R v Spinks

Case •

[2021] NSWDC 452

•

02 September 2021

No judgment structure available for this case.

District Court


New South Wales

Medium Neutral Citation: R v Spinks [2021] NSWDC 452
Hearing dates: 18 August 2021
Decision date: 02 September 2021
Jurisdiction:Criminal
Before: Haesler SC DCJ
Decision:

Aggregate sentence of 7 years 6 months with a non parole period of 4 years.

Catchwords:

CRIME - multiple offences - supply commercial quantity of prohibited drug MDA - Receiving stolen motor vehicle - Supply shortened firearm without authority - Supply prohibited drug methylamphetamine - Possess defaced firearm

SENTENCING - Relevant factors on sentence – multiple offences – multiple Forms 1 – Drug supply- firearm supply- community safety- accumulation and concurrence- accumulation on existing sentence- totality – parity and proportionality with a number of co-offenders

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Crimes (Sentencing Procedure) Act 1999

Criminal ProcedureAct1986

Drug (Misuse and Trafficking) Act 1985

Firearms Act 1996

Summary Offences Act 1988

Weapons Prohibition Act 1998

Cases Cited:

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115

Afu v R [2017] NSWCCA 246

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146

Do v R [2010] NSWCCA 182

Green v The Queen (2011) 244CLR 462

Hamzy v R (1994) 74 A Crim R 341

Jadron v R [2015] NSWCCA 217

MAKv R [2006] NSWCCA 381

Mbele v R [2021] NSWCCA 182

Mill v The Queen (1988) 166 CLR 59

Postiglione v The Queen (1997) 189 CLR 295

R vCahyadi [2007] NSWCCA 1; 168 A Crim R 41

R v Clinch (1994) 72 A Crim R 301

R v Dekker;R v Kominkovski [2021] NSWDC 186

R v Frankcom [2021] NSWDC 294

R v Glynatsis [2013] NSWCCA 131

R v Harris [2007] NSWCCA 130; 171 A Crim R 267

R v Holder; R v Johnston [1983] 3 NSWLR 245

R v Kinzett [2021] NSWDC 339

R v Mohamad [2005] NSWCCA 204

R v Spinks [2021] NSWSC 649

R v Warren [2019] NSWDC 820

R v West [2019] NSWDC 838

R v Wheeler [2000] NSWCCA 34

R v Williams [2019] NSWDC 804

R v XX (2009) 195 A Crim R 38

Tran v R [2010] NSWCCA 183

Category:Sentence
Parties: Matthew Henry Spinks (the offender)
Director of Public Prosecutions
Representation:

Counsel:
Mr S Fraser, Public Defender (for the offender)

Solicitors:
Morrisons Law (for the offender)
Ms Olender (for Director of Public Prosecutions)
File Number(s): 2018/00262819; 2018/00262825; 2018/00269730; 2019/00396430

sentence

Introduction

  1. On 10 June 2021, in the Supreme Court of New South Wales sitting in Wollongong, Justice Hamill sentenced Matthew Spinks for the crime of murder to a term of imprisonment of 20 years and 10 months, with a non-parole period of 15 years and 7 months: R v Spinks [2021] NSWSC 649. Spinks had been convicted after trial by jury. He had accepted responsibility for unlawfully killing his victim but he contested the murder allegation. He was sentenced for the premeditated shooting of a criminal associate with a 12 gauge shotgun discharged at close range. That sentence began on 12 August 2018. Spinks will be eligible for consideration for release to parole on 11 March 2034. His total sentence expires on 11 June 2039. The murder took place on 14 February 2018.

  2. Spinks is now before this court for sentence for a number of serious offences committed at about the same time as the murder - between January 2018 and July 2018. It is accepted that an aggregate sentence must be imposed and that any sentence I impose must result in Spinks spending more time in custody.

  3. I am required to indicate an appropriate sentence for each offence. I must then structure them so that both my aggregate sentence and the sentence imposed by Justice Hamill, is overall, just and appropriate to the totality of the Spinks’ crimes: Mill v The Queen (1988) 166 CLR 59 at 62-63. In doing so it must be acknowledged that many of the purposes of sentences will already be met by the length and severity of Justice Hamill’s sentence. As it stands Spinks cannot be released until March 2034 at the earliest. He, and the world he emerges into, will be very different than today. He will also be subject, while in custody and on release, to supervision by the Serious Offender’s Review Council (should it exist then). He is also subject to the Crimes (High Risk Offenders) Act 2006 (NSW).

Matters for sentence

  1. The various matters for sentence have been separated into four (4) groups.

Offence Group # 1- Offence of 28 January 2018:

  1. Seq 1/ Count 1: Supply commercial quantity of prohibited drug; 1000 tablets of 3-4 MDA (approx. 250 grams): s.25(2) Drug (Misuse and Trafficking) Act 1985 (DM&T Act): maximum penalty 20 years imprisonment; standard non-parole period (SNPP) 10 years.

Offence Group # 2 - Offence of 4 -11 April 2018:

  1. Count 7/Seq 16: Receiving stolen motor vehicle (on 7 April 2018): s.188(1) Crimes Act 1900 (NSW): maximum penalty 12 years imprisonment.

