R v Stanley

[2025] NSWSC 735

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Stanley [2025] NSWSC 735

Hearing dates:

2 – 3, 14 July 2025

Date of orders:

15 July 2025

Decision date:

15 July 2025

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1)   Mr Mark Stanley is convicted.

(2)   Mr Stanley is sentenced to a non-parole period of 8 years’ imprisonment commencing on 29 May 2023, with an additional term of 4 years’ imprisonment. The total term of imprisonment is 12 years, expiring on 28 May 2035. The first date upon which Mr Stanley will be eligible for release to parole is 28 May 2031.

(3) In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to Mr Stanley. I direct that Mr Stanley’s legal representatives advise him of the existence of the Act and its application to this offence.

Catchwords:

CRIME – Sentence – basis of liability “constructive murder” – attempted armed robbery as the foundational offence – discharge of firearm causing fatal wound – multiple disputes of fact – admissibility of voice recognition evidence – ad hoc expertise – repeated listening to telephone intercept product and CCTV footage – confirmation bias – whether reliability a relevant factor to admissibility under s 79 – significantly lesser role than the co-accused –background of deprivation and disadvantage – youth – mental health conditions – interrelatedness of deprived background, mental health conditions and substance abuse – reduced moral culpability – finding of special circumstances

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(e)

Crimes Act 1900 (NSW), ss 18(1)(a), 97(2), 344A

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

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(i), 21A(5AA), 25D(2)(b), 30E(1)

Evidence Act 1995 (NSW), ss 4, 55, 76, 79(1)

Cases Cited:

Aiga v R [2024] NSWCCA 175

BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159

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

Butera v Director of Public Prosecutions(Vic) (1987) 164 CLR 180; [1987] HCA 58

Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

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

Edquist-Wheeler v R [2024] NSWCCA 49

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

Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29

Irani v R (2008) 188 A Crim R 125; [2008] NSWCCA 217

Kelly v R [2016] NSWCCA 246

KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51

Mainwaring v R [2009] NSWCCA 207

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Martino v The King [2024] NSWCCA 93

Mattiussi v R [2023] NSWCCA 289

Nguyen v R (2017) 264 A Crim R 405; [2017] NSWCCA 4

R v Bowie (No 1) (2022) 303 A Crim R 527; [2022] NSWSC 1502

R v Elliott (2006) 68 NSWLR 1; [2006] NSWCCA 305

R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462

R v Leung and Wong (1999) 49 NSWLR 405; [1999] NSWCCA 287

R v Millwood [2012] NSWCCA 2

R v Slade [2005] 2 NZLR 526

R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167

R v Titan Gilkes [2025] NSWSC 23

The Queen v Olbrich (1999) CLR 270; [1999] HCA 54

Wilson v R [2025] NSWCCA 86

Category:

Sentence

Parties:

Rex (Crown)
Mark Charles Stanley (Offender)

Representation:

Counsel:
E Blizard (Crown)
N Broadbent SC with M Davies (Offender)

Solicitors:
Office of the Director of Public Prosecutions (NSW) (Crown)
North & Badgery Solicitors & Barristers (Offender)

File Number(s):

2023/00170926

Publication restriction:

Nil

JUDGMENT

1. Mark Charles Stanley (“the offender”) was born in October 2002. He was 18 years old when Mr Paul Jacques (“the deceased”) was shot and killed. On 8 May 2025, the offender pleaded guilty on indictment to the murder of Paul Jacques.

2. The offender is to be sentenced for one count of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The offence carries a maximum penalty of life imprisonment and a standard non-parole period of 20 years’ imprisonment. The basis of liability is constructive murder, arising out of a foundational offence contrary to ss 97(2)/344A of the Crimes Act, of attempted robbery whilst armed with a dangerous weapon. The foundational offence carries a maximum penalty of 25 years’ imprisonment.

3. The offender entered his plea of guilty nearly two months before his trial was to commence on 2 July 2025. It is agreed, and I accept, that the offender is entitled to a 10% discount for the utilitarian value of his plea: s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”).

4. A co-offender, Titan Gilkes, was sentenced by Hamill J on 7 February 2025 to a non-parole period of 9 years and 6 months with a balance of term of 4 years and 9 months: R v Titan Gilkes [2025] NSWSC 23. In determining the proportionate sentence, his Honour applied a discount of 25% to reflect the utilitarian value of Mr Gilkes’ plea.

5. Although unintended, this was a senseless and tragic killing. The deceased’s brother, Mr George Newman, has provided a victim impact statement in which he describes his brother as a real gentleman who had changed in so many ways for the better. The deceased is described as a “rough nut, but he wasn’t a bad person”. Mr Newman continues to live with the grief and loss of his brother.

6. I have taken into account the victim impact statement pursuant to s 30E(1) of the CSPA.

7. It is appropriate to commence these remarks by acknowledging the life lost. In matters such as this, judges are asked to perform an impossible equation. No human life can ever be equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

8. The sentence I impose does not, and cannot, measure the value of Mr Jacques’ life. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and protection of the community. It must hold the offender to account and reflect the objective seriousness of the offence. It must also reflect the offender's subjective case, his moral culpability, his prospects of rehabilitation, and the likelihood, or unlikelihood, of future offending.

9. The purposes of sentencing require that the offender be punished and held to account for his actions. He will be sentenced to a term of imprisonment. The offender’s sentence to a term of full-time custody goes a long way to fulfilling those purposes. Punishment is not, however, the only purpose of sentencing. 

Circumstances of the Offence

10. Although some of the circumstances relating to the offence are agreed, there are a number of disputed facts. I will set out the agreed facts before addressing the areas of dispute.

11. As already indicated, the offender together with Titan Gilkes have pleaded guilty to the murder of Paul Jacques. Another person, Bradon Madden was also present but has since died and was never charged.

12. The deceased, born in 1963, lived at 46 Gisborne Street, Wellington.

13. Between 1:30am and 2:00am on Monday 2 August 2021, Blaine Stanley (the offender’s cousin) was visiting his brother, Brendan Stanley at a unit on Warne Street, Wellington. The offender sent Blaine Stanley a text message asking for a lift. Blaine Stanley walked to the offender’s home a short time later. When he entered the unit he saw the offender, Titan Gilkes, Bradon Madden, Kade Baxter, and the offender’s then girlfriend Taylee Leighton.

14. The offender said to Blaine Stanley, “Brah, can you drive us around to KFC and just park up the road?” Blaine Stanley responded, “Okay, yeah”. Blaine Stanley understood this request to be that the offender wanted to go to 46 Gisborne Street, Wellington, a drug house colloquially known as “KFC” due to its proximity to the fast-food store of the same name, to buy illicit drugs. This was something that Blaine Stanley had done in the past.

