R v Sinclair

[2017] NSWSC 686

Supreme Court

New South Wales

Medium Neutral Citation:	R v Sinclair [2017] NSWSC 686
Hearing dates:	1 – 3 May 2017
Decision date:	15 May 2017
Jurisdiction:	Common Law
Before:	R A Hulme J
Decision:	Aggregate term of imprisonment for 38 years with a non-parole period of 28 years 6 months.
Catchwords:	CRIMINAL LAW – sentence – murder – joint criminal enterprise – objective seriousness well above mid-range – not established that the offender was aware of the possibility of death – gratuitous infliction of extreme violence – criteria for life sentence for murder not established CRIMINAL LAW – sentence – two counts of break, enter and steal in company in circumstances of special aggravation – two counts of detain with intention to obtain financial advantage while in company – one count of detain and cause actual bodily harm with intention to obtain financial advantage while in company – joint criminal enterprise – offender instrumental in formulation and execution of some offences – infliction of harm foreseen but not intended CRIMINAL LAW – sentence – offender’s personal circumstances – addiction to methamphetamine – genuine remorse – good prospects of rehabilitation – guilty pleas – assistance to authorities in trial of co-accused last minute – other matters – general deterrence particularly significant for armed home invasion offences – no finding of special circumstances – aggregate sentence imposed
Legislation Cited:	Crimes Act 1900 (NSW) ss 19A, 86(2), 112(3) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21, 23(4), 61 Criminal Appeal Act 1912 (NSW) s 5DA
Category:	Sentence
Parties:	Regina “Kurt Sinclair” (a pseudonym)
Representation:	Counsel: Mr C Maxwell QC (Crown) Mr S Corish (Offender)   Solicitors: Solicitor for Public Prosecutions Kiki Kyriacou Lawyers
File Number(s):	2014/309120
Publication restriction:	Non-publication of anything that would identify the offender pursuant to s 7(a) and s 8(1)(c) of the Court Suppression and Non-Publication Orders Act 2010 (NSW)

Judgment

1. HIS HONOUR: The offender is to be sentenced for serious offences arising from two home invasions in which he participated, one at Medway on 28 April 2014 and one at Badgerys Creek on 30 May 2014.

2. There is a non-publication order in respect of anything that may tend to identify the offender. For that reason a pseudonym has been used in respect of him and members of his family and some personal information has been redacted in this published version of the judgment.

3. The offences are:

At Badgerys Creek on 30 May 2014:

1.   Murder of Mr Keith Cini

2.   Break, enter and steal in circumstances of special aggravation, namely that he was in company and that grievous bodily harm was intentionally inflicted upon Ms Luciana Boldi

At Medway on 28 April 2014:

3.   Break, enter and steal in circumstances of special aggravation, namely that he was in company and grievous bodily harm was intentionally inflicted upon Mr Brett Delamont

4.   Detain Ms Alana Bush with the intention of obtaining a financial advantage while in company

5.   Detain Ms Kirby Delamont with the intention of obtaining a financial advantage while in company

6.   Detain Mr Jack Lisle and causing him actual bodily harm with the intention of obtaining a financial advantage while in company

4. The offence in Count 1 is one that carries a maximum penalty of imprisonment for life and there is also a standard non-parole period of 20 years.

5. The offences in Counts 2 and 3 carry a maximum penalty of imprisonment for 25 years and there is a standard non-parole period of 7 years.

6. The offences in Counts 4 and 5 have a maximum penalty of imprisonment for 20 years and the offence in Count 6 has a maximum penalty of imprisonment for 25 years. There are no standard non-parole periods for these offences.

7. The maximum penalties and standard non-parole periods, where applicable, are guideposts to which I must have regard.

Facts

8. In April 2014 the offender was a 22 year old man with a serious addiction to methamphetamine ("ice"). During a period of abstinence after a short stint in a rehabilitation program in the first half of 2012 he met Ryan Evans. A friend warned the offender to stay away from Evans because of his drug use. (Q40-44) However, when the offender subsequently relapsed and became a very heavy ice user and supplier, he took to spending time with Evans, even living with him for a while. (Q52-4) He knew Evans had a violent reputation. He had seen him on an occasion when "he grabbed [a] bloke and … hit him a couple of times, gave him a bloody nose and that sort of thing … and the bloke fell over". (Q202-3) In the offender’s evidence about that incident he agreed that Evans had "just hammered him and knocked him down". (T151.45)

9. Through Evans, the offender met a man who will be referred to by the pseudonym "Sam Franklin". Franklin was a long-distance truck driver and also a regular user of ice. He lived at Taree.

10. In the following account of the facts concerning the two groups of offences I will be referring to a number of matters which were the subject of dispute. It is important at this point to state the obvious: that for matters to be taken into account adversely to the offender I must be satisfied to the criminal standard of beyond reasonable doubt and to take matters into account in the offender's favour I must be satisfied on the balance of probabilities.

Home invasion at Medway on 28 April 2014

11. Mr Brett Delamont (aged 50), Ms Alana Bush (aged 49) and their daughter Kirby Delamont (aged 20) lived in a large house on a 30 acre rural property surrounded by similar acreage homesteads at Medway. Kirby Delamont's boyfriend, Jack Lisle (aged 20) would frequently stay overnight.

12. The offender knew the Medway property and the Delamont/Bush family quite well as he had been in a relationship with Kirby Delamont when he was aged 18. (Q211)

13. The offender was with Ryan Evans and Sam Franklin in Taree over the weekend of 26-27 April 2014. They were each desperately short of money and the offender told the others that there was a good chance of there being a substantial amount of money that could be stolen at the Delamont home at Medway. They formulated a plan to carry out a home invasion. The offender drew a "rough diagram" of what he knew of the house and he told the others who would be there and what he thought they should do. (Q118) He told Evans that there would be at least one gun in the house. (Q209)

14. On the Sunday evening the three travelled from Taree to Ryan Evans' home at Elderslie (near Camden). They gathered various items to take including rope, duct tape, face coverings, gloves and torches. The offender said that it was Evans' idea to use rope to tie up the occupants but the offender suggested that using duct tape would work better. (Q225)

15. A pick handle was also taken. The offender claimed that it was "just a bit of an intimidation factor". He said, "At that point I didn't anticipate it being used to that extent". He had told the others that Mr Delamont was not a "confrontational bloke" and he would hand over the money upon request. The offender said, “Mate, you’re not going to need that” (i.e. the pick handle), to which Evans replied, "Just in case". The offender said, "all right, whatever makes you happy". (Q122-5)

16. The offender concedes that the agreement was to break and enter the property, detain the occupants and steal their property. He says that while he did not intend it, he foresaw the possibility that occupants would sustain really serious injuries.

17. The four occupants at Medway retired at a modest hour to their respective bedrooms at opposite ends of the house. The house lights were off and external doors were closed, but many were unlocked.

18. After gathering the various items and smoking some ice the three men embarked upon the 80km journey to Medway. They travelled on rural roads so as to avoid the main Sydney - Melbourne highway.

19. The car was parked outside the property (after the men had earlier removed the number plates to avoid detection by neighbours). At the offender's direction they approached the house along a secondary driveway. The offender led the others around to the back of the house where they entered by an unlocked laundry door.

20. The offender told police that he thought there was a chance of there being two lots of people in the house, so the plan was for Evans and Franklin to go to the master bedroom while he looked around to see if there was anyone else in the house. If there was, he would call out for assistance because he feared that he could be overpowered if he tried to tie anyone up while he was alone. (Q93-94; 140)

Events in the master bedroom

21. The offender directed Evans and Franklin towards the master bedroom where Alana Bush and Brett Delamont were asleep. Upon entering the bedroom Evans walked around to the far side of the bed, where Mr Delamont was lying, and struck him a number of times to his upper torso and head with the pick handle. Mr Delamont was rendered unconscious and was bleeding from the head.

