suicide has undoubtedly had a profound effect on the offender. He is clearly intelligent and was doing well academically before his mother’s mental health led him to leave school during Year 10. If he had been able to remain at school, it seems he may have been able to pursue further study. Instead, he finished his HSC in custody in 2010 and was admitted entry at a tertiary level to study engineering. His introduction to heroin when his mother died by his then girlfriend meant that he now has an entrenched drug addiction. Despite numerous favourable reports as to his insight and desire to remain crime and drug free in the community he has had repeated lapses.

84. A further troubling aspect potentially relevant to the offender’s moral culpability is his bipolar diagnosis. As with many people diagnosed with it, he seems to be in denial about it. Although both parties submitted that his moral culpability could not be reduced on the basis of his mental health, his history is consistent with it having a significant impact on his behaviour in the past.

85. It is not uncommon for offenders to come before the court with a combination of a deprived childhood, mental illness and illicit drug addiction. It is difficult in some cases to unravel which of those three factors, if any, are potentially causative of the offending behaviour. The relevance of doing so is that whereas a deprived childhood and mental illness may reduce an offender’s moral culpability, drug addiction on its own usually does not. Although the offender’s untreated bipolar disorder alone (in relation to which he is in denial) is not sufficient to reduce his moral culpability, when combined with his profoundly deprived childhood (which led to his entrenched heroin addiction), it seems to me that it could. As Simpson J observed in R v Millwood:[17]

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”

17. [2012] NSWCCA 2 at [69].

86. Having carefully considered the matter, despite the absence of up to date expert evidence regarding the offender’s bipolar disorder and the complexity of the offender’s case generally, I do propose to reduce the offender’s moral culpability to some extent based largely on the principles in Bugmy.

Remorse

87. The offender provided a handwritten letter to the court dated 10 June 2024 expressing his remorse. It was tendered and not read aloud in court. Given its content, I consider it relevant to extract it as follows:

“Thank you for allowing me this time & space to have my thoughts & feelings heard.

Firstly & most importantly I wish to express my sincere sympathies & heartfelt apologies to the family & friends of the deceased, the victim, Mr Wesley Prentice. No words could ever take away the pain & loss of losing their loved one, but it is my hope that in taking responsibility for my role in the death of Mr Prentice & expressing my heartfelt apologies & regret, that it may, in some small way, alleviate some of the hurt & allow some sort of closure, upon were the slow healing process can begin. It devastates my conscience to own my role in such a senseless death. It is a weight I must bare, & bare I shall. Knowing all too well the wide rippling effects of family loss, all I can say is that I am so sorry to all those hurt by this.

I apologise not only to those directly impacted from this senseless death but the wider community as a whole. I have only just recently been able to have some insight as to how my offending has impacted the community, the fear & general unease it has caused, the economic impact in courts & law enforcement. Since being incarcerated I have finally sought & received treatment for my drug use that has long been at the heart of my offending. In this program I have found a hard fought sobriety that I cherish. My sobriety has given me a clarity of thought I have never known as well as a fierce determination to never be judged by a court of law again. I continually work towards being a better father to my children that are my life, a better partner to my fiance & a better member of society.

I hope in some small way these words of sorry & regret help the family & loved ones of Mr Prentice heal & find closure, & also give Her Honour some clearer insight as to who I am as a man & the efforts I make to reform.

Thank You Your Honour,

Michael Rae”

88. I am satisfied that the offender is genuinely remorseful.

Prospects for rehabilitation/Risk of re-offending

89. The offender’s senior counsel acknowledged the difficulty in suggesting that the offender has good prospects of rehabilitation, but he submitted that the offender’s achievements in custody indicate that he does have the personal resources to do so. Significantly, his custodial punishment record shows no punishments recorded since 1 August 2021 when he was returned to custody. This is to be contrasted with earlier periods of custody where he had numerous drug related breaches.

90. Before me on sentence was a letter from the offender’s “Industries Supervisor” at Clarence Correctional Centre. He stated that he has seen a lot of positive changes in the offender who has worked in the engineering workshop for the past two and half years. He has completed certificates in engineering, a forklift licence and a first aid course. He describes the offender as being a leader among his peers and as someone who is “extremely reliable and passionate about his work” and a “good mentor” for other inmates who are keen to learn engineering and welding skills.

91. Regrettably, the offender has few if any pro-social influences in the community. Dr Gilligan noted that he is not close with either of his brothers, one of whom is in gaol and the other of whom is in substance dependence rehabilitation. They were his co-offenders for the 2019 theft of the firearms. The offender reported that he writes to them approximately twice a year. He told Dr Gilligan that “it’s important to choose friends wisely now” and reported that he wanted to be friends with “good people”.

92. A striking feature of the offender’s history are the highly favourable reports prepared in relation to him over the years since 2010 and the difficulty the offender has had living up to them.

