R v Rolfe

[2017] NSWSC 1393

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

R v Rolfe [2017] NSWSC 1393

Hearing dates:

6 February 2017, 3 August 2017

Date of orders:

12 October 2017

Decision date:

12 October 2017

Jurisdiction:

Common Law - Criminal

Before:

Rothman J

Decision:

(1) Convictions recorded

 

(2) For the offence of murder, sentence imposed of non-parole period of 8 years’ and 6 months, commencing 23 April 2015 and concluding 22 October 2023, with a remainder of term of imprisonment of 4 years’ and 6 months, concluding 22 April 2028.

 

(3) For the offence of possession of firearm, taking into account the Form 1, sentence imposed of non-parole period of 5 years’ and 6 months, commencing 22 June 2018 and concluding 21 December 2023, with a remainder of term of imprisonment of 1 year and 10 months, concluding 21 October 2025.

 (4) First eligible for parole on 21 December 2023.

Catchwords:

CRIMINAL LAW – Sentencing – murder – joint criminal enterprise – parity with shooter – pleas of guilty and assistance to authorities of exceptional nature – discount awarded – possession of pistol with Form 1 for possess ammunition – totality principle – sentence imposed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 s 3A

Cases Cited:

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476

Category:

Sentence

Parties:

Regina (Crown)
Timothy Steven Rolfe (Offender)

Representation:

Counsel:
T Bailey (Crown)
T Evers (Offender)

  Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
Takchi & Associates (Offender)

File Number(s):

2015/00120363

Publication restriction:

NON-PUBLICATION ORDER RE IDENTIFICATION OF OFFENDER’S ACCOMMODATION OR LOCATION NON-PUBLICATION ORDER RE IDENTIFICATION OF WORK PREMISES, SCHOOL PREMISES OR HOME ADDRESS OF THE OFFENDER’S FAMILY

REMARKS ON SENTENCE

1. HIS HONOUR: On 6 February 2017, Timothy Steven Rolfe pleaded guilty to the charge of murder of Laurence Starling on 24 July 2014 on the basis of joint criminal enterprise. The sentencing has been delayed by the delay in sentencing his co-offender, Mr Weston (hereinafter “the co-offender”).

2. Mr Rolfe’s proceedings on sentence occurred on 8 August 2017. The plea occurred on, or just prior to, the commencement of the intended trial and is not an early plea. It is certainly not a plea at the earliest opportunity. However, Mr Rolfe gave evidence in the co-offender’s trial and is entitled to the benefit of that assistance. I will deal with that issue later.

3. I also now deal with a sentence for the possession of a firearm, with a Form 1 offence for ammunition possession.

Process of sentencing

4. The Court is required to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. It is necessary to assess the conduct of the offender, Mr Rolfe, to determine where, in that range of seriousness, this offence fits.

5. The Court must objectively assess the features of the offence and the circumstances of its commission, in order to determine whether it is in the category of a worst case, or lower down the scale of seriousness, within a notional range between the lowest level of culpability and the worst category of case.

6. The purpose in sentencing any offender is to resolve, what are often, conflicting sentencing objectives. In serious crimes, such as murder, punishment and public deterrence are important.

7. The provisions of s 3A of the Crimes (Sentencing Procedure) Act 1999 reflect the common law as to the purposes of sentencing, which include protection of society; deterrence of the offender and others tempted to offend; retribution and reform: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476.

8. While considerations of reform or rehabilitation of the offender may be significantly affected by the objective circumstances of the offence, they are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated. The capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender.

9. The process requires that each of the objective circumstances of the offence and each of the subjective circumstances of the offender, be given effect and synthesised, to achieve the purpose of sentencing already described.

10. Every murder is serious. Every murder involves the felonious taking of human life. The maximum sentence for murder is life imprisonment, which penalty is imposed in the worst category of murder. The legislature has also set a standard non-parole period of 20 years’ imprisonment. The standard non-parole period acts as a guidepost in the determination of an appropriate sentence and appropriate non-parole period.

11. In order to determine the objective seriousness of this offence, amongst those perceived as the most serious in view of society’s respect for the sanctity of human life, it is necessary to deal with the circumstances of the offence and some background facts leading up to the infliction of the fatal injuries.

Facts

12. This murder was a bikie killing. It is necessary to set out the background as the circumstances leading to the killing of Mr Starling. The facts are agreed and rely significantly on the statement of Mr Rolfe, which was confirmed in evidence in the co-offender’s trial.

13. Mr Starling, the deceased, was 29 years of age at the time of his murder. He owned a business that specialised in customising motorcycles (and other motor vehicles). Originally, the deceased began employment for “The Chopper Shop” owned by Mr Stuart Field and others.