15. At about 3:14am on 2 August 2021, Blaine Stanley drove the offender, Gilkes and Madden to the intersection of Percy Street and Gisborne Street, Wellington. This location was approximately 130 m from the deceased’s home. All three got out of the car. The offender told Blaine Stanley to drive a bit further up Gisborne Street and wait for them. Blaine Stanley remained in the vehicle and drove a further 20 m down the road before conducting a U-turn and parking the car. The vehicle pulled up facing 46 Gisborne Street. The vehicle was therefore located about 150 m away from 46 Gisborne Street.

16. At about 3:15am, the three men walked from the intersection to 46 Gisborne Street and across the front lawn and up to the front porch. They stood on the porch for about 20 seconds. Their movements towards the house and away from the house are captured on CCTV footage. All three men were in the vicinity of the front porch for about 20 seconds. Mr Gilkes was armed with a firearm.

17. The front screen door and solid wooden door were closed. The men attempted to force entry into the house by kicking and pulling on the door. The occupants were alerted by the noise. This conduct establishes the offence of attempted robbery whilst armed with a dangerous weapon.

18. The offender and Madden retreated from the porch to the front lawn and footpath area in front of the house. Gilkes remained on the front porch for a few seconds. Gilkes discharged the firearm into the front door about three seconds after the porch light came on. When the firearm was discharged, Gilkes aimed it downwards at approximately a 45 degree angle, towards the lower half of the front door. The shot travelled through the front screen door and wooden door and struck the deceased in the lower left leg.

19. At the time the firearm was discharged, the deceased was standing 1 to 2 m directly behind the wooden door. Pellets discharged from the firearm pierced the screen door and wooden door before they struck the deceased in his lower left leg, below the knee.

20. Neither Gilkes nor the offender knew anyone was behind the door.

21. As Gilkes ran away he yelled, “Give us all your shit you fucking dog”.

22. The offender, Gilkes and Madden ran back to the car and got in, telling Blaine Stanley to drive. He dropped them off at an address in Wellington which was the home of Gilkes’ girlfriend.

23. One of the occupants of the deceased’s house called 000, saying, “We’ve just tried to get robbed, broken into, something, and my mate’s been shot. Oh my God”.

24. Police and paramedics arrived at the location at about 4:00am. The deceased was taken to Wellington Hospital and then transferred to Orange Hospital for surgery. He died en route to Orange Hospital from cardiac arrest secondary to blood loss from his wound. He was pronounced dead at 7:07am on 2 August 2021.

25. Detectives investigated the matter and on 29 May 2023, nearly 2 years later, the offender was arrested at Wellington Correctional Centre.

26. The offender has been on remand in relation to this matter since 29 May 2023. During the period between 29 May to 15 August 2023, the offender was also serving a sentence for the revocation of an ICO. He has been in custody solely referable to this offence since 15 August 2023.

Disputed facts

27. The extent of knowledge and premeditation regarding the foundational offence is relevant to the role of the offender and the objective seriousness of the offence. Insofar as the Crown relies upon aggravating facts, they must be established beyond reasonable doubt. I cannot take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt: The Queen v Olbrich (1999) CLR 270; [1999] HCA 54 at [27]-[28] (per Gleeson CJ, Gaudron, Hayne and Callinan JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64], [66] (per French CJ, Bell, Keane and Nettle JJ).

28. Insofar as the offender relies upon facts favourable to him, he must establish those on a balance of probabilities.

29. There are several areas of dispute, namely:

1. When the offender became aware that Gilkes was in possession of a firearm?

2. When the agreement to commit the foundational offence arose?

3. What words were spoken prior to the discharge of the firearm and by whom?

4. The significance (if any) of the porch light?

30. Disputed facts (a) and (b) are related and will be addressed together.

31. The dispute as to what words were spoken prior to the discharge of the firearm involves a threshold issue in respect of the admissibility of voice identification evidence by Detective Senior Constable Fitzgerald (the Officer in Charge) (“DSC Fitzgerald”) and Detective Sergeant Glenzendorf (“DSgt Glenzendorf”). Each officer has offered an opinion about the words spoken before and after the discharge of the firearm. Each officer has attributed some of those words to the offender.

32. The words alleged to have been said by the offender are, “Shoot, shoot, shoot, shoot” and “Now pull it”. The representations, if established, demonstrate knowledge that the firearm was loaded and constitute words of encouragement which would increase the objective seriousness of the offender’s role.

33. The offender takes an objection to the evidence of the police officers. The offender makes an application pursuant to s 4 of the Evidence Act 1995 (NSW) (“Evidence Act”), that the rules of evidence apply to the sentencing proceedings in relation to the evidence of DSC Fitzgerald and DSgt Glenzendorf. The Crown does not object to a direction being made pursuant to s 4 of the Evidence Act.

34. Section 4(3) of the Evidence Act provides that the Court must make a direction if (a) a party to the proceeding applies for such a direction in relation to the proof of a fact, and (b) in the court’s opinion, the proceeding involves proof of that fact, and that fact is or will be significant in determining a sentence to be imposed in the proceeding. Section 4(4) provides that the court must make a direction if the court considers it appropriate to make such a direction in the interests of justice.

35. The evidence of the police officers relates to the words allegedly uttered just prior and after the discharge of the firearm and the voice identification of the offender. The proof of those facts will, in my view, be significant in determining the sentence because it is relevant in assessing the role of the offender and the objective seriousness of the offence. It is appropriate to make the direction in the interests of justice. I therefore make a direction that the Evidence Act applies in determining the admissibility and or weight of the evidence of the two police officers.

When did the offender become aware of the firearm and when did he enter the joint criminal enterprise to commit the foundational offence?

36. On behalf of the offender, it is submitted that the evidence supports the offender’s knowledge of the firearm no earlier than the arrival of the group on the front porch of 46 Gisborne Street, with an agreement reached shortly thereafter. In support of that contention, the offender relies upon the fact that the only evidence of discussion occurring before the group got into the car at Warne Street was the request to go to KFC, a known drug house.

37. Secondly, there is said to be no evidence of the presence of a firearm or an agreement to commit the foundational offence at this point. There is no evidence of any discussion in the car as to the reason for attending the address or any conversation following the incident. On behalf of the offender, it is submitted that there are reasonable alternative explanations for the offender’s attendance at the address including the obvious reason, to purchase drugs.

38. The fact that the offender told Blaine Stanley to park up the road from the deceased’s house is said to be equally consistent with the fact that they were engaging in criminal behaviour that was not the foundational offence, namely the purchase of prohibited drugs. The offender also relies upon the order in which the three men came into the CCTV footage, and the way in which Mr Gilkes was holding the firearm, in support of the contention that the offender did not know about the firearm until the men arrived on the porch.

39. I am satisfied beyond reasonable doubt that the offender was aware of the existence of the firearm and had entered a joint criminal enterprise to commit the foundational offence at some stage shortly before leaving Warne Street. I make that finding for the following reasons.

40. Firstly, there is evidence that Blaine Stanley received a text message, prior to attending the offender’s unit, asking for a lift “to somewhere”. I am not satisfied that this text message reveals that at the time it was sent, the offender had already entered into a joint criminal enterprise to commit the foundational offence.