  2. Count 2/Seq 22: Supply shortened firearm without authority, namely 12 gauge double barrel shot gun (between 6-9 April 2018): s.62(1)(c) Firearms Act 1996: maximum penalty 14 years imprisonment.

  3. Count 6/Seq 6: Intentionally damage/destroy property by fire, motor vehicle (on 11 April 2018): s.195(1)(b) Crimes Act: maximum penalty 10 years imprisonment. When I sentence Spinks for that offence I will take into account the following matters on a Criminal Procedure Act 1986 Form 1:

  • Seq 9: Custody of knife in a public place on 11.4.18: s.11C(1) Summary Offences Act 1988

  • Count 4/Seq 12: Possess explosives without authority on 11.4.18:s.93FA(1) Crimes Act

  • Seq 13: Possess detonators without authority on 11.4.18; s.93FB(1)(c) Crimes Act

  • Seq 18: Acquire a firearm while subject to a Firearms Prohibition Order between 6-9 April 2018: s.74(1) Firearms Act

Offence Group # 3 - Offence of 15 February to 12 July 2018

  1. Seq 7: Supply prohibited drug, namely 222.7g methylamphetamine (between 7 April – 29 June 2018) s.25(1) DM&T Act: maximum penalty 15 years imprisonment. When I sentence Spinks for that offence I will take into account the following matter on Criminal Procedure Act Form 1:

  • Seq 3: Participate in a criminal group (7 April to 12 July 2018): s.93T(1) Crimes Act

  1. Seq 9: Acquire ammunition while subject to a Firearms Prohibition Order (accessory after the fact) on 26 April 2018: s.74(3) Firearms Act

  2. Seq 8: Hinder investigation of serious offence on 4 June 2018: s.315(1)(b) Crimes Act: maximum penalty 7 years imprisonment. When I sentence Spinks for that offence I will take into account the following matter on a Criminal Procedure Act Form 1:

  • Seq 6: Larceny on 8 June 2018 s.117 Crimes Act

Offence Group # 4 - Offences of 4 June 2018:

  1. Possess defaced firearm, 30/30 Winchester lever action rifle, without being authorised to do so: s.66(1)(b) Firearms Act: maximum penalty 14 years imprisonment. When I sentence Spinks for that offence I will take into account the following matters on a Criminal Procedure Act Form 1:

  • Possess firearm in contravention of a Firearms Prohibition Order served on him on 11 November 2017; s.74(1) Firearms Act.

  • Not keep firearm safely: s.39(1)(a) Firearms Act.

  • Possess prohibited weapon: s.34(1) Weapons Prohibition Act 1998

Facts for sentence

Offence Group # 1

  1. In June 2017, a police strike force was established to investigate the supply of prohibited drugs in Parkes, Forbes and the Illawarra. A Controlled Operation was authorised. On 28 January 2018, a number of calls were exchanged between Gil, Warren and Spinks regarding the supply of 3, 4-Methylenedioxyamphetamine. Code words such as “lollies" and “pink Euros" were used. Warren and Gil discussed purchasing 500 pills and their price. Spinks told Gil the price would be $8.00 each. Warren then contacts Gil. They agree on "all pink". Warren calls Spinks again telling him "yeah, just the pink ones". Warren then settles on "a hundred of the brown ones, 900 of the other ones".

  2. On 29 January 2018, Warren tells Spinks that he is "just counting them up" and "there's like 500 and the rest are just like halves and shit… and dust".

  3. On 8 February 2018, Spinks texts Warren "wats gain on have u heard from ur mate need to known wen he comin back wit some paper for me my mate is askin bout it bra let me know". Later that evening he sends a further text "bra wats gain on wit the money thats owed stop fuckin around n let me know so my mate knows".

  4. Between 8 February and 12 February 2018 a few messages are exchanged between Warren and Spinks, with Spinks asking for an answer on when he will receive payment. Based on previous drug seizures it is estimated that 1000 MDA pills would weigh approximately 250 grams. The commercial quantity of 3-4 MDA is 125 grams.

Offence Group #2

  1. From mid-late February 2018 onwards the NSW police were lawfully monitoring a telephone service operated by Spinks. He was in contact with Joshua Williams and Christopher West. Williams and West were looking to source a firearm and were asking the offender to assist them to find one. Spinks was told that it had something to do with an AVO and “Westy’s missus”.

  2. When talking about the firearm Spinks said, “…. You always have to cover up when you’re doing shit….if you don’t have something for your hands it’s not worth it…you don’t want to go to gaol for shit…..you don’t want to go there just for not wearing a pair of them”.

  3. On 6 or 7 April 2018, West and/or Williams were involved in stealing a white Audi A4 sedan from a garage in Bulli. Spinks was not involved in the theft. On 7 April 2018 West arrived at Spinks’ address with the Audi sedan. He directed West to drive up his driveway into his backyard and to be careful driving in past the gates: Receive stolen property, namely motor vehicle.

  4. On 7 April 2018 Spinks told West that he has “still got everything you gave me”. He was referring to sourcing a firearm for Williams to use. Spinks subsequently sourced and supplied West and Williams with a 12 gauge double barrel shot gun. Its barrel had been shortened: Supply shortened firearm without authority to do so. On 11 November 2017 Spinks had been served with a Firearms Prohibition Order by NSW Police: Acquire a firearm while subject to a Firearms Prohibition Order.