14. Sometime thereafter Mr Field sold his interest in The Chopper Shop and he and the deceased started their own business at an adjacent industrial unit. The business specialised in custom motor vehicle modifications and was known by a similar name, being, “The Chop Shop”.

15. Notwithstanding the similarity in name there was no animosity between the operators of The Chopper Shop and the new business. In or about 2010, the deceased purchased Mr Field’s interest in The Chop Shop and became the sole owner.

16. In late 2013 or early 2014, the deceased acquired a custom-made motorcycle from Mr Field. The motorcycle was unique and had been constructed as part of a competition for a television show called “Biker Build-Off”. The construction of the motorcycle and its modifications had been carried out by the deceased and Mr Field at The Chopper Shop, during the time that they worked there. After acquiring the motorcycle, the deceased stored it at The Chop Shop and made further modifications to it.

17. Mr Field was involved in a long-running feud with Justin Donnelly, allegedly a high-ranking member of the Terrigal Chapter of The Rebels Outlaw Motorcycle Gang (“The Rebels”). Apparently, the dispute arose after Mr Field married Mr Donnelly’s ex-partner. How that gives rise to a dispute is not immediately apparent to any normal thinking person, but the evidence is that there was a dispute of that kind. Mr Donnelly warned Mr Field to stay away from Mr Donnelly’s ex-partner and Mr Donnelly’s son. Mr Field did not stay away.

18. Ultimately, Mr Donnelly, together with another member of the club, demanded Mr Field pay them $200,000 or they would shoot him.

19. In April 2014, Mr Field was arrested on unrelated serious drug matters. He remains imprisoned (or was at the time of the co-offender’s trial).

20. Mr Rolfe, together with his co-offender, were members of The Rebels. At the relevant time, they belonged to the Penrith Chapter of The Rebels.

21. Apparently, as a result of The Rebels’ incapacity to realise the debt said to be owed by Mr Field, they attended various locations on the Central Coast and seized assets which they believed were owned by Mr Field. In or about May and June 2014, Mr Donnelly and a number of his associates approached the deceased demanding that the custom-built motorcycle, which he had acquired from Mr Field, be given to Mr Donnelly. It seems that Mr Donnelly believed that the motorcycle belonged to Mr Field and therefore could be “seized” for the “debt”. Threats were made. The deceased delivered the motorcycle to Mr Donnelly.

22. Subsequent to the seizure of the motorcycle, the deceased made contact with an associate of Mr Field, who had connections with a rival motorcycle gang in order for them to facilitate the return of the deceased’s motorcycle. Those associates made contact with Mr Donnelly, albeit indirectly. The foregoing background is part of the agreed facts.

23. The next relevant circumstance that it is necessary to recite is that in early July 2014, the co-offender, approached Mr Rolfe about paying someone a visit on the Central Coast about a bike which The Rebels had taken or tried to take from the deceased. The deceased, it was said, was trying to get it back. The persons to whom the deceased had gone in order to obtain the return of the bike were described as “Lebos”, and were, it is said, part of a Middle Eastern Gang.

24. The co-offender told Mr Rolfe that they were going to go to the Central Coast to give the deceased a “touch-up” and, if they could, collect what they could to the value of the bike. Mr Rolfe understood a “touch-up” to include the infliction of grievous bodily harm.

25. Mr Rolfe’s statement is in the following terms:

“[4] In early July 2014, John Weston came to me. I am not sure where we were when we had the conversation. John told me, “The boys want us to pay a visit to someone”. I believe when he said the boys, he meant high ranking members of the Rebels.

I asked him, ‘What is this for?’

He said, ‘A bloke up the coast had one of our bikes, the boys went and took the bike or tried to take the bike, he organised some Lebbo’s to pay a visit to some of our boys in retaliation.’

I asked John what he wanted me to do. John told me that I had to organise cars. He said that we were going to go up there to see Laurie, the owner of The Chop Shop, to give him a touch up and take what we could to the value of the bike, if possible.”

26. Part of the background is the relationship between members of The Rebels. Mr Rolfe was a new member (but not a nominee). His co-offender was, at the relevant time, a senior member of The Rebels chapter and was Sergeant-at-Arms (being one of the three major officers of The Rebels chapter).

27. The remaining facts can be stated shortly. There were four visits to the Central Coast in order to plan or execute the “touch-up”. As can be seen from the foregoing discussion between Mr Rolfe and his co-offender, Mr Rolfe organised the cars and a third person for one or more of the visits.