22. Ms Bush, who was sleeping on the side of the bed closest to the door, awoke and immediately became aware of the presence of the two men in the room. She began to scream and continued to scream as loud as she could, hoping to wake the others at the far end of the house to alert them to the danger. The offender said he heard a scream from where he was at the other end of the house.

23. Ms Bush saw Evans standing on Mr Delamont's side of the bed holding the weapon while the other male, Franklin, was standing on her side of the bed. Evans told her to "shut up". When she continued to scream he lunged at the bed with the weapon. She was told again to "shut up". (I pause here to say that Ms Bush did not identify any of the men. In this narrative I am attributing names based upon information provided by the offender and Sam Franklin.)

24. The lights were off but as Franklin had a torch Ms Bush was mostly able to see the males and their movements. She could see that Mr Delamont was not moving and there was a large amount of blood around his head and on the bedding.

25. Evans bound Mr Delamont's hands in front of him with one roll of duct tape, while Franklin used a second roll of tape to bind Ms Bush's hands.

26. It appeared to Ms Bush from the outset that Evans was the dominant "aggressive" male. He was screaming at her and constantly moving. She described Franklin as the "passive male".

27. Ms Bush began to scream again and Evans said, "Shut up or I'll hit him again". He struck Mr Delamont to the upper torso with the weapon. Ms Bush said, "I felt as though my life was in danger and they would kill us."

28. Evans demanded, "Where's the cash?" Ms Bush responded, "I don't know, you've hurt him". Evans threatened, "I'll hit him again" to which she replied, "Don't hurt him just let me think" and "Leave my husband alone he does not deal with the money". She deliberately took her time in an attempt to keep them in her room and away from her daughter and Mr Lisle. She directed Evans to a chest of drawers on Mr Delamont's side of the bed where four thousand dollars in cash was kept.

29. Evans opened the drawers and located the money but then demanded, "There has to be more, tell me what I want or I will hurt you". Feeling that all their lives were in danger she directed Evans to a chest of drawers on her side of the bedroom. He came to her side of the bed. The drawers were searched as Evans continued to hold the weapon and Franklin shone the torch. They located and removed a further four thousand dollars in cash.

30. Evans demanded "Where is your gun?" Ms Bush was shocked that he knew they had a firearm. She directed him to a walk-in wardrobe. Evans and Franklin entered the walk-in wardrobe and located Mr Delamont's .22 magnum rifle in a brown vinyl case behind the door. They returned to the room and Evans asked for ammunition. Ms Bush was terrified what the males would do with a loaded gun and despite knowing where the ammunition was she screamed, "I don't know where they are" and "we don't have any".

31. At some point during these events, Evans demanded to know where there was more money. Ms Bush told him there was a small amount of money in a tin in the office. He demanded, "Where are the phones?" She told him they just had mobile phones. The men took hers and Mr Delamont's phone as well as her iPad.

32. The offenders stood at the bottom of the bed and Evans demanded, "Tell me who else is in the house". Ms Bush tried to arouse Mr Delamont by kicking him as she did not know what to do. He was not responsive and Ms Bush believed he was dying. Reluctantly, she told the intruders that her daughter and Mr Lisle were at the other end of the house.

Evans leaves the master bedroom

33. Evans left the master bedroom and turned on a hall light which allowed for further light in the bedroom.

34. Franklin stayed in the bedroom with Ms Bush. Ms Bush pleaded with him about Evans. She said. "He’s crazy, please don't let him hurt them" and "Go get the crazy guy out of my daughter's room. He will kill her ... he will hurt her". Franklin responded, "No one is going to get hurt". Referring to Mr Delamont, Ms Bush said, "Look at the hole in his head ... look at this" and "he has killed my husband". Franklin picked up a T-shirt from the floor and threw it to her, telling her to hold it against Mr Delamont's head. With her hands still bound she held the shirt against Mr Delamont's head to stem the blood. She told Franklin, "We need help he is bleeding, he is shaking I think he’s going to die". Franklin said, "I'll ring someone when we leave".

35. Ms Bush continued to plead with Franklin. She questioned why they had been targeted and he replied, "This is not personal, this is random". He also told her to "just be quiet". Whilst alone in the room with Ms Bush he repeatedly walked to the doorway to check the hallway. She estimated that she was alone with him for about five minutes.

Events in Ms Delamont's bedroom

36. There are three accounts of what occurred in Kirby Delamont's bedroom: hers, Mr Lisle's and the offender's. The accounts of Ms Delamont and Mr Lisle are similar but (understandably in the circumstances) not identical, whilst the offender's is considerably different. I reject the offender’s version for reasons I will explain shortly.

37. I am satisfied that what occurred is that Mr Lisle awoke to Ms Bush screaming from the other end of the house and he woke Ms Delamont. Mr Lisle went to use his phone but before he could do so a man with "a pole" or "a bar" came into the bedroom followed by another man. I am satisfied that the first man was Ryan Evans with the pick handle and that the offender was the other man. Ms Delamont also said that she saw two men enter.

38. Mr Lisle pulled the blanket over himself and lay on top of Ms Delamont to protect her. Evans struck at the bed with the pick handle a number of times, hitting Mr Lisle on the stomach. Demands were made of the pair: "Face down, Face down" and "Give us your fucking phones and wallets". Ms Delamont and Mr Lisle were terrified and stayed still under the covers. They could hear movement throughout the bedroom. At some stage their phones were taken.

39. After a few minutes they heard a male voice direct them to sit up in the bed with their eyes closed. They sat up with their eyes mostly closed. A man was standing next to Mr Lisle, shining a torch in his eyes. The two men then bound Ms Delamont's and Mr Lisle's hands and feet with duct tape and put pillowcases over their heads. Mr Lisle and Ms Delamont both feared that she was going to be raped.

40. The offender's account, which I reject, was to the effect that he entered the bedroom alone; he did not have a weapon; he commanded the victims to hide their faces and he asked where their phones were. He said he then yelled out down the hallway "hey bro down here" and Ryan Evans soon came in with the pick handle. Evans did all of the tying up of the victims and then left. The offender only held the torch and got the pillow cases. He remained until Evans returned and said, "Mate we’re sweet, they’ve got ten grand here". They both then left that end of the house.

41. I do not accept the offender's version for the following reasons:

a)   He was under the influence of ice and he agreed that using ice heavily (as he was) affected his ability to recall certain things (T162.35).

b)   There is consistency in the evidence of Ms Delamont and Mr Lisle that the first time they saw the intruders there was a man with a pole (Evans) and another man who entered virtually together.

c)   It is difficult to accept that the offender entered the bedroom by himself and commenced interaction with the two victims when he also said that he was concerned about his voice being recognised and about being overpowered while alone (Q140). It seems more likely that, unbeknown to Ms Delamont and Mr Lisle, the offender identified their presence but refrained from interacting with them until Evans arrived and took the lead in that regard.

d)   According to Ms Bush’s evidence, which I accept, Evans went to the other end of the house after she told him about her daughter and Mr Lisle being there. He was not responding to the offender calling out, "hey bro down here".

e)   Mr Lisle's recollection was that both men were involved in tying up him and Ms Delamont. It is unlikely that the offender would not have assisted in tying up Ms Delamont and Mr Lisle when it was he who had suggested duct tape as a more effective means of doing so than Evans' idea of using rope.

42. Whilst I reject the offender's account, I do not regard his version as one that would reduce his culpability to any material extent.

Back in the master bedroom

43. After being left alone with Franklin for approximately five minutes, another male who Ms Bush called Male 3 entered. She saw he was shorter and stockier than the other males. He was wearing slightly lighter clothing than the others and had a lighter mask concealing his face. The Crown contends that this was the offender, but he denies it. The significance of this relates to whether the offender had first-hand knowledge of the state Mr Delamont was in and whether he then proceeded to do certain things to him.