  5. Spinks had general knowledge that, as part of an ongoing dispute between West and his ex-partner, West and Williams had obtained a stolen Toyota RAV 4 and planned to drive to her house with the shotgun he supplied. After that offence he became aware that the shotgun had been discharged: R v Williams [2019] NSWDC 804; R v West [2019] NSWDC 838.

  6. On the afternoon of 11 April 2018, at the direction of Williams or West, Spinks drove the stolen Audi sedan to Berkeley. He was intending to destroy the Toyota Rav 4 used in the ‘drive by shooting’ and to retrieve the firearm from bushland where it had been hidden. Spinks called Williams who asked “What are you doing” He replied “Cleaning up you mess mate, where’s this thing? Up top?”

  7. Acting on information from intercepted calls police went to the bushland area. When they arrived the Toyota Rav 4 was engulfed in flames: Intentionally destroy property by fire, namely motor vehicle. Continuing to act on information from intercepted calls police located the shotgun before Spinks could find it. The shotgun and Rav 4 were later confirmed as those used by West and Williams during the shooting at Northcliffe Drive Berkeley.

  8. Police then found Spinks. He was searched. They found the key to the Audi sedan and a small folding knife. He was allowed to leave: Custody of knife in a public place.

  9. Police located the Audi nearby. In the rear footwell area were 8 x large 60mm PCF Rocktek commercial explosives, 2 x 27.5mm PCF Rocktek explosives and 28 detonators in a plastic bag. A police Bomb Appraisal Officer attended and determined that the explosives were of a commercial nature and were safe to move, as the detonators were separate to the explosive: Possess explosives and detonators without authority.

  10. On 11 May 2018, in an intercepted call with another associate, Spinks says of the shotgun. “Yeah and its an issue for me and my mate. I still haven’t told my mate yet. I’m dodging around the fact that I don’t have his thing anymore. He’s going to be filthy.”

Offence Group #3

  1. In April 2018, police established another Strike Force to investigate the supply of methylamphetamine in the Lake Illawarra area. One particular group was run by “the supplier” who purchased bulk amounts of methylamphetamine which he then on-sold to Spinks, Frankcom, Kominkovski, Dekker and Kinzett for further distribution. As “the supplier” may be before the Wollongong District for a jury trial in 2022 I have referred to him by this pseudonym.

  2. The agreed facts are extensive and relate to all those involved in the criminal group. What follows is a short summary I have had to prepare in order to convey the nature of the operation and Spinks’ role in it.

  3. On 7 April 2018, the supplier sold Spinks with 7 grams methylamphetamine. Another 2 ounces methylamphetamine (56.6 grams) were supplied on 9 April 2018.

  4. On 14 April 2018, the supplier and Spinks discuss recruitment of Kominkovski and Frankcom. The supplier and Spinks agreed to 'start on twenty-three' and increase the amounts if they were successful. In the intercepted calls the two discuss Spinks’ debt and quality of methylamphetamine.

  5. On 17 April 2018 the supplier told Spinks he owed 'eleven three ($11 300)' and stated he needed to make a payment.

  6. On the 21 April 2018 Spinks supplied “4 ounces” methylamphetamine (113.2g).

  7. On the 5 May 2018 Spinks checked on Frankcom's supply levels.

  8. On 17 May 2018, the supplier chases up debts from Spinks and Frankcom. He sent a text messages to Spinks, 'Need coin 2 day' and 'Need paper 2-day bra.' That evening, Spinks had a text message exchange with Frankcom. Frankcom indicated he needed more methylamphetamine and that Kominkovski required a further ‘ounce.’

  9. On 28 May 2018, Kominkovski supplied Spinks with 3.5 grams of methylamphetamine. Spinks made a phone call to Kominkovski and told him he need to obtain a 'round one' to give to 'old mate'. Spinks outlined 'old mate' attempted to purchase the methylamphetamine from Frankcom, who ‘didn’t have enough.' Kominkovski agreed. Spinks said, 'It's cash and that. It's a sale...'

  10. On 5 June 2018 - the supplier again seeks payment of debt from Spinks. In a phone he asked, 'can you come out with some paper please?’

  11. On 5 June 2018, the supplier supply to Spinks- 0.5 ounces methylamphetamine (14.1g)

  12. On 5 June 2018 the supplier made a phone call to Frankcom and asked if Dekker had received the 'whole one' [one ounce of methylamphetamine]. Frankcom said, 'Spinks halved it.' The supplier then made a phone call to Spinks and said, 'Did you take half of that thing?' Spinks said, 'Yeah.' the supplier said, 'Where's the money?'

  13. On 6 June 2018, Spinks made a phone call to the supplier and was told he was owed 'four-three' [$4,300].

  14. On 10 June 2018, Spinks spoke to the supplier about 'washing' the methylamphetamine. He said, 'Well this is what I'm doing then. I'm getting dropped off and you're pulling out a little container and you give me a couple of cracks at it with washing it and having a couple goes... and then I can tell ya what it's like. Just what I did to the first one was mostly dust... and then... I'll wear it if it fucking turns out not to be...'

  15. Later Spinks made a phone call to the supplier and informed him that Frankcom was ready for 'another run.'

  16. On 16 June 2018 - the supplier chased up debts owed by Spinks, Frankcom and Dekker. He sent a text message to Spinks which read, '28' [$2,800].