28. Most relevantly on the fourth trip, on 24 July 2014, Mr Rolfe, the co-offender and a third person drove in a silver hatchback, hired by Mr Rolfe, to The Chop Shop and parked up the road. Mr Rolfe was carrying a .25 calibre gun, the size of his hand, possibly 10 cm or a little bit more. He had borrowed it from a friend. It was loaded with six bullets but, according to Mr Rolfe, he was not planning to use it.

29. Mr Rolfe and the co-offender had balaclavas and gloves. The co-offender was carrying a .22 calibre pistol and the third person was carrying a knife.

30. The three of them parked the car in the same place as they had parked on previous occasions and noticed the deceased inside The Chop Shop. He had been working that afternoon on the modification to a front suspension system that was required to be installed that week.

31. Mr Rolfe and the co-offender were talking about what they were going to do and, as they were speaking, the deceased reversed the car out of The Chop Shop.

32. The deceased alighted his car in order to lock the gate to The Chop Shop. Mr Rolfe asked the co-offender if he wanted him to follow the deceased, but the third person and the co-offender jumped out of the car and ran across the road. Mr Rolfe jumped out of the car and dropped his gun. As he looked up, the deceased was standing at the fence of The Chop Shop with his hands up. The co-offender and the third person were about 6 to 8 feet away from the deceased at the top of the driveway. The co-offender pulled out his .22 calibre pistol and shot the deceased twice in the stomach and groin area.

33. One of those shots was fatal. The agreement between, at least, Mr Rolfe and the co-offender was an agreement to inflict grievous bodily harm, the implementation of which caused the death of the deceased. The fact that each of Mr Rolfe and the co-offender were carrying pistols (and the third person was carrying a knife) makes irresistible, the conclusion, that each of them considered that really serious injury could be a consequence of the implementation of this agreement and that the death of the deceased (or another) was a contemplated consequence.

34. The foregoing comment is a conclusion drawn from the carrying of weapons, even though, in the evidence of Mr Rolfe, which I accept, the weapon was carried “just in case”. Nevertheless, I accept that the shooting was not intended to occur, or be initiated, as part of the agreement between Mr Rolfe and the co-offender.

35. Mr Rolfe is also now charged with the unlawful possession of a pistol on 24 October 2014, being a .32 automatic COLT self-loading pistol, and has pleaded guilty to that offence. He seeks to have taken into account in the sentence for that offence, the possession of the ammunition, which is included on a Form 1 to that offence. The maximum sentence for the offence is 14 years’ imprisonment, with a standard non-parole period of 4 years’ imprisonment.

36. Shortly stated, at about 5.30pm on 24 October 2014, Mr Rolfe posted a text with a photograph of himself, holding the gun and pointing it at his own head with the caption: “Hope ya happy c ya”. On a search of Mr Rolfe’s car that day, the Police found the gun embedded in a foam holster wrought into the car’s console.

37. The ammunition was found on 22 October 2014 in Mr Rolfe’s caravan. It was ammunition that fitted the .32 calibre pistol seized two days later.

Subjective circumstances

38. I do not consider that in the murder Mr Rolfe was acting under duress. The submission was put on behalf of Mr Rolfe, as a proposition that he was acting “under some duress”.

39. I am prepared to accept, on the balance of probabilities, that Mr Rolfe’s view was that, if he were not to have accepted the role given to him by officers of The Rebels, he would have been subject to some retaliation or “discipline”. That is a very different concept from “duress”.

40. Mr Rolfe had it available to him, as a matter of his free will, not to accede to the directions. Another person did precisely that. Further, Mr Rolfe parted ways with The Rebels at a later time, which conduct could have occurred earlier in the timeline associated with this offending.

41. Mr Rolfe relies upon a Psychology Report of Ms Caroline Hare, Forensic Psychologist. I accept the evidence given to Ms Hare, the truth of which has been attested to by the evidence on sentencing of Mr Rolfe. I also accept that a prison term will be psychologically challenging to him, particularly because he will need to be in protective custody (as he is now). I also accept that the witness protection program into which he will go after serving his prison term will be a further restriction on his liberty, probably for the rest of his life.

42. I will not repeat the history of childhood trauma and the issues raised by Ms Hare but accept them and her report in full.

43. Mr Rolfe has a criminal history that includes maliciously inflicting grievous bodily harm, resisting or hindering Police in the execution of duty, possession of drugs and a number of driving offences. It is not the most problematic criminal history for an offender charged with murder. Nevertheless, Mr Rolfe is not entitled to the leniency to be shown to a first offender and there are, plainly, issues of violence associated with his past, most of which are explained by the issues raised by Ms Hare.