44. The offender told police in his interview of 21 April 2017 that towards the end of the incident, Evans and Franklin went back to the master bedroom while he returned to the other end of the house because he had forgotten to collect the phones of Ms Delamont and Mr Lisle. (p.15.10) He said that the first time he found out what had happened to Mr Delamont was when he was told about it on the journey home (pp. 16-17)

45. I am satisfied beyond reasonable doubt that Ms Bush did see a “Male 3” (the offender) for the following reasons.

46. The facts with which Sam Franklin agreed in his sentence proceedings included that it was the offender who entered the master bedroom at this stage of the incident. In his police interview in October 2014 he said that it was not. (Q319) However, he said in his evidence a number of times that when he was interviewed by police he was under the influence of ice (T48.22, 54.1, 55.41, 79.32). In his oral evidence there was certainty and then uncertainty on the subject: compare his evidence at T46.45-47.12 with that at T57.5, 58.40, 78.8, 78.47.

47. Ms Bush spoke of an immediate realisation that the man who came into the room at this stage of the incident, joining Franklin, was not the aggressive man who had earlier left (i.e. Evans). She gave a detailed explanation for this in her oral evidence (T16.25). It aligned with what she said in a statement made on the day of the incident three years ago. (Exhibit E [28]) I appreciate that Ms Bush's observations of this person were made in the context of a most terrifying ordeal. Nevertheless, I accept her evidence in preference to that of the offender. She impressed as an intelligent woman who was quite direct about matters she was sure of but who also showed care to concede quite readily when she was unsure (for example, about whether the third man had a torch).

43. Continuing with the narrative of events, Franklin approached the bed and told Ms Bush to put her feet out. At this point Ms Bush thought she was going to be raped. Wearing a shirt and underwear she asked Franklin to let her put her pants on. He refused but when she took her feet out from under the covers he pulled them across her legs to cover her. Franklin proceeded to tape her ankles together with duct tape. According to her statement of 28 April 2014 (at [27]), the third male (the offender) entered as this was occurring.

44. The offender dragged Mr Delamont's feet out from under the covers and taped his ankles with a different roll of duct tape. He used a piece of rope to tie up Mr Delamont's hands over the top of the duct tape which was already there. Mr Delamont was shaking and convulsing at this point. Despite her hands being bound Ms Bush was attempting to continue holding the shirt to his head to stem the bleeding.

45. Franklin and the offender removed pillowcases from pillows. Franklin placed one over Ms Bush's head while the offender placed another over Mr Delamont's head. This prompted Ms Bush to believe that they were now going to be killed. She pleaded, "Please don't kill us". Franklin responded, "Nobody is going to get hurt". She continued to plead and Franklin told her to be quiet. Both males then left the room.

The intruders leave the house

51. Ms Bush attempted to get her hands out of the tape and found she could slide them out. She waited until she could not hear any noise before removing the tape from her ankles. She crept down the hallway to the office where there was a landline phone. She rang 000 while hiding behind a desk, unaware whether the males were still in the house. Her call was logged at 1.29am. Police and ambulance officers were dispatched immediately.

52. Ms Bush then went to Ms Delamont's bedroom and cut the bindings from her and Mr Lisle's hands and feet. She told them to assist Mr Delamont. They went to the master bedroom where they found Mr Delamont in the foetal position, bound by duct tape, violently shaking with his face covered in blood. Police arrived at the scene at 1.41am.

53. It is estimated the intruders were inside the home for 15-20 minutes. They went through various rooms including the study, kitchen and living area. They left with over $8000 in cash; the firearm and firearm case; a number of handbags; a watch; Mr Delamont's wallet; four mobile phones; two iPads; and a brown reusable shopping bag.

54. The offender told police that on the journey away from Medway, Evans said, "You weren't wrong, [redacted], that was fucking easy". He said that it was during the journey that he first heard what had happened to Mr Delamont. That may be so, but for the reasons already given I am satisfied that he was already aware that Mr Delamont had been severely injured. What he found out about on the journey home was how that occurred. This included Franklin laughing about "the sound it made when Ryan hit Brett in the head”, and making comments including, “You just clubbed him” and “Fucking made a cracking sound". There was also laughter about Ms Bush being so panicked that she had difficulty speaking when Mr Delamont was unconscious and she was being asked where the money was. (Q196; 229)

55. The men returned to Elderslie. They then went out to buy drugs, spending $3200 on ice which they shared. $200 was given to Evans' father for board and they shared the balance of the proceeds. The offender said that with his share he bought clothes and drugs and gambled the rest on poker machines. He said that Evans kept the stolen rifle at his place.

Injuries

56. Paramedics were called to the Medway home. They stabilised Mr Delamont and transported him to Liverpool Hospital where he was examined by Dr Giles Mosely. As a result of being hit with the weapon Mr Delamont suffered:

a.   a wound to the right side back of his head 3cm wide and 1 cm deep requiring suturing.

b.   bruising to the left temporal area; and

c.   a fractured skull and bruising to the brain.

57. Head injury experts believe Mr Delamont was struck around the head a number of times. He remained in hospital for two weeks under the care of Doctor Balsam Darwish and a neurosurgical team. For the first five days he was suffering Post Traumatic Amnesia. After release from hospital he was placed under a treatment plan with the Liverpool Brain Injury Rehabilitation unit. He continued under a treatment plan and the care of Dr Ahamed Veerabangsa.

58. At first, Mr Delamont needed to redevelop everyday skills such as walking, eating, dressing and showering. He suffered initial language impairment. He has required ongoing speech therapy, occupational therapy and physiotherapy. He needed to learn to drive again.

59. In June 2014 he was examined by Dr Veerabangsa and his speech was functional but he continued to suffer reduced attention, impairment of short term memory, reduced problem solving skills, reduced hearing in his left ear, vertigo and impaired balance. He was continuing with all therapies.

60. Dr Veerabangsa carried out an assessment on 25 November 2015, some 19 months post injury. Mr Delamont still showed difficulties and limitations, including reduced attention regulation and information processing, which impacted upon his ability to retain information and to learn and remember new information. Dr Veerabangsa stated that Mr Delamont sustained:

"a moderate to severe traumatic brain injury as a result of the alleged assault on 28/04/2014. He received separate injury to the right side and the left side of the head as a result of impact from a blunt object. He has psychological and cognitive/memory difficulties as a result of the injuries sustained. At one year and nine months prognosis is good but long term if not permanent impairment is likely."

61. Mr Delamont does not recall the incident at all. He reported that he is unstable on his feet and at times has fallen. He has suffered vertigo episodes; for a number of weeks he suffered more extreme vertigo and at those times he has been unable to function at his pre-injury level, suffering nausea and being unable to get out of bed. He is undergoing further specialised treatment in relation to this.

62. Mr Delamont also suffers ongoing fatigue; he is unable to multi task; and sometimes has difficulty holding conversations. His intellectual skill and business skill levels have been greatly reduced. He is no longer able to conduct himself in his managerial role as the owner and director of his drilling company which employed approximately 12 staff members.

63. Mr Lisle suffered a red welt mark on his torso as a result of being hit when under the covers by the male with the weapon.

Home invasion at Badgerys Creek on 30 May 2014

64. As at May 2014 Keith Cini was 69 years of age. He lived at Badgerys Creek with his partner Luciana Boldi who was aged 67 years. They lived in a three bedroom home on a small farm on Elizabeth Drive. They occupied separate but adjacent bedrooms.

65. Mr Cini owned and operated Keith Cini Pty Ltd, a business which sold pigs to restaurants in the Sydney metropolitan area. He operated the business from his residential address.