  17. On 20 June 2018, Spinks reported complaints about quality of drugs supplied to the supplier. He told him, 'Getting word that this one's [batch of methylamphetamine] no good.' Spinks asked the supplier if he had any left-over methylamphetamine from his previous purchase. The supplier said, 'Yeah, but I want to send it today because I am getting nothing but love for this one.'

  18. Later, Spinks made a phone call to the supplier and again stated he is receiving bad feedback about the methylamphetamine. Spinks speculated the supplier's up-line source was manipulating the supply, varying the quality and profiting from the bad batch.

  19. On 21 June 2018, Spinks sent a text message to the supplier which read, 'This is mad one so good that I stayed home n slept ……ur ppl know wat there talkin bout mayb wen i go collect u can being em wit me so they can convince my ppl that it actually is good'.

  20. Spinks collects Wood's debts: On 23 June 2018 Spinks told the supplier he collected $1800 from 'old mate' the supplier said he would ‘be around at 8 tomorrow' and asked Spinks to leave the money for him. The supplier arranged to meet with Spinks to collect the money.

  21. On 24 June 2018, Spinks made a telephone call to the supplier who told Spinks he was still owed $3,000. He told Spinks he believed he had 'lost interest'. The supplier stated he could not understand how Spinks had 'got rid of all the white one' yet had 'nothing to show for it.'

  22. On 25 June 2018, Spinks made a phone call to the supplier who asked him to 'line up' more mobile phones. Spinks stated they would probably need to purchase them from Sydney using gift credit cards.

  23. On 29 June 2018, the supplier supplied Spinks with 1 ounce methylamphetamine (28.3 grams). He told Spinks he owed him $2,500. The pair agreed to meet. Spinks asked the supplier to bring 1 ounce of methylamphetamine with him.

  24. Over a three month period Spinks was involved in this criminal group in the supply of 222.7 grams methylamphetamine. The indictable quantity of methylamphetamine is 5 grams and the commercial quantity is 250g.

  25. On 12 July 2018, Spinks was arrested and bail refused for the murder.

Offence Group #3

  1. On 28 September 2015, police served a Firearms Prohibition Order and Weapons Prohibition Order on the supplier.

  2. On 26 April 2018, NSW Police conducted Firearm Prohibition Orders searches at premises in Barack Heights. Inside a portable demountable shed attached to a trailer they located boxes containing 59 shot gun shells and 150 rounds of .22 calibre ammunition and a Barska brand rifle scope.

  3. At the time of the searches, telephone intercepts captured the supplier as he alerted his associates of the search warrants. The supplier contacted Spinks and asked that he identify a 'third-party' who would be willing to claim ownership of the ammunition and take responsibility for them.

  4. Police captured a series a phone calls between the supplier, Spinks and another where they sought to devise a scenario that would might cast doubt as to the ownership of the ammunition. The group decided to prepare a false receipt in relation to the purchase of the trailer. Spinks, acting as accessory, wrote up a false receipt for the purchase of the trailer in the amount of $1,000.

  5. At 11:47am on 4 June 2018, police attempted to stop an Audi A5 driven by the supplier for the purpose of conducting a random breath test. The supplier failed to stop when requested to do so and drove off at speed.

  6. At 11:50am, the supplier called Spinks and sought his assistance, saying that he believed he was being pursued by police. Spinks offered to allow the supplier to hide the Audi A5 in the rear yard of his property.

  7. About 2:30pm, a relative of the supplier attended Lake Illawarra Police Station and reported the Audi stolen. In a later telephone call Spinks told the supplier that police were parked outside his residence at Koonawarra. They discussed a plan for Spinks to speed away from the property to distract police from the presence of the Audi A5.

  8. Spinks gave police consent to search his property. Police seized the silver Audi A5. Spinks made a phone call to the supplier and told him police could not move the Audi from the backyard. They discussed Wood's brother attending the property to claim the vehicle was his sister's.

  9. On 10 June 2018, the supplier made a telephone call to Spinks. And said after a friend asked "Why the fuck did you take off from an RBT?"...I said, "for some reason I don't like going to gaol."'

  1. The Audi was later forensically examined. Fingerprints belonging to the supplier and Spinks were located.

Form 1 - Seq 6 - Larceny (Listening Device equipment)

  1. On 15 May 2018 a listening device was lawful installed at Spinks' residence at Koonawarra. On 4 June 2018, Spinks had a phone call with a friend who speculated Spinks' house was 'bugged.'

  2. About 10:40am, in a phone call Spinks told the supplier there is a camera on his neighbour's roof watching his house. The supplier says the camera 'needs to be grabbed.'

  3. On 8 June 2018, Spinks in an intercepted call says he went 'looking' (for a listening device) and 'found what they were listening through....'

  4. On 12 July 2018 after Spinks’ arrest Police searched his home at Koonawarra with the intent of retrieving the listening device but could not locate it.

Offence Group #4

  1. On 11 November 2017, Spinks was served with a Firearms Prohibition Order and a Weapons Prohibition Order.

  2. On 4 June 2018 detectives attended Spinks’ home at Koonawarra. They looked into the rear yard of the house next door. The house there had previously suffered significant fire damage and was unoccupied. Detectives saw an object wrapped in builders plastic and tied with elastics at each end. The object was examined and found to be a firearm; a Winchester 30/30 lever action rifle.