41. However, the offender made two requests of Blaine Stanley to park up the road from the deceased’s house. Just prior to leaving Warne Street, the offender asked Blaine Stanley, “Brah, can you drive us around to KFC and just park up the road?” Blaine Stanley drove to the corner of Gisborne and Percy Street and pulled over. The offender, Mr Gilkes and Mr Madden got out of the vehicle. The offender again directed Blaine Stanley to drive up Gisborne Street a bit further and park and wait for them.

42. These directions are entirely consistent with the offender’s knowledge and participation in the foundational offence. These requests are not consistent with simply going to the house to purchase drugs. This was the early hours of the morning. Any drug transaction would have been conducted inside the house and outside the view of any passerby.

43. Secondly, the car in which the men travelled to Gisborne Street is a small car. There is no evidence about the precise dimensions of the firearm but the CCTV footage reveals that it was a large weapon. Although the offender was seated in the front passenger seat, the firearm would have likely been visible to the occupants of the car.

44. Thirdly, the fact that there was no conversation in the car on the journey away from the deceased’s house reveals an absence of surprise or shock about what had just occurred, consistent with an agreement or plan to attempt an armed robbery.

45. Fourthly, the firearm is clearly visible from the CCTV footage. I do not accept that the way in which it was held by Mr Gilkes obscured it from the view of the offender as the men walked towards the house.

46. Fifthly, the CCTV footage reveals there was some light source in the area from which the perpetrators approached the deceased’s house.

47. Sixthly, as soon as the three men reached the porch, they attempted to gain entry to the premises by kicking at the front door. These actions are consistent with a plan to rob the deceased.

48. Having reviewed the footage, I cannot be satisfied beyond reasonable doubt that the men were wearing gloves. It follows that this is not a matter I have taken into account.

49. Having considered the combination of circumstances, I am satisfied beyond reasonable doubt that the offender was aware of the presence of the firearm and entered into the joint criminal enterprise to commit the foundational offence just before leaving Warne Street and certainly before the men arrived at the deceased’s home.

50. While there was some deliberation involved in the commission of the foundational offence, the planning did not exceed the planning inherently involved in offences of this type. The attempt to commit the armed robbery was unsophisticated and shambolic.

What words were spoken prior to the discharge of the firearm and by whom?

51. The Crown contends that the following words were said by the following speakers (MFI 3):

Female:       Oh fuck!                                     (26 seconds)

Madden:      Pull it brah, pull it ya sick cunt   (28 seconds)

Female:       What’s going on?         

Stanley:       Shoot, shoot, shoot, shoot         (30 seconds)

Madden:      Shoot it and run                         (33 seconds)

Gilkes:         Wait let me…

Stanley:       Now pull it                                  (39 seconds)

Madden:      Pull it         

52. The Crown relies on the asserted ad hoc expertise of DSC Fitzgerald and DSgt Glenzendorf to establish what was said and attribution. The Crown submits that the evidence is relevant and admissible pursuant to s 79 of the Evidence Act. It is a matter for the Court to assess the weight of the evidence having regard to the criticisms made of it.

53. In the event that the evidence is held to be inadmissible, the Crown contends that upon careful listening, it is clear that the words of encouragement were uttered by two different male voices. The only two males present, not holding the firearm, were the offender and Mr Madden. It is said that each was encouraging the discharge of the firearm. It is submitted that it ultimately matters little which precise words were said by the offender.

54. The offender submits that if relevant, the evidence of the police officers is inadmissible pursuant to s 79 of the Evidence Act. The offender submits that the police officers are in no better position than the tribunal of fact to consider the CCTV evidence. In support of the contention that the evidence is inadmissible, the offender relies upon the following.

55. Firstly, the quality of the recording is very poor.

56. Secondly, there can be no confidence that the enhanced voices from the CCTV footage are comparable with voices heard on telephone intercepts by the same police officers.

57. Thirdly, the identification of characteristics of the voice, relied upon by police, is based on the limited evidence of a few words uttered by potentially one of three persons.

58. Fourthly, there is nothing sufficiently discernible from the audio to form a basis for a comparison other than gender.

59. Fifthly, the police officers do not have any expert training in languages or local variations of Australian English.

60. Sixthly, there is a risk of confirmation bias given that DSC Fitzgerald is one of the police officers in charge of the investigation.

61. Seventhly, an argument that the police officers are in a better position than the sentencing judge to decipher the audio does not assist because the Court is entitled to listen to it as many times as the police officers did.

Summary of the evidence on the voir dire

62. DSC Fitzgerald and DSgt Glenzendorf gave evidence before me on the voir dire. I have also had the benefit of two files, an enhanced audio file capturing what was said before and after the discharge of the firearm, and the enhanced version of the CCTV footage (Exhibit C in the sentence proceedings). I have watched and listened to both files on 100 occasions using headphones including, on some occasions, the headphones used by DSC Fitzgerald.

63. In addition, I have been provided with the original CCTV footage (Exhibit G in the sentence proceedings). I have viewed this footage on multiple occasions.

64. The CCTV footage is 56 seconds in duration. Only 20 seconds of that time captures representations made by one or more of the men who attended the deceased’s property. It is the words spoken during those 20 seconds and the identity of the speaker, that is in issue.

65. Three intercept warrants were granted in respect of the mobile service used by the offender. The first warrant (C22073) covered the period between 11 August 2021 and 3 November 2021. A total of 1,067 voice activations were captured.

66. The second warrant (C22087) covered a period between 4 November 2021 and 26 January 2022. A total of 3,567 voice activations were captured.

67. The third warrant (C24318) covered a period between 23 February 2023 and 17 May 2023. A total of 3,312 voice activations were captured.

68. Between 22 January 2022 and 27 June 2022 and between 1 May 2023 and 10 June 2023, the offender used the New South Wales Corrective Services offender telephone system.

69. Between 11 August 2021 and 26 January 2022 and between 23 February 2023 and 17 May 2023, DSC Fitzgerald reviewed a large volume of audio files relating to the offender’s telecommunications handset captured by way of telephone intercept. The duration of the calls were between one second and two hours.

70. During his oral evidence, DSC Fitzgerald conceded that he did not personally listen to all the calls. He was unable to estimate the proportion of the calls that he listened to with any certainty, however stated that he listened to calls daily (probably “a couple of hours a day”) during the periods set out above. In his oral evidence, DSC Fitzgerald said that the majority of the calls he listened to “would have been shorter calls…”.

71. There are no records accurately setting out the number of calls he personally listened to, the duration of those calls, or the amount of time during those calls that the offender was speaking.

72. In DSC Fitzgerald’s statement, he said that when he undertook the process of voice identification, he took into account various characteristics including gender, pronunciation, tone, pitch, speed of speech and accent. However, following his oral evidence, it became apparent that the one characteristic upon which he relied was the “deepness” of the voice identified as the offender’s.