66. Mr Cini employed a number of people in his day-to-day running of the business. The normal routine included delivering pigs to various locations every Wednesday and Thursday. Payments were generally received in cash which he would secure in a pin-coded safe located in a locked room (the study) in his home on Thursday night for deposit at the bank every Friday. The amount in the safe on any given Thursday night and Friday morning varied between $5,000 and $60,000.

67. Ryan Evans had previously worked for Mr Cini as a casual delivery driver and was thereby aware of how the business operated.

68. In the weeks leading up to 30 May 2014, the offender and Evans planned to carry out a second home invasion. The offender told police that "Ryan and I had again gotten ourselves into financial troubles … smoking more drugs than we were selling … so we needed to do something to make some money". At some point in time they agreed to target Mr Cini. The offender said that the idea came from Patrick and Sean Kenney, former employees of Mr Cini, who told them about the cash that could be expected at the premises on a Thursday night. He and Ryan Evans discussed it further between themselves. (Q415) The offender asked Sam Franklin if he wanted to participate in another "job" but Franklin declined.

69. The offender told police that he and Evans planned their attendance at Badgerys Creek. He claimed, "Originally we discussed doing it in a similar way to Medway". But he also claimed that they discussed, "just sneaking in and grabbing it and going". (I will say more about this claim later.) He said he had been told the money was kept in envelopes on a bookcase in an office. (Q417)

70. In the early hours of 29 May the offender and Evans exchanged a series of text messages where they discussed carrying out the home invasion that night. They met that afternoon at Evans' home at Elderslie. At about 10.15pm they caught a taxi from there to the home of a friend of the offender at Rossmore, which is about 14km from Badgerys Creek. The offender was carrying a bag with gloves and a balaclava. (Q417 p57)

71. The offender told police that he and Evans sat around at Rossmore, smoking ice and talking until it was time to go to Badgerys Creek. When they arrived at the address they sat in the car for 10 or 15 minutes observing the premises and smoking more ice. (Q417 p58)

72. When Mr Cini and Ms Boldi had retired to their respective bedrooms that evening the external doors were securely locked. Sometime after 3.00 am the offender and Evans alighted from the car and pulled their balaclavas down. They had with them a pick handle, duct tape, gloves and face coverings. They entered the property by smashing a front window. The offender cut his finger causing it to bleed.

73. The balance of this narrative is derived solely from the statement of facts and Ms Boldi’s statements. There is a substantial dispute by the offender as to what occurred after he and Evans entered the home.

74. Once inside the property either one or both intruders came into contact with Mr Cini. It is thought Mr Cini was first attacked in his bedroom on the basis of his blood being found there. His blood was found in various other parts of the house as well, which indicated that the intruders caused him to move around the house in order to facilitate them getting access to the safe. At some stage his ankles were bound with duct tape.

75. At some point both the offender and Evans had Mr Cini outside Ms Boldi's bedroom door. Ms Boldi was woken by Mr Cini calling "Luce". She got out of bed, turned on the light and opened her bedroom door. She saw Mr Cini in the hallway with two figures near him. Ms Boldi said, "I could only see the back of his head. I saw a dark figure with him. I am not sure if it was one or two people near him. I was still standing in the doorway to my bedroom when I saw a dark figure coming towards me. The person was wearing all black with their face covered. The person wasn't very tall." In a later statement providing more details of her observations she said, "I saw [Mr Cini] to my left. I saw black figures standing over him, it was at least two people and I remember seeing arms and hands all over [Mr Cini]." In her oral evidence it emerged that she may have inferred that there were two intruders by the fact that she subsequently heard two voices.

76. Ms Boldi tried to close her door and stood with her back to the door but an intruder forced his way into her room by pushing the door in. She was struck to the head by an object that she believed to be a bat (in fact the pick handle). She fell to the ground behind the door and was struck to the head a further two or three times. She covered her head with her hands in an effort to protect herself. She recalled seeing a male with a bat over his head. She pleaded, "No more, please stop". She said that the man kept hitting her. She lay motionless pretending to be dead, trying not to breathe, and hoping he would stop hitting her. The intruder stopped hitting her and left her room. Photographs later taken by a crime scene examiner showed quite a deal of blood on the back of the door and the wall beside it on the inside of the bedroom.

77. At some stage Mr Cini was violently assaulted in the hallway, including by being hit to the head with the pick handle. He was later found deceased just outside his and Ms Boldi's bedrooms.

78. Ms Boldi remained laying on her bedroom floor. She heard movement about the house from room to room and noises consistent with the premises being ransacked; crashing type noises, glass breaking and drawers being opened and closed. One of the intruders re-entered her bedroom and stepped on her legs as he walked in. Ms Boldi remained still, pretending to be dead. This offender searched Ms Boldi's drawers and cupboard and emptied the contents of her handbag on the floor. The offender then left the room. At one point she heard a male voice saying, "It's here, it's here". At another point she heard what she believed was "That's enough, Brian". This was in fact the offender saying, "That's enough Ryan".

79. Ms Boldi heard loud banging noises from the hallway area near the kitchen adjacent to the study, where the safes were. These noises continued until she heard a male voice state, "Here it is". There was silence for a period of time. There was then the loud sound of glass smashing in the lounge room.

80. Ms Boldi waited a short time until she thought it was safe. When she got up and left her bedroom she saw Mr Cini lying motionless in the hallway. She went to the office and used the home phone to call 000. The call was logged at 4.04am.

81. The first police arrived about 10 minutes later. Officers found Ms Boldi crying and she had blood all over her face. They asked what happened and she replied, "He is around there and isn't moving."

82. The officers found Mr Cini lying on his side in the hallway, apparently deceased. His ankles were taped together with duct tape and there was duct tape on his wrists. The plasterboard wall to the right near his head had a hole in it and had been sprayed with blood. The paramedics who arrived soon after noted that Mr Cini had sustained significant head injuries. He was pronounced deceased.

83. Ms Boldi was treated for multiple head and arm injuries and was taken to hospital.

84. A crime scene examination found blood with the offender's DNA profile in various places in the house, namely in the deceased's bedroom, the hallway (including on the deceased's left wrist), the hallway side of Ms Boldi's bedroom door, the lounge room, the kitchen and the study door. His shoe impressions in blood were found up and down the hallway from where Mr Cini's body lay to down and around a corner to the study door. The door to Ms Boldi's bedroom had been forced off its hinges and was lying inside the room.

85. The intruders had ransacked the study but had been unable to access the safes which were bolted together and fastened to the floor. (Radford [83]) A number of sets of keys were found nearby, indicative of the intruders having tried them in their attempts to open the safes. (Radford [86]) One of the safes was later found to contain $18,248 in cash and $3,242 in cheques.

Post mortem findings

86. Mr Cini was found to have died as a result of "blunt head injury". There were numerous injuries involving the head, torso and extremities. It is unnecessary to spell them all out. In short, he sustained a very severe beating, principally to the head where there were various abrasions, contusions and wounds; skull and jaw fractures; and catastrophic brain injury.

Injuries to Ms Boldi

87. Ms Boldi was taken to Liverpool Hospital where her injuries were recorded as being: "multiple scalp lacerations, multiple head and finger lacerations and fractures, swollen and bruised right cheek, multiple bruises to bilateral shoulders and forearms, right shin bruising and multiple abrasions, right distal ulnar shaft fracture". These were attributed to: "multiple episodes of blunt trauma to face/head, neck, shoulders, trunk, upper and lower limbs." She suffered a fracture of her right wrist. The treating doctor stated, "Her multiple lacerations to scalp, forehead and finger would leave permanent scarring that may be disfiguring".

88. Ms Boldi was referred to the care of a consultant hand surgeon at Fairfield Hospital where she underwent surgery on her hand. The surgeon recorded the injuries with which he was concerned as follows: "Right distal ulna fracture, left middle finger extensor laceration, left ring finger flexor laceration and proximal … fracture left... nail bed injury and ... Fracture". He found her injuries to be consistent with "being struck by a blunt object, and being cut by a sharp object a number of times". In his opinion, "She will have permanent loss of function, strength and range of motion in her left hand due to the injury (despite her excellent compliance post operatively with hand therapy)".