  3. The firearm was later test fired and found to be in working order. DNA was recovered from it and its wrapping. Spinks’ DNA profile could not be excluded from the mixed DNA samples recovered.

  4. On 12 July 2018 after Spinks was arrested in relation to the murder he was searched and police found a metal knuckle duster. A knuckle duster is a prohibited weapon: Possess prohibited Weapon; Form 1 matter.

Objective seriousness

Drug Supply

  1. Spinks was both a drug user and a drug supplier. He had his own sources and his own customers and he also worked for the operation run by the supplier and was part of that criminal group. His ‘business,’ if it could be so described that way, was relatively disorganised and at relatively low level. Much of it was, as his calls to the supplier demonstrate, conducted on credit. He was selling drugs so that he could obtain drugs for his own purposes and to support his addiction and to profit from their sale. He was constantly in debt to the up-line supplier and acted at his direction. But he had his own customers and, importantly, he recruited others into the criminal group.

  2. His actions were repeated. There was some system. It was very loose but required some organisation. He was an active participant. He had some autonomy. The financial arrangements were clearly haphazard. As is common with most such offences they were committed without regard for public safety. As is evident by the Form 1 matter to which he has admitted his guilt, it was part of organised criminal activity.

  3. All these facts are relevant to my assessment of the objective seriousness of the two supply offences and their location in the notional range of seriousness. I must take into account how the supply in offence Group# 3 relates with the criminal group offence on the Form 1 attached to it.

  4. I must also take into account the amounts of drugs supplied. Weight is but one of many factors and it determines the maximum penalty available. The 1,000 MDA pills did not appear to be of high quality but by weight they amounted to about twice the commercial quantity of 125 grams.

  5. The methylamphetamine count was a rolled up quantification of a large number of small supplies which Spinks generally supplied by the “ounce.” In total it was just under the commercial quantity of 250 grams. This accumulation was accepted by the defence. It was entirely appropriate: Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA 217. The advantage of a rolled up charge to an offender is that it restricts the maximum available sentence to that prescribed for the single offence, rather than the total theoretically available maximum sentence from multiple charges. The whole of Spinks’ conduct, including all of the conduct encompassed in the rolled up charge, is relevant. It enable an assessment of the necessity for general deterrence and to the assessment of totality: R v Glynatsis [2013] NSWCCA 131at [68].

  6. It is also clear that at the same time as he was supplying drugs Spinks had access to and was able to obtain firearms. Drug users and dealers notoriously associate with those who operate outside the law. Violence is common; theft and rip offs are common. A firearm raises the risk level of any transaction and the potential for serious harm to result. Further, drug use often causes those affected to act irrationally. Again, where a firearm is possessed in an unsafe, unsecured and unregulated environment; where drug affected people have access to it, increases the potential for serious harm.

Firearms, prohibited weapons and explosives offences

  1. Each Firearms Act offence for sentence involved significant breaches of the Firearms Act1996. Each crime was committed without regard for public safety. Spinks well knew he was not to be doing what he did - having been served with a Firearms Prohibition Order on 11 November 2017.

  2. There are also firearms, weapons and explosives offences on Forms 1, each item had the potential to cause harm to others.

  3. The Firearms Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. Although for one matter he acted as intermediary and another as an accessory that fact made him no less culpable than the person he supplied the shotgun to or the supplier whose ammunition it was.

  4. That the shotgun had been shortened meant it could not have had any legitimate purpose. He well knew that it was wanted for an illegal purpose and could be used to put someone in danger.

  5. In final matter his role in storing the weapon makes him no less culpable; whether he was the owner or not: R v Mohamad [2005] NSWCCA 204. There is no evidence about the time period the Winchester rifle was in Spinks’ possession but it was kept in an unsecure location. The weapon was not licensed nor registered. Its possession posed a significant risk to the safety of the community.

  6. Firearms if possessed, are liable to be used, and if used, are liable to be a source of great danger or damage. Their possession, even if not then loaded creates a high risk to the safety of the public and arresting officers: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183.

  7. If illegally held firearms are to be used they require ammunition. Spinks had access and admits to his role as an accessory in ‘acquiring’ that ammunition .

  8. Each offence was committed in wilful defiance of the Firearms Prohibition Order served on him. The criminality of breaching such orders rests in the complete disregard for the requirement in the Firearms Act designed to protect the public and the authority of the police tasked with enforcing the Act.

  9. While, as I have noted there was a connection between the possession of the firearms and Spinks’ role in the supply of illicit drugs, I must again take care not to double count this aggravating factor against him.

Motor vehicle offences

  1. For most in the community, who aren’t lucky enough to own a home of their own, a motor vehicle is probably their most expensive possession. To take someone’s motor vehicle deprives them of a considerable and valuable asset. To destroy that vehicle deprives them of it permanently. No one should assume the vehicle is insured but even if it was such actions lead to increases in premiums that are passed on to all.