73. Sometime in 2023, DSC Fitzgerald conducted, for the first time, the exercise of transcribing the words purportedly heard on the CCTV footage and attributing identification to the speakers. That transcript is contained at paragraph 50 of DSC Fitzgerald’s statement dated 12 September 2023:

(Banging Noise) Unidentified Female, “Oh fuck”

Bradon MADDEN, “Pull it bra, pull it ya sick cunt”.

Unidentified Female, “What’s going on?”

Mark STANLEY, “Shoot, shoot, shoot, shoot”.

Bradon MADDEN, “Shoot it and run.”

Titan GILKES said, “Wait, let me…” (Sound of an electric chainsaw)

Mark STANLEY, “Now pull it”.

Bradon MADDEN, “Pull it …..…”

(Sound of gunshot)

Titan GILKES yell, “Give us all your shit you fucking dog!”

74. DSC Fitzgerald gave evidence that in October 2021, he was provided with the transcript of the CCTV footage prepared by his colleague, DSgt Glenzendorf. That transcript set out DSgt Glenzendorf’s opinion of what was said on the CCTV footage, attributing particular words to the offender (“DSgt Glenzendorf’s transcript”, Exhibit A on the voir dire). Those words were “Shoot, shoot, shoot, shoot” and “Now pull it”.

75. Prior to receiving DSgt Glenzendorf’s transcript, DSC Fitzgerald had only watched the CCTV footage 5 to 10 times. In total he has reviewed the CCTV footage “at least 50 times”.

76. DSC Fitzgerald gave honest evidence in respect of the use he made of DSgt Glenzendorf’s transcript. He used that document to assist him when he was forming his own opinion and preparing his own transcript. He admitted that he was reading the transcript provided by DSgt Glenzendorf “at the same time” as preparing his own transcript.

77. DSC Fitzgerald maintained that his opinion is based on an independent review of the CCTV footage and comparison of the offender’s voice with the relevant telephone intercept product.

78. When asked whether it might have been better to conduct the task of deciphering the CCTV footage and identifying the voices before obtaining information about the opinion of others, DSC Fitzgerald candidly admitted that that would be:

“… a difficult prospect when you’re working as a small team on an investigation. Like, you’re going to discuss. You always discuss the investigation as it’s ongoing and talk about different features. Like I, yeah. If you’re on the job, anyone would be aware of that transcript, and I’m not going to say I’m not aware of it, because I am aware of it”.

79. DSgt Glenzendorf gave evidence that he prepared the transcript of the CCTV footage and formed an opinion about the words uttered by the offender on 12 October 2021. By 12 October 2021 there were only 135 intercepted calls captured under the authority of warrant C22073. In conducting the comparison exercise for the purpose of purportedly identifying the offender’s voice, DSgt Glenzendorf listened to the 135 calls and reviewed the audio-visual file titled “DLM-OFFICIAL-SENSITIVE-Shooting footage.mp4”. Between 11 August and 12 October 2021, he had reviewed the CCTV footage on no less than 100 occasions.

80. The audio-visual file referred to is the same as that contained in Exhibit C, which I have reviewed on 100 occasions. It is the “stitched together” and “enhanced” version of the CCTV footage.

81. The transcript produced by DSgt Glenzendorf sets out the following (Exhibit A on the voir dire):

CCTV 44 Gisborne Street, Wellington 02/08/2021

File: DLM-OFFICIAL-SENSITIVE-Shooting Footage.mp4

00:26 – (Bang) Unknown Female: “Oh fuck!”

00:28 – Male 1: “Pull it bra, pull it, ya sick cunt.”

00:30 – Unknown Female: “What’s going on?”

00:31 – Mark STANLEY Jnr: “Shoot, shoot, shoot, shoot.”

00:33 – Male: “Shoot it and run.”

00:37 – Male 2: “Wait let me….” (Sound of electric chainsaw).

00:39 – Mark STANLEY Jnr: “Now pull it.”

00:40 – Male 2: “Oi cunt.”

00:42 – (Sound of gunshot)

00:44 – Unknown male: “Oh fuck!”

00:45 – Unknown Female: “Hey!”

00:46 – Male 2: “Give us all your shit, you fucking dog!”

82. Although there are minor differences, the transcript prepared by DSC Fitzgerald is relevantly identical to that prepared by DSgt Glenzendorf.

83. DSgt Glenzendorf gave evidence that although 1,067 voice interception products were captured under the first warrant, they are not necessarily unique calls because the system can duplicate or triplicate the same intercepted call. Between 11 August 2021 and the production of his transcript, DSgt Glenzendorf listened to the offender’s calls each day that he was working. He gave evidence that he spent about a quarter of his working days listening to the calls.

84. The characteristic that allowed DSgt Glenzendorf to identify the offender’s voice was the deepness of the voice. He gave evidence that “his voice did have a more deeper tone to it than I expected it to have”, given the offender’s age and physical appearance.

85. When he produced the transcript, he was unable to attribute the identity of the other speakers. DSgt Glenzendorf continued to review telephone intercept material in 2021 and 2022. He maintained his opinion as to the accuracy of the transcript (including attribution) produced in October 2021.

86. In cross-examination, DSgt Glenzendorf conceded that when he transcribed the material there were other police officers present in the investigation room. When asked whether they offered any opinions about what was said, he responded, “They would have, yes”. DSgt Glenzendorf strongly disagreed with the proposition that his transcript was not the product of his independent opinion.

87. As at October 2021, the police had a statement from Blaine Stanely identifying the people who attended the deceased’s premises including the offender.

Consideration

88. It is the agreed position that neither police officer has specialised knowledge based on training or study. Instead, the Crown relies upon asserted “ad hoc expertise”, based upon the police officers’ experience in repeatedly listening to telephone intercept product capturing the voice of the offender and comparing it to the voice captured on the CCTV footage of the offence.

89. The evidence of DSC Fitzgerald and DSgt Glenzendorf, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings, namely what was said immediately before the discharge of the firearm by way of encouragement and by whom: s 55 of the Evidence Act. It is therefore relevant evidence.

90. Section 76 of the Evidence Act provides that evidence of an opinion is not admissible to prove the existence of the fact about the existence of which the opinion was expressed. The Evidence Act provides exceptions to this rule.

91. The question of the admissibility of the opinions of DSC Fitzgerald and DSgt Glenzendorf involves a consideration of s 79 of the Evidence Act, which relevantly provides:

79 Exception: opinions based on specialised knowledge

(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.

…

92. There are two limbs to s 79(1): first, that the person has specialised knowledge based on their training, study or experience, and, second, that the opinion proffered is based wholly or substantially on that knowledge.

93. In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, Heydon JA said at [85]:

“In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v R (1999) 197 CLR 414, on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise” (at [41]).”