Arrests

89. Sam Franklin was arrested on 20 October 2014. He was interviewed and told police about his, Evans' and the offender's involvement in the Medway home invasion.

90. The offender and Evans were arrested (separately) on 21 October 2014. They both exercised their right to silence and declined to be interviewed.

The offender's interview with police on 21 April 2017

91. I have mentioned that there is substantial dispute as to what occurred once entry was gained at Badgerys Creek. The dispute also extends to aspects of the offender’s state of mind when planning the incident and when entry was gained to the house.

92. It must be borne in mind that the offender's version was given in the context of him having read the brief of evidence over the two and half years that he had been in custody. (Q712)

The offender’s account

93. The offender said that the original plan was for a home invasion but after he was told that Mr Cini left for work at an early hour he said, "Why don't we just wait till he goes to work and we'll just catty the joint?" "Catting" was his term for just sneaking in and out. He said in his evidence that the plan was to wait for Mr Cini to go to work early in the morning and then to rob the place once he left. (T111-2)

94. The offender said that he and Evans attended the location a week before 30 May. They were equipped with gloves, balaclavas and a torch and ready to carry out the invasion but it was too early in the night and an occupant was still awake with the television on. They decided to defer their plan to the following week. (Q417 p56)

95. When they arrived at the house on the morning of 30 May there was a light on in what he later became aware was the kitchen. They parked the car and waited, smoking ice, for about 10 or 15 minutes. Evans then got out of the car and the offender saw he had a pick handle. He said to Evans, "we're just robbing the joint, mate". Evans replied, "ah, well, just in case". The offender said "that was sort of when I … knew we weren't just robbing the joint". He also said that when he realised that Evans had the pick handle and duct tape, even if someone was home he (Evans) was going through with it and "that's when I still went up there with him". (Q490-1)

96. He said that Evans smashed the front window and entered the home while he remained outside for a very short time. In his interview he said, "Approximately I'd say ten seconds maybe". In his oral evidence he maintained an estimate of 10 to 15 seconds (T107.1; 164.27)). When he heard a woman scream he "spun around" and entered through the broken window. (Later in the interview he said that he got "the shock of [his] life" when he heard a woman screaming because he did not expect her, or anyone else, to be present.) (Q493-4) He went to the bedroom area. He saw Mr Cini unconscious on the floor.

97. Ms Boldi's bedroom door was partially open. He could see Ryan Evans swinging the pick handle at her four to five times. Ms Boldi continued screaming but then she stopped. The offender entered her room, saw Ms Boldi was apparently unconscious, (Q450-456) and said to Evans, "This is fucked, mate. We're going". Evans told him, "Quick, just have a fucking look around".

93. The pair went into Mr Cini's bedroom and starting rifling through drawers. The offender said to Evans, "What are you doing? Just get the … money, let's go". Mr Cini started to regain consciousness at this point. Evans pulled the duct tape out of his pants. He gave it to the offender and told him to tie Mr Cini up while he, Evans, got the money. The offender proceeded to put duct tape around Mr Cini's feet. Mr Cini's head was bleeding substantially. (Q606) Evans called to him to "come here and give me a hand".

94. The offender went around the corner in the hallway to the study where Evans was trying to enter the locked study. The offender tried unsuccessfully to barge the door open with his shoulder. Evans made a number of trips to the kitchen, returning with keys but they still could not gain access to the study. They attempted to break the door open with the pick handle but that did not work either.

95. The offender next saw Evans in the kitchen having a drink from a bottle he had taken from the refrigerator. The offender said, "What the fuck you doing, mate? We can't get in there … let's go". They then walked back into the hallway and went around the corner to where Mr Cini was sitting up trying to remove the duct tape from his feet. Evans then hit him to the head about six times with the pick handle. (Later in the interview he said Evans "beat the living shit out of him".) (Q644) The offender came up to him and said, "Stop Ryan, stop. That's enough. Stop mate" and grabbed Evans by the arm. (I note that this is consistent with Ms Boldi saying she heard one of the intruders say, "That's enough [Ryan]".) The offender then said to Evans, "That's it, I'm leaving. I'm going, mate, you coming with me or not". Evans told him to go and wait in the car. (Q419)

96. The offender said he left via the broken front window. He waited in the car but Evans did not return. He then drove around the block for the next 15 to 20 minutes. Each time he passed the house he looked out for Evans but he had not emerged. He then drove right up to the house and sounded the horn but still Evans did not emerge. He drove around the block once more and when he returned he saw Evans waiting on the side of the road. As they drove away, the offender apologised for having left. Evans said, "No, you're right mate". Evans then said that he thought Mr Cini was dead, "pretty sure he died when I crushed his fucking skull in". (pp61-63)

97. The offender said that he first found out with certainty that Mr Cini had died when friends told him later that morning. He had hoped that Evans was wrong, “’cause when I left he wasn't dead". (p65)

Disputes as to facts

103. The Crown contends that a number of features of the offender's version are untrue. The principal areas of dispute are the offender’s claims that:

1. He thought that the plan was merely to sneak in, steal money and sneak out.

2. He thought no-one would be home.

3. When he first saw Mr Cini he was already wounded and unconscious.

4. When he first saw Ms Boldi she was already wounded and seemingly unconscious.

5. He left the premises after remonstrating with Ryan Evans as the latter was assaulting Mr Cini.

Issues 1 and 2

104. In large part I do not accept the offender's claims as to these matters because there are some fundamental flaws in his account.

105. The claim that he and Evans went to Badgerys Creek the week before but did not proceed with a plan to sneak in and steal money because it was apparent that someone was home is doubtful. The offender claimed that he and Evans had been told by one or the other of Patrick or Sean Kenney that Mr Cini quite often used to go to work at 4.00am to 5.00am. He said that to enable an undetected entry to the home and theft of property they were going to break in after Mr Cini had left for work. Problems with this include that it would have been apparent from the nature of Mr Cini’s work, and the nature of the property on which he lived, that going to work did not necessarily mean leaving the property. More significantly, however, the offender said that they arrived at Badgerys Creek on Friday 23 May 2014 at 1.00am to 2.00am, a long time before Mr Cini would leave for work in any event.

106. The offender's claim that he thought on 30 May 2014 that nobody would be home and they would sneak in and steal property is also of dubious credibility in light of a number of matters. First, in the days leading up to 30 May he asked Sam Franklin to participate. If what was proposed was a break and enter at unoccupied domestic premises, the involvement of a third man who would expect a share of the proceeds was unnecessary. The involvement of a third man would only be useful if occupants were to be confronted. (I note that even if there had been an attendance at the property on the morning of 23 May, the subsequent request made to Franklin suggests a realisation that the assistance of a third person would be useful in overpowering occupant(s).)

107. Second, the fact that the offender and Evans brought the means to disguise their faces is another factor tending towards knowledge that someone would be home when they entered.

108. Third, the fact that a weapon in the form of a pick handle, and the means to incapacitate an occupant, or occupants, in the form of duct tape were brought along also militates against the claim that a non-confrontational, non-violent intrusion in the property was proposed. The offender claimed that Evans had these items and he was not aware of this until after they alighted from the car outside the home. Given that they travelled together to Rossmore in a taxi and then together to Badgerys Creek in the offender's friend's car, it is difficult to accept the offender's claim in this respect. The best he could offer in cross-examination was that Evans had "been in that car twice previously that night. So whether he had it in there previously …". (T141.5) The suggestion that Evans went out in the friend's car twice in the preceding hours when they were at Rossmore in order to supply drugs to people and somehow in the course of doing so he acquired a pick handle which he then secreted in the car is too far-fetched to accept.