Hinder police investigation

  1. In 2018 Spinks was living outside of, and showed no regard for, the laws which bind us as a community. He had no compunction in hindering a police investigation into the supplier’s crimes. Acts that interference with the course of justice or hinder an investigation are always regarded as serious by the courts. It is appropriate however that I take into account the seriousness of the offence and the extent the investigation was hindered by Spinks. Here the offence particularised is failing to stop at a random breath stop and speeding away from police leading to a police pursuit; an offence that carries a risk of harm to police and other road users.

  2. It is also relevant to consider the extent to which the investigation was hindered and the conviction of a person for the related “serious offence” is made more difficult. In some cases, as here, the hindering will be relatively unsuccessful because the police were already well aware of and monitoring what was going on. 

Other offences

  1. While I do not sentence for the other matters on the many Forms 1 I must take them into account. Some, as they informed the assessment of the objective seriousness of the offence for sentence, should not have their impact double counted against Spinks to increase sentence.

  2. Some were relatively trivial. I was not aware until now that it was an offence to remove from your own home a lawfully installed listening device. Spinks possession of industrial grade devices used to destroy rocks and the like could, if they had been used by the unqualified or for criminal purposes, resulted in serious harm to others. Knives and knuckle dusters if possessed maybe used, particularly if possessed by a person already involved in drug supply and other criminal activity as Spinks clearly was.

Relevant matter on sentence

Guilty pleas

  1. Guilty pleas to Offence Group #3 were entered in the Local Court requiring reductions of 25% to take into account their utilitarian value: 25D Crimes (Sentencing Procedure) Act 1999 (C(SP)Act). Each indicated sentences for Offence Groups #1, #2 and # 4 will reflect a reduction of 10% as the guilty pleas came after arraignment but before trial. I have tried not to erode the benefit of those pleas when formulating the aggregate sentence.

Criminal antecedents

  1. Spinks, until his murder conviction, did not have a  significant record of convictions for offences of violence but his record of convictions included offences of break, enter and steal (2007 and 2012), weapons offences involving knives (2012, 2018), drug supply (2013), breaching apprehended violence orders (2009) and assault (2008). He also has a fairly bad driving record, including serious driving offences.  Justice Hamill held that while this record “does not aggravate the offending, it does disentitle him to the leniency that would be afforded to him if he was a first offender:” R v Spinks at [49 (2)].

  2. His Honour had the facts in relation to the current matters before him. He took them into account noting:

“The escalation of Mr Spinks’ offending in this period is somewhat out of character when considered against his criminal record before 2018…There is some disentitlement to leniency because it is obvious that Mr Spinks is in a worse position than somebody who has remained crime free in the aftermath of a murder. On the other hand, the offences were part of the same downwards spiral in which the murder of Mr Costello occurred.” at [70] & [71].

  1. While that particular disentitlement to leniency was not, and could not be, quantified I must take care in avoiding any hint that Spinks is being doubly punished when I come to accumulate this sentence on that imposed for the murder.

  2. Spinks had been in custody bail refused since his arrest on 12 July 2018. He served a 3 month sentence backdated to commence in September 2018 for an offence of dishonesty. Justice Hamill back-dated the murder sentence to commence on 12 August 2018; taking into account the principle of totality.

Parity

  1. I have already sentenced others involved in some of Spinks’ criminal activities

  2. For Group #1: I sentenced Warren to an aggregate sentence of four years and two months with a non-parole period of two years and two months. I took into account time he had spent at the Odyssey House drug rehabilitation program and his early guilty plea: R v Warren [2019] NSWDC 820. Gil was sentenced by Judge Turnbull on 30/03/2020 at Parkes DC. I do not have his Honour’s judgment.

  3. For Group #3: Dekker was sentenced to imprisonment of 1 year 10 months to be served by way of an Intensive Corrections Order (ICO). I took into account she has served 4 months custody and her early guilty plea. Kominkovski was sentenced to a term of imprisonment 1 year 6 months to be served by way of an ICO. I took into account he has served 5 months custody and his early guilty plea: R v Dekker; R v Kominkovski [2021] NSWDC 186

  4. Frankcom was sentenced to a term of imprisonment of 2 years 5 months consisting of a non parole period of 12 months. I took into account his early guilty plea and his considerable progress toward rehabilitation: R v Frankcom [2021] NSWDC 294.

  5. Kinzett was sentenced to 1 year and 11 months to be served by way of an ICO. I took into account his early guilty plea, and the efforts made during a long period on bail pursuant to s11 C (SP) Act which demonstrated considerable progress, from a very low base, toward rehabilitation: R v Kinzett [2021] NSWDC 339.

  6. For Group#3: West received an aggregate sentence of five years and two months with a non-parole period of three years and two months. Discounts of 25% and 20% were indicated. West was very young and immature. This was his first adult offending: R v West [2019] NSWDC 838. Williams received an aggregate sentence of three years and eight months with a non-parole period of two years and two months: I took into account a number of important matters, which required a significant reduction in the otherwise appropriate sentence: R v Williams [2019] NSWDC 804.

  7. This sentence must also be determined by having regard to the circumstances of the co-offenders and their respective degrees of culpability – ‘like must be compared with like.’ However, different personal and criminal histories may justify a real difference in the time each will serve in prison: Postiglione v The Queen (1997) 189 CLR 295. This principle is known as parity. It is the classic example of the need to, so far as possible, ensure equal justice: Green v The Queen (2011) 244CLR 462; Afu v R [2017] NSWCCA 246.