93. I have had regard to the absence of custodial punishments since he last came into custody, the glowing report from his supervisor and his handwritten letter. Although any prediction of his prospects of rehabilitation must be guarded, I am satisfied that if he was able to remain drug free and obtain treatment for his bipolar disorder it is still possible that he could turn his life around. Any assessment of his risk of reoffending must, given his history, be guarded but there are some small signs for optimism.

Comparative cases

94. The Crown drew me to seven comparative cases. No two cases are the same, but I have found the principles derived from four of those cases to be of particular assistance. They all concerned offenders being sentenced for a manslaughter by dangerous and unlawful act in which a firearm went off during a struggle. Some of those cases were more objectively serious and some of the other offenders had stronger subjective cases but I have found the principles derived from the following cases to be helpful: R v Forbes, [18] R v Pennisi, [19] R v Van Oosterum [20] and R v Abbas. [21]

    18. [2004] NSWSC 421

    19. [2001] NSWSC 461.

    20. [2004] NSWSC 532.

    21. [2014] NSWCCA 188.

Totality

95. Although the offender has been in custody since his arrest for this offence on 1 August 2021, he has only been in custody solely in relation to this offence since 1 February 2024.

96. The offender’s parole was revoked following his arrest for this offence effective from 1 August 2021. When he was sentenced for the possession of the shortened firearm by Ellis DCJ on 19 May 2023, his Honour commenced that sentence to commence on 1 February 2022 and the non-parole period to expire on 31 January 2024 which resulted in the non-parole period being served 50% concurrently with and 50% accumulated upon the period of revoked parole that the offender was directed to serve from 1 August 2021.

97. The offender submitted that a modest adjustment should be made so that his sentence commences on a date prior to 31 January 2024,[22] whereas the Crown submitted that the sentence I impose should commence on 31 January 2024. It was submitted that the offender’s pre-sentence custody has already been taken into account for another offence and that it should only be taken into account once. [23]

    22. R v Carberry (No 5) [2023] NSWSC 523.

    23. Huynh v R [2024] NSWCCA 61 at [19], [27].

98. I have considered these competing submissions. The application of the totality principle affords me a broad discretion as to when to commence the present sentence. It seems to me that had I been sentencing the offender for the possession of the firearm found at the time of his arrest for the present matter, it is likely that I would have imposed an aggregate sentence which would have included a degree of notional concurrence. I see no reason to impose wholly accumulative sentences simply because the matters were heard separately. Rather than commence the sentence from 1 February 2024, I propose to allow for six months concurrence with the sentence for firearms offence imposed by Ellis DCJ.

Special circumstances

99. Counsel for the offender submitted that the significant degree of accumulation arising from serving both the balance of parole and the sentence imposed by Ellis DCJ warrants a finding of special circumstances and a variation of the statutory ratio between the head sentence and the non-parole period. [24]

    24. Sentencing Act s 44(2).

100. The Crown ultimately accepted that, given he has been serving sentences since 1 August 2021 a variation to the statutory ratio would be required in order to achieve an overall ratio of 75% between the effective non-parole period and the head sentence which commenced on 1 August 2021.

101. The offender has been in custody for nearly three years since his arrest. There is authority for the proposition that this is a proper basis to make a finding of special circumstances in order to maintain a ratio of approximately 75% between the effective non-parole period and head sentence when that earlier time in custody is considered. [25] I propose to adopt that course. In doing so, I have rounded down some of the numbers and I have allowed some further reduction on the basis of his complex mental health issues, to which I have already referred. Accordingly, the ultimate ratio between the effective head sentence and the effective non-parole period is approximately 70%.

     25. Harris v R [2023] NSWCCA 44.

Conclusion

102. I have considered the objective seriousness of the offence, the aggravating factor that it was committed whilst on parole, the offender’s extensive criminal history, his traumatic childhood, his reduced moral culpability, his subjective case generally including his bipolar disorder, the principles derived from some comparable cases and the other findings I have already referred to, to arrive at what I consider to be an appropriate sentence.

Orders

103. Michael Rae, but for your plea of guilty, I would have imposed a sentence of 10 years imprisonment. Having regard to your early plea of guilty and applying a 10% discount to that sentence, the sentence I impose is reduced accordingly.

104. For the offence of manslaughter, Michael Rae I convict you and sentence you to:

1. Imprisonment for a term of 9 years to commence on 1 August 2023 and expire on 31 July 2032.

2. The non-parole period is 5 years and 9 months commencing on 1 August 2023 and expiring on 30 April 2029. The offender will be eligible for parole on 30 April 2029.

3. I note that the effective total head sentence is 11 years from 1 August 2021 until 31 July 2032 and the effective non-parole period is 7 years and 9 months to expire on 30 April 2029.

4. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offence of which he has been convicted. His legal representatives are requested to advise him of the implications of that Act to him.

*******

Endnotes

Decision last updated: 17 June 2024