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R v Spinks

R v Spinks

Case [2021] NSWDC 452 2 September 2021

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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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Spinks

Details

AGLC: R v Spinks [2021] NSWDC 452
Case: [2021] NSWDC 452
Decision Date: 02 September 2021

CaseChat Overview and Summary

In the case before the court, the appellant, Spinks, faced multiple charges related to serious criminal activity. The charges included the supply of a commercial quantity of the prohibited drug MDA, receiving a stolen motor vehicle, supplying a shortened firearm without authority, supplying the prohibited drug methylamphetamine, and possessing a defaced firearm. The case was heard and determined in a relevant Australian court, and the primary focus was on the sentencing of the appellant given the multiplicity of offences. The court was tasked with determining the appropriate sentence, considering the severity and nature of the offences, the need for deterrence and rehabilitation, and the principles of parity and proportionality with co-offenders.

The legal issues before the court were multifaceted. They involved the aggregation of sentences for multiple offences, the application of sentencing principles regarding drug and firearm supply, and the consideration of community safety. The court needed to assess the cumulative impact of the offences, their concurrence, and the extent to which they contributed to the overall criminality of the appellant. Additionally, the court had to balance the need for a punitive response with considerations of deterrence, rehabilitation, and the protection of the community.

The court approached the sentencing process by first examining the totality of the appellant's criminal conduct. It acknowledged the seriousness of the drug and firearm supply offences and their impact on community safety. The court recognised the need for a significant punitive response but also considered the appellant's potential for rehabilitation. The court ultimately determined an aggregate sentence of seven years and six months imprisonment, with a non-parole period of four years. This sentence reflected the cumulative criminality, the need for deterrence, and the principles of parity and proportionality.

The final orders of the court included the imposition of an aggregate sentence of seven years and six months imprisonment, with a non-parole period of four years. This sentence was designed to address the appellant's multiple and serious criminal activities while also considering the broader principles of sentencing in such cases.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

R v Spinks [2021] NSWDC 452

Most Recent Citation

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

Cases Citing This Decision

R v Porter (a pseudonym) [2022] NSWDC 680
Citation 1 (Para 12)

…r the offender. This operation continued until Spinks was arrested on unrelated matters in July 2018: see R v Spinks [2021] NSWSC 649; R v Spinks [2021] NSWDC 452.…

See all citing cases →

Cases Cited

Mbele v R [2021] NSWCCA 182
Citation 1 (Para 104)

…ut 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…
R v Kinzett [2021] NSWDC 339
Citation 2 (Para 99)

…g 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.…
R v Frankcom [2021] NSWDC 294
Citation 3 (Para 98)

…ting 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.…
R v Spinks [2021] NSWSC 649
Citation 4 (Para 1)

…hew 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 allegati…
R v Dekker; R v Kominkovski [2021] NSWDC 186
Citation 5 (Para 97)

…ear 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…
R v West [2019] NSWDC 838
Citation 6 (Para 21)

…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.…
R v Warren [2019] NSWDC 820
Citation 7 (Para 96)

…wo 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.…
R v Williams [2019] NSWDC 804
Citation 8 (Para 21)

…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.…
R v Holder [2019] SASCFC 73
Citation 9 (Para 115)

…e 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.…
Afu v R [2017] NSWCCA 246
Citation 10 (Para 101)

…own 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.…
Jadron v R [2015] NSWCCA 217
Citation 11 (Para 74)

…uantity 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…
R v Glynatsis [2013] NSWCCA 131
Citation 12 (Para 74)

…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].…
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Citation 13 (Para 103)

…nalty 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 m…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 14 (Para 101)

…ueen (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.…
Do v R [2010] NSWCCA 182
Citation 15 (Para 81)

…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.…
Tran v R [2010] NSWCCA 183
Citation 16 (Para 81)

…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.…
R v Harris [2007] NSWCCA 130
Citation 17 (Para 116)

…ch 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].…
Cahyadi v R [2007] NSWCCA 1
Citation 18 (Para 113)

…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].…
R v MAK [2006] NSWCCA 381
Citation 19 (Para 117)

…ter 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.…
Harris v R [2005] NSWCCA 204
Citation 20 (Para 80)

…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…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 21 (Para 103)

…ces 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:…
R v Wheeler [2000] NSWCCA 34
Citation 22 (Para 116)

…tive 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].…
Postiglione v the Queen [1997] HCA 26
Citation 23 (Para 101)

…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…
Mill v The Queen [1988] HCA 70
Citation 24 (Para 3)

…gate 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…

Legislation Cited

Crimes (Administration of Sentences) Act 1999 (NSW)
1 mention (from Para 105)
Crimes (High Risk Offenders) Act 2006 (NSW)
1 mention (from Para 3)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 90)
Crimes Act 1900 (ACT)
1 mention (from Para 6)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 8)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention (from Para 5)
Firearms Act 1996 (TAS)
1 mention (from Para 7)
Summary Offences Act 1988 (NSW)
1 mention
Weapons Prohibition Act 1998 (NSW)
1 mention

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