Guidance

  1. While every offence and every offender requires individualised treatment courts must in the exercise of their undoubted discretion take guidance from a number of sources. They include; the maximum penalties prescribed for each offence and where applicable any standard non-parole period. Content must be given that standard non-parole period. They also include the decisions of other courts, particularly those designed to give guidance; and of course, the purposes of sentencing, which here importantly include the deterrence of this offender and others from committing similar crimes and proper recognition of the harm done to individual victims and the community.

Form 1 matters

  1. As required by the C (SP) Act I will take each Form 1 matter into account when determining the appropriate penalty for the offences to which they relate: Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002, [2013] NSWCCA 115; (2002) 56 NSWLR 146; and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115, Bathurst CJ at [22]. I do not in any sense impose sentences for the matters on the Form 1: Attorney General’s Application No. 1 at [68.]. The matters on the Form 1 do however operate to increase the sentence that would otherwise be appropriate. The increase recognises the need for personal deterrence and retribution for the crime for sentence: Attorney General’s Application No. 1 at [39] – [42]. However, if I have already taken into account the facts relating to a Form 1 when assessing the objective seriousness of the offence for sentence I cannot double count that matter.

COVID 19

  1. The present crisis has increased apprehension by prisoners about infections in gaols, as it does in the community in general. As a community we are being asked, urged and compelled to self-isolate. This cannot happen in a gaol. Social visits were suspended for over a year reducing any capacity to remain in contact with pro-social friends and family. They have just resumed, only to be stopped again. Access to telephone calls and AVL links has increased but access to programmes and work has been restricted. There are more lock-downs than usual. Prisons have always been violent places but sentencing courts are hearing more and more evidence of tensions in the gaol - the danger is constant and prisoners may never feel safe: Mbele v R [2021] NSWCCA 182

  2. COVID-19 has entered our gaols. Spinks is not eligible for early release: s276(3) Crimes (Administration of Sentences) Act 1999 (NSW). He will have to endure this pandemic and all its restrictions. The future may hold more such difficulties. The restriction of access to basic amenities, the restriction on contact visits, and the heightened anxiety and concern, are relevant factors that must be synthesised along with all other matters.

Subjective case

  1. I received in evidence the same material that was before Justice Hamill. It is not suggested I would make any different finding or that I would reach a different conclusions than his Honour did at [57]-[73].

  2. In brief summary; Spinks was born in 1984. He was 33 years old at the time of the offending. He is now 37 years old. His personal circumstances, and his decline into drug dependence, are set out in three reports: Dr Wearne (2 May 2021) and Dr Furst (3 May 2021) and a supplementary report of Dr Furst (9 May 2021).

  3. On 25 August 2017 Spinks was set upon by a group of three or four men. During the assault, he was stabbed and suffered a serious wound to his abdomen. Justice Hamill accepted Dr Furst’s opinion that an untreated Post Traumatic Stress Disorder was present for about 6 months after this. His methylamphetamine use increased and combined with other incidents preceding the murder resulted in him “becoming emotionally unravelled, highly anxious and most likely paranoid…” His Honour was satisfied that an unusual conglomeration of events, and its impact on the offender’s mental state, reduced Spinks’ moral culpability for the murder.

  4. As to Spinks’ personal circumstances I gratefully accept Justice Hamill’s summary at [64] to [68].

“At the time of the offence, Mr Spinks was living with his partner of eight years and their two children, a son and a daughter. Mr Spinks also has a daughter from a previous relationship. His partner remains supportive of him.

Mr Spinks grew up in a mostly stable home with his mother, father and sister in Unanderra. His parents separated when he was 13 years old. While the offender had a history of behavioural difficulties at school, he was not formally diagnosed with any condition and completed his school certificate before becoming an apprentice painter. He worked as a painter for about seven years but struggled to get work after he lost his license. Mr Spinks has remained unemployed as a result of his drug addiction, drug-related criminal offending and periods of incarceration.

In addition to his PTSD, Mr Spinks has a substance use disorder. At the time of the offence, Mr Spinks was unemployed, had been incarcerated on four occasions between 2012 and 2017 and struggled to cope without resort to drug use. He was reliant on methylamphetamines. He started smoking ice when he was 18 years of age and developed a habit of daily use between the ages of 22 and 27. At the time of the offence, Mr Spinks was smoking ice on multiple occasions each day. This was at least partially a response to his PTSD and its associated symptoms.

Dr Furst’s report notes that Mr Spinks had not seen a psychiatrist or attended a mental health clinic or facility prior to 2013 and has not had the benefit of treatment for his substance abuse. Dr Furst noted that Mr Spinks was “receptive to engaging with support services in the future”. The offender is yet to have access to therapeutic and other drug programs in custody because he is a remand prisoner. However, Dr Wearne notes that the offender “is cognitively minded and a very good candidate for psychological treatment providing he commits to the treatment that he needs”.

  1. Dr Furst reported that Spinks has experienced a number of stressful events whilst in custody. His friend, who he had known since he was 13, was stabbed and killed in the AVL area of Parklea Correctional Centre on 22 April 2020 and another inmate committed suicide in August 2020. Mr Spinks was working as a sweeper at Parklea at the time and was involved in the immediate aftermath of the incident. Spinks witnessed a number of other violent events while in gaol and his mother died in December 2020 while he was on remand. These events exacerbated Spinks’ anxiety and insomnia symptoms and he has become increasingly wary around new cellmates.