109. Moreover, given the events at Medway a month earlier which involved the use of a pick handle and duct tape, it is highly unlikely that Evans would keep a secret from the offender that he was bringing such items to Badgerys Creek. The offender's claim to the effect that it was all a surprise to him is not credible.

110. I am satisfied beyond reasonable doubt that the plan between the offender and Evans was to carry out a home invasion: a joint breaking, entering and stealing at Mr Cini's home in which they would meet any potential opposition by occupants with violence and deprivation of liberty as necessary. I reject the offender’s claim that he believed that nobody would be home and that he thought the plan was just to sneak in, steal money and sneak out.

111. But even on the offender’s account, he was aware of the presence of occupants at the time he entered the house. One occupant was Mr Cini; he said they waited for him to leave for work but they went up to the house without having seen that happen. Then, just before the offender entered the house, he heard a woman scream.

112. Further, the offender says, in effect, that he did not want the violence to occur but I am satisfied that he was aware at the time of a likelihood of it occurring. Even though on his own version that he was not aware of the presence of the pick handle until they got out of the car, he agreed in cross-examination that at that point he knew that Evans was going to use it if there was anyone in the house and use it in a very savage way, not unlike he had done at Medway. He agreed that after he saw that Evans had the pick handle he proceeded with the plan because he was desperate for money. (T141.40)

Issues 3, 4 and 5

113. The events within the house, and the order in which they occurred, are somewhat unclear. However, one thing that is clear is that at the time Ms Boldi opened her bedroom door, after having been alerted to something happening within the house, got out of bed and turned the light on, Mr Cini was standing in the hallway. That is, it is not the case that Mr Cini had been attacked and rendered unconscious within 10 or 15 seconds or so of Evans’ entry into the house.

114. One intruder, who I am satisfied was Evans, directed his violent intentions towards Ms Boldi with such immediacy that it is most unlikely that Mr Cini was rendered unconscious before the attack upon Ms Boldi. This suggests that there likely some physical interaction between the other intruder (the present offender) while Evans was attacking Ms Boldi. Although the offender denied it (T163), there is probably some truth in the statement allegedly made later by Evans to Franklin that Mr Cini was getting the better of the offender and that is when Evans came and hit Mr Cini.

115. I consider it likely that Mr Cini was asked to help locate the money and was taken around the house by one or the other of the intruders. His blood being located at various places around the house supports this, as does the logic that this would occur given the intruders did not know precisely where the money was kept.

116. I therefore reject the offender’s claim that when he first saw Mr Cini he was already wounded and unconscious.

117. I do not find it possible to determine one way or the other the fourth and fifth matters of dispute (Ms Boldi was already wounded and seemingly unconscious and the offender left the house while Evans was further assaulting Mr Cini). I do not, however, regard them as being of any great significance.

118. Whatever may have been the actual events within the house, the simple fact is that the offender's version is not one that reduces his criminal culpability in any material respect. He probably did tell Evans, "that is enough", but he continued his participation in the enterprise after both Ms Boldi and Mr Cini had been violently assaulted to the point where she was thought to be dead and Mr Cini was unconscious. He helped to search for money and other valuable property. He tied Mr Cini's feet with duct tape to incapacitate him when it was thought he was regaining consciousness. He continued to be present as Evans was "beating the living shit out of" Mr Cini.

119. The Crown contended that whilst the joint criminal enterprise might not have been to kill, I should nevertheless find that the offender had an appreciation that death of one or more of the occupants was a very real possibility. (T180.15) That may well be so but the evidence is not such that I am satisfied of it beyond reasonable doubt. I am satisfied that he participated with full knowledge that the infliction of grievous bodily harm to one or more occupants was a high likelihood.

The harm caused

120. There is intense tragedy in this case. The offender's family have, through the scourge of an evil and insidious drug, lost someone who his mother described as a once "kind, gentle, sensitive and honest young man" to what he and they accept must be a lengthy time in prison. However, they are also acutely conscious of the devastating effects his actions have had upon others. As his mother put it, their own grief "pales in comparison to what the victims of these crimes are going through".

121. Ms Luciana Boldi's life has forever changed, partly as a result of her physical injury but mostly because of the loss of her partner as well as the psychological and emotional trauma she experienced on that horrific night. Undoubtedly it is something that will never leave her. It has had a negative impact on the way she is able to live her life in a great many ways.

122. Ms Leanne Adam has had her father taken away from her. She wrote in her victim impact statement that he was also a father-in-law; a grandfather; an enthusiastic member of the community; an extremely hard worker; a business owner; an employer; and a very loyal friend to many people, hundreds of who attended his funeral. There has been profound grief for so many people.

123. Mr Brett Delamont has no memory of the attack. His description of his life before and after is one of very marked contrast. He just cannot do many things that he was more than capable of in the past. This has had an adverse effect physically, intellectually, emotionally and financially. He continues to suffer on a daily basis in a variety of ways; vertigo, fatigue and loss of his sense of smell are examples.

124. Ms Alana Bush experienced indescribable terror on two levels. She witnessed what the intruders did to her helpless husband and then the torture of thinking what might befall her daughter when the men were at the other end of the house. The sense of guilt she feels about not being able to protect her loved ones is grossly unwarranted, but for her it is a reality she lives with. Compounding all of this is the long-term struggle to help her husband recover from his debilitating brain injury, a process that will never be complete. Her sense of security in her own home has been shattered too. An unhealthy hypervigilance robs her of sleep. In her victim impact statement she wrote: "Our lives are very different now. We are all still struggling to deal with the repercussions of such a shocking crime." The sense of betrayal Ms Bush feels after it was revealed that the offender was one of the intruders and that he had orchestrated the invasion serves to make it all the worse for her.

125. Ms Kirby Delamont wrote in her victim impact statement of her terror on the night, the terrible consequences for her father and the effect his difficulties have had upon the family. The long journey of helping him to perform tasks usually taken for granted (walking, feeding, toileting and the like) has been extremely difficult.

126. I am grateful to each of the authors of the victim impact statements for bringing to the attention of the court, and the community, the terrible consequences these horrible crimes have brought. They may be assured that they have my sympathy.

Seriousness of the offences

Murder

127. The maximum penalty for murder is imprisonment for the term of a person's natural life with no prospect of parole: Crimes Act 1900 (NSW), s 19A. Section 61 of the Crimes (Sentencing Procedure) Act 1999 (NSW), provides that a court is to impose such a sentence if satisfied "that the level of culpability [of the offender] in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence." This is subject to the general discretion provided in s 21 of the Crimes (Sentencing Procedure) Act for a court nevertheless to impose a sentence of imprisonment for a specified term.

128. I am satisfied that the objective seriousness of the offence of murder (in the manner in which it was committed by this offender) is well above the middle of the range, but it is not so grave as to warrant the imposition of the maximum penalty. The community's interest in the four matters mentioned in s 61 can be adequately met by a lengthy determinate sentence.

129. In making my assessment of the objective seriousness of the offence I have taken into account that the evidence does not establish that the offender was aware of the possibility of death occurring. Nevertheless, the offence involved the gratuitous infliction of extreme violence with a weapon upon an older man, disturbed from his sleep in his own home, by an intruder who was accompanied by this offender. This offender was well aware that Evans was armed, that the premises were occupied, and that grievous bodily harm could well be inflicted upon one or more occupants.

130. The fact that the offender did not specifically intend that such harm would be inflicted does not diminish the seriousness of the offence to any significant extent. On his own account, the offender willingly complied with Evans’ request that Mr Cini be incapacitated by way of tying his feet together with duct tape, thereby rendering him more vulnerable. He contributed in that way, at least, to the gratuitous cruelty with which Mr Cini was treated. Further, the fact that he was well aware of the extreme violence that Evans was capable of in such circumstances (for example, by having seen what he had done a month earlier to Mr Delamont), makes his willing intrusion into the premises with Evans to satiate a desire for money a matter of very grave seriousness. Finally, despite the offender's high level of culpability, on the evidence before me in these proceedings it has to be seen as less than that of Evans.