94. In Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, the Court relevantly said, at [37] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ):

“It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita, that "the expert's evidence must explain how the field of 'specialised knowledge' in which the witness is expert by reason of 'training, study or experience', and on which the opinion is 'wholly or substantially based', applies to the facts assumed or observed so as to produce the opinion propounded". The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying "specialised knowledge" based on his or her "training, study or experience", being an opinion "wholly or substantially based" on that "specialised knowledge", will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.” (Footnotes omitted.)

95. The question as to whether the Court should consider the reliability of the evidence in determining its admission under s 79 of the Evidence Act, was answered in R v Tang (2006) 65 NSWLR 681; [2006] NSWCCA 167 by Spigelman CJ (Simpson and Adams JJ agreeing), at [137]:

“The focus of attention must be on the words “specialised knowledge”, not on the introduction of an extraneous idea such as “reliability”. (Cf Velevski v The Queen (2002) 76 ALJR 402 at [82], [154]-[160]; Perpetual Trustee Co Ltd v George NSWSC 19 November 1997 per Einstein J (unreported); Idoport Pty Ltd v National Australia Bank Limited [1999] NSWSC 828 at [242]; Odgers Uniform Evidence Law (6th Ed) at par 1.3.4260; Freckleton and Selby Expert Evidence: Law, Practice, Procedure and Advocacy (3rd Ed) at 97-98; Anderson, Hunter and Williams The New Evidence Law (2002) at 246.)”

96. In R v Bowie (No 1) (2022) 303 A Crim R 527; [2022] NSWSC 1502, I summarised the principles applicable to the admission of expert evidence under s 79 as follows:

“[43] A failure to demonstrate that an opinion expressed by a witness is founded on the witness’s specialised knowledge based on their training, study or experience is a matter that goes to the admissibility of the evidence, not its weight: Honeysett at [42].

[44] As for what is meant by specialised knowledge, in Honeysett, the Court stated at [23] (footnotes omitted):

‘…‘Specialised knowledge’ is to be distinguished from matters of ‘common knowledge’. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience. However, the person’s training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines ‘knowledge’ as ‘acquaintance with facts, truths, or principles, as from study or investigation’ (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J’s formulation in Daubert v Merrell Dow Pharmaceuticals Inc: ‘the word ‘knowledge’ connotes more than subjective belief or unsupported speculation. … [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds.’’

…

[46] Section 79 does not refer to a field of expertise, but rather “specialised knowledge based on training, study or experience”. The question as to whether specialised knowledge requires an independent means of gauging the reliability and validity of an opinion based on that knowledge, was not decided in Honeysett. Instead, the Court held that “in light of the concession [by the respondent] … Professor Henneberg’s specialised knowledge was confined to anatomy, the appeal does not provide the occasion to consider the appellants larger challenge respecting the requirement of an independent means of validation before an opinion may be found to be based on ‘specialised knowledge’”: at [42].

…

[48] In Tuite v The Queen [2015] VSCA 148 (“Tuite”), the Victorian Court of Appeal, dismissing the appeal, held that the language of s 79(1) of the Evidence Act 2008 (Vic) left no room for reading in a test of evidentiary reliability as a condition of admissibility. Section 79(1) contains its own specification of the requisite foundation of the witness’s ‘knowledge’, namely, that the knowledge must be based on the person’s training, study or experience.

…

[50] The Court in Tuite concluded, at [77]:

‘It follows, in our view, that a person’s knowledge may qualify as ‘specialised knowledge’ for the purposes of s 79(1) even if the area of knowledge is novel or the inferences drawn from the facts have not been tested, or accepted, by others. The position would have been different if, instead, s 79(1) had provided that an opinion was only admissible if shown to be based on a ‘reliable’ or ‘established’ body of knowledge. No such language was used, however, and the legislative history makes clear that this was a deliberate legislative choice.’

…

[58] In Tuite, although the Court held that s 79(1) of the Evidence Act left no room for reading in a test of evidentiary reliability as a condition of admissibility, the Court strongly emphasised that the touchstone of reliability for scientific evidence must be trustworthiness, and trustworthiness depends on validation.

[59] Rigorous assessment of evidentiary reliability when expert opinion evidence is proposed to be called, is a matter of first importance to the integrity and fairness of the criminal justice system. The question of the reliability of opinion evidence fell to be determined not under s 79(1), but rather as part of the assessment which the Court undertook for the purposes of s 137 of the Evidence Act: see Tuite at [10] and [82].

[60] Far from excluding an assessment of reliability when considering the admissibility of expert evidence, the Court in Tuite went to great lengths to emphasise the importance of a vigorous assessment of evidentiary reliability when expert opinion evidence was to be called. The Court held that the touchstone of reliability for scientific evidence was trustworthiness, which depended on validation. Ideally, there should be proof of both in-house validation, and independent external validation: see [101]-[102].

[61] Of course, the Court was deciding the issue prior to the decision of IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 (“IMM”), in which the High Court held [at 54]:

‘…The Evidence Act contains no warrant for the application of tests of reliability or credibility in connection with ss 97(1)(b) and 137. The only occasion for a trial judge to consider the reliability of evidence, in connection with the admissibility of evidence, is provided by ss 65(2)(c) and (d) and 85. It is the evident policy of the Act that, generally speaking, questions as to the reliability or otherwise of evidence are matters for a jury, albeit that a jury would need to be warned by the trial judge about evidence which may be unreliable pursuant to s 165.’

…

[63] IMM left open the possibility that an assessment of the “reliability” of evidence may be permissible as part of the enquiry into the “danger of unfair prejudice” under s 137: at [57].”

(Footnotes omitted.)

97. The admissibility of opinion evidence acquired by repeated listening to recordings has often been referred to as “ad hoc expertise”. In Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58, Dawson J said, at 195:

“Of course, some modes of proof are better than others, but that, save in the case of written documents, goes to weight rather than admissibility. Relevance is the ordinary test of admissibility, although in criminal cases the trial judge has a discretion to exclude relevant evidence if it operates unfairly against the accused as it does when its prejudicial effect outweighs its probative value or on grounds of public policy when it has been unlawfully or unfairly obtained. The production and playing of an original tape recording remains the best means of proof of its contents, at least where it is audible, intelligible and the words used are in the English language. Where it is inaudible or unintelligible, expert evidence of its contents may be required and it has been held that an ad hoc expertise may be acquired by a witness by playing and replaying a tape so as to become more familiar with its contents than could be done by playing it only once or twice: Hopes v. Her Majesty's Advocate (1960) JC 104; (1960) SLT 264. See also Reg. v. Menzies (1982) 1 NZLR 40. If a tape records a conversation which is not in English, then expert evidence in the form of a translation will be required. Even in these instances, although what was said cannot be proved merely by playing the tape in court, the original tape should be produced or its absence satisfactorily explained. Failure to do so may impugn the evidence given of the tape's contents and provoke, at the least, adverse comment.” (Emphasis added.)