44. Mr Rolfe gave evidence on sentence. The evidence and the demeanour of Mr Rolfe were informative. Mr Rolfe has expressed genuine remorse and the answer to the question about how he felt about what happened should be recited:

“Every day I wake up sick, I go to bed sick. I’d do anything to go back to that time and take his place. I’m disgusted in myself for being a part of something that caused so much pain to so many people - firstly, his family and now I realise how many people around the world are impacted by this. There’s been times when I’ve been locked up in my cell - because I’ve been on non-association for so long, just all the time by myself - and two or three times on the TV, it’s popped up. Laurie’s father handing over awards to people for cars, and to think that I had - I took part in the reason that that award exists makes me so sick to my stomach every day.”

45. Mr Rolfe’s attitude to the attendance of his family at Court is also informative as to his genuine remorse.

46. I consider that Mr Rolfe has good prospects of rehabilitation, if properly treated.

Consideration

47. In the overall context, the murder, as a bikie retribution killing, is well above the mid-range. Mr Rolfe’s role in that, is one of less culpability than the shooter, Mr Weston, and I accept that, notwithstanding that Mr Rolfe was carrying a weapon, he did not expect the shooting to occur.

48. Nevertheless it is a murder.

49. There are aggravating and mitigating factors, most of which are taken into account in the assessment of the objective seriousness of the murder offence. It is appropriate that I refer to some of them. I have already referred to the fact that Mr Rolfe’s moral culpability in the commission of the overall offence, is lower than that of the co-offender. Parity between the offenders is a matter that must be taken into account in determining the sentence to be imposed.

50. I have already mentioned the assistance to authorities. That assistance is significant and compelling. Indeed, it can be described as quite exceptional.

51. Mr Rolfe has given evidence in the trial of the co-offender, and his evidence, and his conduct in assisting the authorities, has led to the conviction of the co-offender and, more importantly, has been done without any inducement and in circumstances where that assistance has put Mr Rolfe and his family at serious risk.

52. It also requires his incarceration in protective custody. The assistance and evidence was, in my view, having heard the evidence in the trial of the co-offender, complete, truthful and reliable. Mr Rolfe has not gained any other benefit as a result of the assistance.

53. The Court has already referred to the submission as to duress and the record of Mr Rolfe, together with his prospects for rehabilitation and his remorse.

54. The Court has already referred to, and taken into account, the violence and negative influences, including sexual abuse by an uncle, that Mr Rolfe suffered as a child.

55. In my view, there are grounds for special circumstances requiring a longer period of parole to assist with Mr Rolfe’s rehabilitation and treatment in the community. In light of the remorse and assistance, I do not consider that specific deterrence is as significant as it might otherwise be.

56. General deterrence continues to be an issue.

57. As already stated, the assistance is significant and, in my view, exceptional. Mr Rolfe has put himself and his family at risk and will require witness protection for many years after his release.

58. Taking into account all of the objective and subjective factors and, in particular, the parity with the co-offender, I consider that a starting point for the murder of a head sentence of 28 years’ imprisonment is an appropriate position of parity with the co-offender. I allow slightly more than 50% discount for the combined effect of the plea of guilty and the assistance to authorities, and I also find special circumstances.

47. The firearm offence is also serious. It is mid-range or slightly below mid-range for the offence.

48. The principles of sentencing, including totality, apply and require that a sentence be set that, first, reflects the criminality of the offence (taking account of the offence on the Form 1) and the total criminality of both the firearm and murder offences. Yet firearm offences need to be treated very seriously and, given recent events in society, even more so. I accept that the firearm possession is probably as a result of the threats that had already commenced in relation to the murder issue and the possibility that Mr Rolfe would give evidence.

49. In relation to the Form 1, possessing ammunition adds significantly to the criminality of possessing a firearm, but it is only for the possession of the firearm that Mr Rolfe is to be sentenced. As to totality, it does not add significantly to the total criminality.

Sentence

62. Mr Rolfe, please rise.

1. You are convicted that on 24 July 2014, at West Gosford in the state of New South Wales, you did murder Laurence Starling;

2. You are convicted that on 24 October 2014, in the State of New South Wales, you did possess a pistol, namely, a .32 Automatic COLT self-loading pistol, not being authorised to do so by a licence or permit;

3. You are sentenced for the offence of murder to a non-parole period of 8 years’ and 6 months, commencing 23 April 2015 and concluding 22 October 2023, with a remainder of term of imprisonment of 4 years’ and 6 months, concluding 22 April 2028;

4. For the possession of the firearm offence, taking into account the offence on the Form 1, you are sentenced to a non-parole period of 5 years’ and 6 months, commencing 22 June 2018 and concluding 21 December 2023, with a remainder of term of imprisonment of 1 year and 10 months, concluding 21 October 2025;

5. You are first eligible for parole on 21 December 2023.

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Amendments

13 October 2017 - Correction to typographical error in catchwords.

Decision last updated: 13 October 2017