The other offences

131. The other offence at Badgerys Creek concerning the infliction of grievous bodily harm upon Ms Boldi, and the offences at Medway, are all at about the same level of objective seriousness (well above the mid-range) although the offence concerning Mr Delamont is the worst of them because of the level of harm caused.

132. In relation to the Medway offences I am particularly mindful of the fact that the offender was instrumental in the formulation and execution of the armed intrusion by three masked men. The offences were committed against people who were asleep in a home in a semi-remote rural location. Substantial physical injury was caused to Mr Delamont, beyond that necessary to make out the element of grievous bodily harm, and substantial emotional harm was caused to all of the occupants.

133. Again, in respect of the offences concerning Ms Boldi and Mr Delamont, the fact that the infliction of very serious physical harm was not specifically intended by the offender but was foreseen, I am satisfied, as something that could well occur is not something that diminishes to any great extent the seriousness of these crimes.

The offender's personal circumstances

134. The offender was [redacted] at the time of the offences.

135. He comes from a good family. He told Mr Philip Gorrell, psychologist, "My parents are really supportive and they gave me every opportunity. Dad was always by my side and I just love my mum". (Exhibit 4)

136. [Redacted].

137. The offender was educated at a local primary school and for most of his time in high school as a boarder at private schools in Sydney. He was a shy and anxious child who did not make friends easily and did not settle well as a boarder. He excelled in a variety of sports, however, [redacted].

138. After it was recognised that his academic capability was such that he would experience difficulties completing his Higher School Certificate he left school at the end of Year 11 [redacted]. I note that Mr Gorrell's assessment was that the offender was "of average intelligence".

139. [Redacted].

140. [Redacted].

141. The offender began using drugs in his final years of school when he was 16 or 17 years of age. He experimented with ecstasy, then amphetamine and cocaine. He also commenced using alcohol. When he was working on the family property he was consuming alcohol on a daily basis. He told Mr Gorrell that using alcohol and drugs helped him with anxiety and made him more confident in social situations. When his parents found out about his alcohol abuse he began to see a psychologist who diagnosed him with an anxiety disorder. It was around this time that he stopped [redacted]. He said in his evidence that the counselling he was receiving helped him to curb his drinking but he soon returned to his old ways. (T123-4)

142. He commenced using methamphetamine ("ice") at the age of 20 [redacted] and became addicted straight away. For the first few months he was using it every two or three days at about 0.1 or 0.2 grams at a time. He said that initially it gave him confidence but over time it had the opposite effect, making him paranoid and unable to function.

143. The offender's parents became concerned about their son's erratic behaviour. He became argumentative, irritable and often did not go to work. His mother said that there was no longer love in his eyes, just indifference. When they confronted him with their suspicions about drug use he denied it. Soon after this he left home for a few weeks and his family did not know where he was. Friends told them that he was using drugs. They sought advice on how to obtain treatment and contacted drug rehabilitation programs across the country. On 29 January 2012 he returned home asking for help. The following day his father travelled with him to Adelaide where he was admitted to a residential facility. He discharged himself two weeks later. He said he did so because he disagreed with suggestions that his drug use emanated from problems in his childhood and upbringing.

134. The offender returned to his parents and told them he wanted to stay off drugs. There followed counselling with a psychologist at [redacted] and attendances upon a psychiatrist at Burwood for about seven months. According to Mr Gorrell's report, the psychiatrist made diagnoses of Attention Deficit Disorder, Anxiety Disorder, Depression and Addiction. (I note that Mr Gorrell himself saw no current indicators of ADD.) Medication was prescribed and the offender's mother ensured that he took it.

135. It seems that the offender progressed well and experienced abstinence for a while. He completed a course to qualify him as a personal trainer and he worked [redacted]. However, on his 21st birthday [redacted] he relapsed with use of cocaine. Thereafter, he slowly started to use "speed" in a social context and was drinking more frequently. It progressed to the point where he could no longer go to work and would lie on the couch all day. On 4 April 2013 he left the family home. He returned for a day in mid-2014 but his family otherwise did not have any contact with him until after his arrest in October 2014.

136. In this period of a year and a half the offender lived with people who were involved with drugs and he developed what he described as a "huge habit", using about 2 grams of ice (at a cost of about $500) per day. He said, "Drugs took over my life". He had employment [redacted] but lost it on a day when police [redacted] charged him with drug possession (20 March 2014). He became a drug supplier to fund his addiction and this became a full-time occupation.

137. The offender described this as the lowest point in his life. He had lost a considerable amount of weight. He had only one bag of clothes and was living with friends. He rarely knew what day it was and he had scabs all over his face and arms.

138. The offender wrote a letter to his parents the day before he was arrested that was described as a "suicide note". He told Mr Gorrell, "I was disgusted in myself. I was going to kill myself. I was disgusted in what I had become and done." The letter (Exhibit 3) is an expression of love, sorrow and regret for what the offender had put his parents through. There is no explicit mention of the offences, although he sought forgiveness for "all the wrongs I did" which he said was a reference to the offences as well as to the way he had treated his family. (T131) In an affidavit (Exhibit 5) the offender said that he had been thinking of suicide for a few months. He was confident he would be going to gaol and gaol "wasn't an option".

139. The offender was refused bail following his arrest on 21 October 2014. Mrs Sinclair gave evidence that when she and her husband first saw their son soon after he was taken into custody he was 20 kg lighter than when she had last seen him; he had scabs on him; he could not speak very well (she said, "we could hardly understand him"); and generally, "he looked a mess". (T178-9)

140. He spent the first two weeks in the general population but then asked to go into protective custody where he has remained. He has been held in a Special Management Area Placement, the least restrictive form of protective custody. The offender said that he requested to go into protective custody because he had been charged with an offence concerned with the death of an older man and he was worried about the ramifications of this in terms of his personal safety. He anticipates having to remain in this form of custody. His understanding is that his custodial conditions are no different from normal custody; there are no restrictions on movements or activities or differences in lock-in times. (T168) There is no evidence to suggest that this will change after he is sentenced.

141. Over the past two and a half years that the offender has been in custody he has not used any illicit substances and he has applied himself productively with employment as a barber and as a cleaner in the gymnasium. He receives regular visits from his family and also maintains frequent contact with them by telephone. His mother described having her old son back again.

142. No courses have been available to the offender in the remand environment but he hopes to engage in courses after he has been sentenced. He told Mr Gorrell that he accepts he will be spending many years in custody and he hopes he can take advantage of every positive opportunity made available to him.

Criminal history

153. In 2013 and 2014 the offender was convicted for a low-range drink/driving offence; two driving whilst disqualified offences; and a drug possession offence. The penalties were fines and periods of disqualification. In context, it is not a significant record of prior convictions.

Remorse

154. The offender said the following to Mr Gorrell about how he felt about committing the offences:

"I hate myself for it. I'm ashamed of it. I can't talk to mum and dad about it. I'm horrified. All because I was a crack head. I see myself as the biggest piece of shit in the world. I was an able follower. No excuses. I hit no one but I didn't stop it. I didn't have a weapon."

155. The affidavits of his parents and sister include references to his expressions of remorse. (Exhibit 6 at [30]; Exhibit 7 at [54]; Exhibit 8 at [31]) He expressed remorse in the course of giving evidence. It sounded rehearsed but I accept the explanation that this was because he had given thought to what he would say because he is not good with words. The manner in which he spoke said as much as the words he used. It is also notable that he took full responsibility for his drug abuse and did not seek to blame it for his offending. (T125; 132)

156. I accept that the offender is genuinely remorseful.

Rehabilitation and prospects of re-offending

157. Drug abuse has been the underlying feature of the offences. There is no suggestion of the offender being predisposed to involvement in violent conduct when not abusing drugs. Further, it is common ground that he must receive a very lengthy term of imprisonment.