98. “Ad hoc expert” evidence relating to voice identification where an opinion has been formed following repeated listening to recorded conversations may constitute specialised knowledge under s 79 of the Evidence Act: R v Leung and Wong (1999) 49 NSWLR 405; [1999] NSWCCA 287; Irani v R (2008) 188 A Crim R 125; [2008] NSWCCA 217; Nguyen v R (2017) 264 A Crim R 405; [2017] NSWCCA 4.

99. In Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29, the High Court did not determine the question of whether, in order to constitute an area of specialised knowledge, there must be an independent means of gauging the reliability and validity of the opinion based on that knowledge. It was not necessary to do so in that case because of the concession that Professor Henneberg’s specialised knowledge was confined to anatomy.

100. On the present state of the law, I am bound to accept that for the purpose of s 79 of the Evidence Act, an expert witness can be one who has acquired his or her specialised knowledge ad hoc, including from repeatedly listening to voice recordings to form an opinion about voice identification. It is not appropriate in these remarks on sentence, to comment on the correctness of that view, save to say it has been accepted in the cases cited above.

101. However, I must be satisfied that on the evidence adduced in the present case, each opinion relied upon meets the requirements of s 79. Put another way, the opinion must be based wholly or substantially on the specialised knowledge which in turn must be based on the witness’s experience.

102. I am not persuaded that the opinion expressed by DSC Fitzgerald is an opinion that is wholly or substantially based on specialised knowledge. Notwithstanding the fact that the officer maintained that his transcription and attribution is based on an independent review of the material, that simply cannot be the case.

103. In making that determination, I am not of the view that the officer was dishonest in his evidence but rather that he has failed to appreciate the real risk that his opinion has been irrevocably influenced by having had access to the transcript prepared by DSgt Glenzendorf to assist him in his task of deciphering the CCTV footage and purporting to identify the voice of the offender.

104. DSC Fitzgerald made no attempt to conduct those tasks independently, that is, prior to accessing the transcript of his colleague. The importance of an independent assessment of the material is a matter that was accepted by the parties in this case. Upon filing the material relevant to the disputed fact hearing, the parties requested that I listen to the CCTV footage before I had regard to the transcripts prepared by the police officers.

105. That request was made, appreciating the importance of an independent assessment of the material and recognising the significant adverse impact of “confirmation bias”. That term describes a situation where a person is inclined to interpret evidence in a manner consistent with their expectation rather than an independent review. It is akin to the displacement effect often referred to in visual identification evidence.

106. In the present case, DSC Fitzgerald’s use of the transcript produced by DSgt Glenzendorf, to assist him in preparing his own transcript and attribution of the offender’s voice, is not a matter that simply goes to the weight of the evidence. It is a matter which is highly relevant to the admissibility of the evidence because I cannot be satisfied that the opinion of DSC Fitzgerald, (both in respect of deciphering the words and attribution) is based wholly or substantially on specialised knowledge, based on his experience, as opposed to being based on the conclusions reached by his colleague.

107. It follows that the evidence of DSC Fitzgerald at paragraph [50] of his statement dated 12 September 2023 is not admissible.

108. I turn to consider the admissibility of the evidence of DSgt Glenzendorf. His evidence is not subject to the same criticism. This officer conducted an independent review of the telephone intercept material and the CCTV footage in preparing his transcript. The opinions he reached on 12 October 2021 were based on a limited listening to the material. Although he had reviewed the CCTV footage about 100 times, he had only listened to 135 intercepted telephone conversations.

109. A statement prepared by DSC Fitzgerald, signed on 14 July 2025, and provided after oral submissions, states that in relation to intercept warrant C22073 between 11 August and 12 October 2021, the 135 audio calls range in duration from 1 second through to 6 minutes 19 seconds. 26 audio calls involved the offender. They ranged in duration from 6 minutes 19 seconds to 17 seconds. In total those calls amounted to 40 minutes and 13 seconds.

110. Of the 135 audio calls, 32 are duplicates and 1 call has no audio. The remainder of the calls were unanswered.

111. Had DSgt Glenzendorf’s evidence been limited to his review of the relevant calls between 11 August and 12 October 2021, I would not have been satisfied that the requirements of s 79 were met. However, the officer continued to review telephone intercept product in 2021 and 2022. He has maintained his opinion as to the accuracy of the transcript prepared and the attribution of the words to the offender.

112. I find that his evidence is admissible pursuant to s 79 of the Evidence Act. However, the evidence of DSgt Glenzendorf is of little weight. The opinion he maintained in evidence before me is subject to confirmation bias because there is a real risk that all he was doing when giving evidence before me was maintaining an opinion that he had reached on 12 October 2021, an opinion arrived at on review of limited material.

113. Secondly, the comparison conducted was between telephone intercept product capturing conversations over the phone and the CCTV footage, which contained only 20 seconds of conversation. The representations were uttered at a time when the men were moving away from the deceased’s home. The quality of the audio is poor. The only characteristic referred to by the witness that assisted in the process of identifying the offender’s voice was its “deepness”.

114. Thirdly, I have watched and listened to the CCTV footage 100 times. The deepest voice is that of the person who spoke last, which is said to be Mr Gilkes.

115. Having conducted the exercise of repeatedly watching and listening to the CCTV footage, I am not satisfied beyond reasonable doubt that the words of encouragement are uttered by two different male voices. I simply cannot make that determination to the requisite standard having regard to the poor quality of the audio in the CCTV footage.

116. It follows that I am not satisfied beyond reasonable doubt that the offender uttered any of the words of encouragement.

117. For completeness, the third area of dispute, namely as to how the porch light was switched on, has little if any significance. I am satisfied that the porch light was switched on seconds before the firearm was discharged.

Objective Seriousness

118. The offender is criminally responsible for the murder of the deceased on the basis of constructive murder. There is no general rule that cases of constructive murder are necessarily less serious than other cases of murder or that they will attract a lesser penalty: R v Jacobs and Mehajer (2004) 151 A Crim R 452; [2004] NSWCCA 462 at [332] (per Wood CJ at CL, Sperling and Kirby JJ agreeing). Each case must be decided according to the circumstances of the offending and the offender’s role in the events that cause the death of the deceased.

119. Clearly, this offender did not have an intention to kill or cause grievous bodily harm to the deceased.

120. I proceed to sentence the offender on the basis that he entered into an agreement to commit the foundational offence and that he knew that Mr Gilkes was armed with a firearm, just before the men left the Warne Street address. I am not satisfied that the offender uttered any words of encouragement to discharge the firearm.

121. Unlike Mr Gilkes, the offender was not armed with a weapon. He did not discharge the firearm. There is no evidence that the offender sourced the firearm or devised the plan to rob the deceased. None of the men were aware that the deceased was behind the door. I am satisfied that this offender’s role in the offence is significantly lower than that of Mr Gilkes.

122. While some deliberation was involved in the commission of the foundational offence, the degree of planning was no more than that inherently involved in offences of this type. The execution of the agreement was unsophisticated and, as previously stated, shambolic.