Submissions

  1. Mr Fraser, Public Defender, for Spinks and Ms Olender, senior solicitor, for the Director of Public Prosecutions in written and oral submissions both addressed all relevant principles. They did not differ significantly on matters of principle although there were slight difference between them was about how I should address some factual issues. I have sought to address the important aspects of their submissions in this judgement.

  2. In conclusion Ms Olender stressed the importance of separate and condign punishment. Mr Fraser while he accepted that, given their number and seriousness, the present offences must result in some additional penalty submitted that the impact on the murder sentences’ earliest release date, and head sentence, could be limited by the principle of totality.

Totality

  1. While there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively I have to consider in each case whether the sentence for one offence can comprehend and reflect the criminality for the other offence. Where they form part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. If it can, the sentences ought to be concurrent, if not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences: R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41 at [27]: R v XX (2009) 195 A Crim R 38 at [52].

  2. Even where those principles are applied the number and variety of offences here and the requirement they be accumulated on an existing murder sentence poses a more significant practical problem; a simple arithmetical addition would result in ultimate aggregate that exceeds what is called for in the whole of the circumstances.

  3. I must evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so determine what, if any, downward adjustment is necessary in the indicated sentences and importantly the aggregate sentence in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences as accumulated: R v Holder; R v Johnston [1983] 3 NSWLR 245 Street CJ at 260.

  4. In doing so I must also maintain some relativity between the head sentence and its parole period, requiring a finding of special circumstances: s 44(2) C(SP) Act. At the same time I must attempt to ensure public confidence in the administration of criminal justice is not undermined by creating the perception someone who commits a deliberate series of discrete offences can escape effective punishment for multiple offences, which follow successively one upon another throughout a course of a deliberate criminal behaviour: R v Wheeler [2000] NSWCCA 34 at [36]-[37]: R v Harris [2007] NSWCCA 130; 171 A Crim R 267 at [46].

Synthesis

  1. Generally the minimum period for which an offender should be imprisoned should take into account his subjective case but also properly reflect the objective gravity of all his offences. Here that cannot be done without leading to a total sentence out of all proportion to the totality of Spinks’ crimes. I have to recognise that as Justice Hammill succinctly noted; “the offences were part of the same downwards spiral.” Nonetheless, there were so many crimes and so many others in the community were impacted on by them that additional time must be served after Spinks becomes eligible for parole for the murder sentence. It should however be understood by those affected by Spinks’ crimes that each year after already serving 15 years 7 months has a significantly greater retributive impact than a sentence of say, two years, served immediately after arrest: R v Clinch (1994) 72 A Crim R 301 at 306 ; MAK v R [2006] NSWCCA 381. The longer you spend in custody the longer each day seems.

  2. Generally the minimum period for which the offender should be imprisoned should properly reflect the other purposes of sentencing but most of them have been addressed by Justice Hamill’s sentence. The end result here will be an aggregate sentence structured to add another 2 years to the time Spinks must spend in custody before being coming eligible for consideration for release. The aggregate sentence’s non-parole period will subsume and exceed by a few weeks the non-parole period fixed by Justice Hammill but that period will still enable him to be assisted and supervised for over 3 years.

Orders

  1. The indicated sentences reflect reductions for the guilty pleas – see [90] above. Each indicated sentence reflects a reduction for the guilty pleas; 25% for the Group#3 offences - 10% for the others. In some instances I have rounded generally to the offender’s advantage.

  2. The aggregate sentence also reflects a finding of special circumstances.

Indicated sentences:

  1. Supply commercial quantity of prohibited drug MDA – As it carries a standard non parole period I indicate a sentence of 2 years 8 months with a non-parole period of 1 year 4 months.

  2. Receiving stolen motor vehicle – 11 months.

  3. Supply shortened firearm without authority - 3 years 7 months

  4. Intentionally damage/destroy property by fire, motor vehicle, taking into account the Form 1 - 2 years 8 months

  5. Supply the prohibited drug methylamphetamine, taking into account the Form 1 - 3 years.

  6. Acquire ammunition - 1 year 6 months.

  7. Hinder investigation of serious offence taking into account the Form 1 - 9 months.

  8. Possess defaced firearm, 30/30 Winchester lever action rifle, without being authorised to do so, taking into account the Form 1 - 2 years 8 months

Aggregate Sentence

  1. The total aggregate sentence is 7 years 6 months. There will be a non-parole period of 4 years commencing 11 March 2032 and expiring 10 March 2036. The balance of the sentence of 3 years 6 months is to commence upon the expiration of the non-parole period on 11 March 2036 and expiring on 10 September 2039.

  2. You will be eligible for consideration for release to parole at the expiration of the non-parole period on 10 March 2036.

  3. All other Criminal Procedure Act “back up” matters, not the subject of sentences or included in the Forms 1, it is agreed must be withdrawn and dismissed.

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Decision last updated: 02 September 2021

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Cases Citing This Decision

1

R v Porter (a pseudonym) [2022] NSWDC 680
Cases Cited

25

Statutory Material Cited

8

Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Afu v R [2017] NSWCCA 246
R v Barrientos [1999] NSWCCA 1