158. Thus far, the offender has avoided any temptation in the custodial environment to return to drug use. It seems reasonable to forecast that with his renewed commitment to his family and their strong support that will remain so. In those circumstances his prospects of rehabilitation and of not further offending appear to be good.

Reduction of sentence on account of pleas of guilty and assistance

159. The offender entered pleas of guilty to the Medway offences in the Local Court at Campbelltown on 20 April 2016. He was committed for trial in respect of the Badgerys Creek offences but, on 18 April 2017 when his trial with a jury was due to commence, he entered pleas of guilty. On the previous Monday there had been argument concerning admissibility of evidence issues and his lawyers had been notified on Wednesday 12 April that the rulings would be adverse to him.

160. In recognition of the utilitarian benefit to the criminal justice system flowing from the pleas of guilty the sentences to be imposed for the Medway offences will be reduced by 25 per cent. In relation to the very late pleas for the Badgerys Creek offences the sentences will be reduced by 5 per cent.

161. When entering the pleas of guilty to the Badgerys Creek offences, the offender indicated that he was prepared to give evidence for the Crown in the trial of Mr Evans. He was interviewed by police on 21 April 2017. When he gave evidence on 2-3 May 2017 in the sentence proceedings he confirmed his offer to give evidence. I was told that the Crown is minded to accept that offer.

162. The primary issue in the trial of Evans will be whether he (Evans) was present at Medway or Badgerys Creek during the commission of the offences. He denies it. The Crown already had a quite reasonable case against Mr Evans in respect of this issue. For example, there is DNA evidence of his presence at Medway. There are a host of circumstantial items as well as admissions to various people as to his presence and involvement at Badgerys Creek. The substantial similarity between the two events is the basis for my allowing the Crown to rely upon coincidence evidence. Accordingly, the assistance proferred by the offender is significant and useful, but the Crown is not dependent upon it to prove its case against Mr Evans.

163. Another way in which the offender's assistance is significant and useful is in proving what Mr Evans actually did within both sets of premises. If the proceedings concerning Mr Evans move to a sentence phase, that will be reasonably important.

164. The truthfulness, completeness and reliability of the evidence of the offender has been discussed earlier in relation to the various disputed facts. One matter that has not been questioned, however, is his assertion that Ryan Evans was his co-offender in both incidents.

165. Other matters that are required to be considered include the timeliness of the offender's undertaking to assist. It was undoubtedly at the last minute. It has necessitated the deferral of the trial of Evans but not to any major extent. Further, the offender has not gained and does not stand to gain any benefits by reason of his undertaking to assist. There is no evidence that he will suffer harsher custodial conditions as a result. There has been no suggestion of danger, or a risk of danger, to himself or his family. Finally, and obviously, the assistance concerns the offences for which the offender is being sentenced.

166. In relation to the Medway offences by reason of the pleas of guilty and assistance the sentences will be reduced by a total of 35% and in relation to Badgerys Creek the sentences will be reduced by a total of 15%. (There will be some rounding for practical purposes.) Any greater allowance would render the resulting sentences unreasonably disproportionate to the nature and circumstances of the offences.

167. All of the 10 per cent allowance I have made for assistance is for that which the offender has undertaken to give in the future. Unless he fulfils that undertaking, he has not provided any assistance at all.

Parity

168. Sam Franklin pleaded guilty in respect of two offences at Medway: (a) break, enter and steal in circumstances of special aggravation, namely being in company and inflicting grievous bodily harm while being reckless as to the causing of actual bodily harm to Mr Delamont, and (b) detaining Ms Bush with intent to obtain a financial advantage in circumstances of aggravation, namely being in company. These are offences against s 112(3) and s 86(2)(a) of the Crimes Act for which the maximum penalties are imprisonment for 25 years and 20 years respectively.

169. Taken into account at Mr Franklin's request when sentence was imposed for the first of those offences were the further offences of detaining Ms Delamont with intent to obtain a financial advantage in circumstances of aggravation (being in company) and detaining Mr Lisle with intent to obtain a financial advantage in circumstances of special aggravation (being in company and inflicting actual bodily harm).

170. After allowing for a 45 per cent reduction on account of Mr Franklin's pleas of guilty and his undertaking to give evidence against others, his Honour Judge Colefax SC imposed an aggregate sentence of 14 years with a non-parole period of 8 years and 5 months. The individual sentences were assessed as 20 years and 15 years respectively, each reduced by 45 per cent to 11 years and 8 years respectively.

171. It is not appropriate that I express a view about the very high starting points adopted by Judge Colefax for the individual sentences except to say that they leave limited scope for the application of the parity principle in respect of a co-offender with a higher degree of culpability. I have assessed the sentences for the present offender in the light of my findings as to the objective seriousness of the various offences and all of the other facts and circumstances concerning the offences and the offender.

Other matters bearing upon the assessment of sentence

172. It is necessary to have regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act. Of particular significance in this case is the need for general deterrence, denunciation of the offender’s conduct and making him accountable for his actions, and recognising the harm caused, both to the victims and, by extension, to the community.

173. General deterrence is particularly significant in relation to armed home invasion style offences. They are offences that strike great fear in victims and in the community generally. They are dangerous in that there is an inherent and grave risk that any resistance will be met with the infliction of extreme harm. In this case, of course, the intruders were not met by resistance at all; the victims were met with quite unnecessary, gratuitous and brutal violence.

174. It was submitted that I should find that there are special circumstances that would warrant enlarging the parole period of the sentence at the expense of the non-parole period. I have considered that submission but have concluded that the period of parole that will be allowed for if the usual ratio is adopted would be appropriate in all of the circumstances.

175. It is necessary to give credit for the period the offender has been in custody since his arrest and so the sentence will be backdated to 21 October 2014.

176. An aggregate sentence will be imposed. If I had imposed individual sentences they would have been as follows:

1. Murder of Mr Keith Cini: 30 years with a non-parole period of 22 years 6 months.

2. Specially aggravated break, enter and steal (with intentional infliction of grievous bodily harm upon Ms Luciana Boldi): 13 years 6 months with a non-parole period of 10 years.

3. Specially aggravated break, enter and steal (with intentional infliction of grievous bodily harm upon Mr Brett Delamont): 12 years with a non-parole period of 9 years.

4. Aggravated detain for advantage (Ms Alana Bush): 8 years 6 months.

5. Aggravated detain for advantage (Ms Kirby Delamont): 8 years 6 months.

6. Specially aggravated detain for advantage (Mr Jack Lisle): 9 years.

177. On account of the offender’s pleas of guilty and undertaking to give evidence in the prosecution of Ryan Evans, the sentences for counts 1 and 2 have been reduced by 15 per cent and the sentences for counts 3 to 6 have been reduced by 35 per cent.

178. If individual sentences were being imposed they would have been partially accumulated to reflect the fact that each offence involves its own particular criminality relating to six different victims.

179. For the purposes of s 23(4) of the Crimes (Sentencing Procedure) Act and s 5DA of the Criminal Appeal Act 1912 (NSW), I can indicate that but for the offender's undertaking to give evidence the aggregate sentence to be imposed would have been in the order of 4 to 5 years longer.

Sentence

180. Convicted in respect of each offence.

181. Sentenced to an aggregate term of imprisonment for 38 years with a non-parole period of 28 years 6 months. The sentence will date from 21 October 2014. The offender will become eligible for release on parole when the non-parole period expires on 20 April 2043. The total term will expire on 20 October 2052.

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Decision last updated: 17 April 2018