123. An aggravating circumstance is the fact that the offence was committed at the home of the deceased. The deceased was entitled to feel safe and secure in his own home.

124. Considering the very wide range of conduct that may constitute an offence under s 18 and having regard to the offender’s role, I am satisfied that the offence falls towards the lower end of the range, but not at the lowest end of the range, of objective seriousness.

125. The maximum penalty and standard non-parole period are relevant legislative guideposts. I intend to depart from the standard non-parole period by a significant degree because the offender has pleaded guilty and the offence falls towards the lower end of the range of objective seriousness.

Breach of conditional liberty

126. The offender was subject to conditional liberty at the time he committed the offence. He was dealt with in the Children’s Court on 12 April 2021 for an offence of affray. A probation order was issued pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW).

127. Notwithstanding the fact that the conditional liberty was probation imposed in the Children’s Court, the fact that the offender was subject to that conditional liberty is an aggravating factor.

Subjective case

128. The offender tendered a report of Ms Lucienne Barhon, Clinical Neuropsychologist dated 16 June 2025. Ms Barhon assessed the offender on 20 May 2025. The offender also relied on an affidavit of his mother affirmed on 7 May 2025.

129. The offender was raised in Wellington and described his early home life as “unstable and negative”. Both his parents were drug addicts and drug dealers for most of his childhood. He recalled that his parents were often intoxicated and there were lots of strangers passing through the house. The offender’s mother reported using heroin and speed until 5 months into her pregnancy with the offender.

130. The offender witnessed frequent domestic violence perpetrated by his father towards his mother. The offender was visibly distressed when recalling this history to Ms Barhon. The offender described his father as a drug addict with a gambling problem, who would often return home and lash out by physically assaulting his mother. This occurred on an almost daily basis. The offender’s mother described the relationship as “very violent”. The offender’s father was never physically violent towards him and his siblings but often yelled at them and “traumatised them through allowing them to witness the violence perpetrated towards their mother”. The offender’s mother left the relationship when the offender was 9 or 10 years old.

131. The offender’s mother moved a few blocks away from his father with all six children. For some time after, the offender’s father would come to their house yelling and attempting to enter. The offender has had a tenuous relationship with his father since and has been reluctant to forgive him.

132. From year 1, the offender was placed in a special support class for children with behavioural or learning problems. The offender’s behaviour was highly volatile, “likely related to difficulties coping with his maladaptive home environment”. The offender was suspended several times during years 5 and 6 due to behavioural issues such as engaging in fights. The offender only attended up to year 7 before he disengaged from school.

133. When the offender was approximately 11 years old, his mother was arrested and incarcerated for a period of time. Her criminal record reveals that she was incarcerated from 29 July 2014 until 27 November 2015, a period during which the offender was aged 11 and 12 years old. The offender and his siblings resided with their maternal grandparents. The offender remained there for only 12 months before he began running away, as he disliked how strict his grandparents were compared to his parents.

134. From the age of 13, the offender had disengaged from school and his family, turning to a lifestyle that “revolved around substance abuse and crime”. For the remainder of his adolescence, the offender resided with his long-term girlfriend in between brief periods of incarceration.

135. Ms Barhon opines that the offender’s history is “clearly one of significant disadvantage and maltreatment”. Ms Barhon observes that this included repeated exposure to domestic violence, inconsistent parental supervision, substance abuse and criminal activity within the home environment, and instability in his living situation.

136. The offender’s mother served periods of imprisonment in 2017 and 2018, during which time the offender was 15 years old. Following her release from custody, the offender, his then-girlfriend and their infant child moved in to live with her. The offender has two children with his girlfriend at the time, aged 6 and almost 4 years old respectively. Approximately 3 years ago, the offender’s relationship with his girlfriend broke down. The offender’s children remained living with the offender and his mother until his arrest in early 2023.

137. The offender reported that his ex-partner became a heavy alcohol user and has had no contact with their children for some time. The offender’s mother has been the sole carer for his children since he entered custody. The offender continues to speak with his children every day and they visit him regularly.

138. The offender has never held formal employment. He commenced regularly using cannabis at the age of 12 and began smoking ice daily from the age of 14. The offender reported binge drinking fortnightly and occasionally used cocaine in combination with other substances. The offender has “resorted to crime to maintain his drug habit”. At the age of 16 or 17, he briefly attended a residential rehabilitation program after being released from custody but absconded after a few weeks.

139. The offender conveyed a long history of significant symptoms of psychological distress. He reported “having historically used alcohol and illicit substances as a maladaptive means of coping with his psychological distress”, helping to “block off” intrusive and depressive thoughts.

140. The offender reported multiple episodes of severely depressed mood with suicidal ideation and has made three attempts to end his life, once when he was 15 years old and twice since entering custody. Ms Barhon notes that the offender’s depressed mood has been exacerbated by his incarceration and that “[p]art of this distress related to recurrent thoughts about the index offence and his feelings of sadness and remorse for what had occurred”. The offender became visibly upset when recounting this history and has had recurrent distressing thoughts about the offending.

141. The offender reported difficulty with sleep, intrusive thoughts and worry. He has had nightmares about traumatic incidents from his childhood as well as re-living the offending. The offender reported ongoing symptoms of depression, anxiety and stress. He conveyed feelings of worthlessness, a tendency to be hypervigilant and overreact, and being more easily agitated.

128. Ms Barhon opines that the offender’s history is consistent with Substance Use Disorder and that he meets the diagnostic criteria for both Post-Traumatic Stress Disorder (PTSD) and Major Depressive Disorder. Ms Barhon observes as follows:

“Mr Stanley conveyed a history of significant disturbance in mood and behaviour dating back to early childhood in response to persistent maltreatment including exposure to physical and verbal abuse, substance abuse and other antisocial behaviour, as well as experiencing instability in his home environment. This appears to have adversely impacted his education. Mr Stanley conveyed a notable worsening in his mental health since the index offence (August 2021) due to significant distress related to the index offending as well as other situational stressors such as the breakdown in his long-term relationship (with the mother of his two children). Nevertheless, Mr Stanley also conveyed experiencing significant psychological distress for many years prior to this, which he had attempted to self-medicate using alcohol and illicit substances. It is noted Mr Stanley also described having first attempted to end his life at 15 years of age due to overwhelming distress related to recurrent thoughts related to childhood trauma”.

143. Ms Barhon opines that the offender’s substance use disorder was a contributing factor to the offending. She notes that his substance use disorder is “tied to his maladaptive coping mechanisms, which have seemingly resulted from his childhood disadvantage and trauma, which also contributed to his development of depression and PTSD”. Ms Barhon opines that the offender’s longstanding mental health issues are therefore considered to have contributed to the offending.

144. Pursuant to s 21A(5AA) of the CSPA, self-induced intoxication is not a mitigating factor in sentencing. However, evidence of past trauma, a background of deprivation and disadvantage, related substance abuse, and expert evidence about mental health conditions such as substance abuse disorder, are relevant to an offender’s subjective case. These factors may materially impact on a sentence, including in the reduction of moral culpability: R v Millwood [2012] NSWCCA 2 at [69] (per Simpson J, Bathurst CJ and Adamson J agreeing); Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]-[44]. It has also been recognised that where substance abuse is inextricably tied to an offender’s deprived background, it may not be a matter of voluntary choice so as to be described as “self-induced”: Kelly v R [2016] NSWCCA 246 at [46]-[50] (per Rothman J, Hoeben CJ at CL and R A Hulme J agreeing); Aiga v R [2024] NSWCCA 175 at [98] (per N Adams J, Ierace and Sweeney JJ agreeing).

145. In Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”), McClellan CJ at CL summarised the principles to be applied in sentencing where an offender suffers from mental health conditions at [177] as follows:

“● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 – 51; Israil at [22]; Pearson at [42]; Henry at [28].

● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

● Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].”

146. The offender was 18 years old at the time of offending. Although an adult, the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence. Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult: KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51 at [22]-[26] (per McClellan CJ at CL).

147. In BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159, Hodgson JA observed (at [5]) that although considerations relevant to a person’s youth diminish the closer the offender approaches the age of maturity, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid-twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott (2006) 68 NSWLR 1; [2006] NSWCCA 305 at [127]. As shown by R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

148. The offender’s moral culpability is reduced by a combination of his youth and immaturity, his disadvantaged upbringing (which includes a history of substance abuse from a very early age) and mental health issues. I agree with a submission made on his behalf that the offender’s mental health issues, intellectual issues and immaturity cannot be sensibly disentangled from the deprivation suffered as a child. Each factor, in combination, has compromised his ability to mature and learn from experience and therefore reduces his moral culpability.

149. I am also satisfied that by reason of a combination of his mental health issues and deprived background, the weight to be afforded to denunciation and general deterrence is less. His relative youth requires greater weight to be placed on rehabilitation. Further, the offender’s mental health issues and attempts at self-harm are factors that will make conditions in custody more onerous.

Remorse

150. Section 21A(3)(i) of the CSPA provides that the Court can take into account as a mitigating factor the remorse shown by the offender for the offence, but only if (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

151. In her report, Ms Barhon stresses the offender’s remorse with respect to the offending, noting that the offender has experienced ongoing distressing intrusive thoughts about the offending and overwhelming feelings of sadness, anxiety and guilt. The offender reported deep regret, guilt and sadness as to the harm caused to the deceased. The offender also accepted responsibility for his role in the offending.

152. The offender provided a letter to the Court dated 26 June 2025. In it, he said:

“I feel so bad about what happened. I never intended anybody to get hurt. If I could change the past I would, but I can’t and I just have to live with it.”

153. The offender also pleaded guilty to the offence, albeit not at the first opportunity. In a case of constructive murder, and particularly in the circumstances of this case, the offender’s failure to plead guilty at an earlier point is not a matter that demonstrates an absence of remorse.

154. I am satisfied given all of the evidence, that the offender has demonstrated remorse by an acceptance of responsibility and acknowledgement of the harm done.

Purposes of sentencing

155. Section 3A of the CSPA provides:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

156. For the reasons set out above, I have reduced the weight to be afforded to general deterrence and denunciation. Rehabilitation remains a relevant and weighty consideration given the offender’s relative youth.

157. The offender has a criminal history, largely for offences dealt with in the Children’s Court. That criminal history operates to deprive the offender of leniency but is not an aggravating factor.

158. Although the custodial environment has enabled the offender to remain abstinent from alcohol and illicit substances, he has previously abused illicit drugs as a means of self-medication to stave off significant psychological distress. His history of substance abuse, mental health, criminal offending and the seriousness of the offence for which I have to impose sentence, result in a finding that his prospects of rehabilitation are guarded. However, he is still a relatively young man. I am hopeful that with therapeutic input from a clinical psychologist and guidance in developing better coping strategies, the offender’s prospects of rehabilitation will be enhanced.

159. Without these supports, he is likely to reoffend.

160. Notwithstanding the mitigating impacts of the offender’s background and personal circumstances, the combination of the offender’s history of substance abuse, his disadvantaged background and his mental health conditions, requires that appropriate weight to be afforded to specific deterrence and the protection of the community.

Parity

161. In determining the appropriate penalty, I have had regard to the principle of parity. Principles relating to parity are well-established and were recently summarised in Ooi v R [2023] NSWCCA 97 at [22]-[27] (per Beech-Jones CJ at CL and N Adams and Yehia JJ):

“[22] Firstly, the parity principle is an aspect of equal justice which requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them: Postiglione v The Queen (1997) 189 CLR 295 at 301–302; [1997] HCA 26 (Postiglione) (Dawson and Gaudron JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 (Green) at [28]–[29].

[23] Secondly, the parity principle holds that there should not be a disparity, or “marked disparity”, between the sentences imposed on co-offenders such as to give rise to “a justifiable sense of grievance in one of them”: Lowe v The Queen (1984) 154 CLR 606 at 610; [1984] HCA 46 (per Gibbs CJ, Wilson J agreeing at 616, Mason J at 612–613 and Dawson J at 623).

[24] Thirdly, the sense of grievance complained of when the sentence for one offender is compared relative to that of the co-offender or co-offenders, is to be assessed objectively and governed by considerations of substance rather than form: DS v R [2014] NSWCCA 267 (DS) at [39]. It is an aspect of the parity principle that it is not just concerned with identical outcomes in cases that “are relevantly identical”. It also seeks “different outcomes in cases that are different in some relevant respect”: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [65] (Gaudron, Gummow and Hayne JJ); Dawson (a pseudonym) v R [2021] NSWCCA 33 at [79]–[80].

[25] Fourthly, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed at first instance: Moran v R [2022] NSWCCA 217 at [29] (per Beech-Jones CJ at CL, Price and Yehia JJ agreeing at [41]–[42]). An appeal on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary Judge in drawing distinctions between co-offenders: see Green at [31]–[32].

[26] Fifthly, this Court has previously noted that “considerable obstacles” are placed before an applicant contending error, on the basis of parity, where a sentencing Judge is fully aware of the sentences imposed upon co-offenders and provides reasons for departing from those sentences: see Chamon v R [2020] NSWCCA 112 at [35]–[37] (per RA Hulme J, Hamill and Wilson JJ agreeing); Tatana v R [2006] NSWCCA 398 at [28] (per Howie J, Sully and Latham JJ agreeing).

[27] Sixthly, where the same Judge hears the sentence proceedings of two (or more) co-offenders, he/she is “in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”: see Huckstadt v R [2016] NSWCCA 22 at [90].”

162. As indicated at the outset of these remarks on sentence, the offender’s co-offender, Mr Gilkes, was sentenced by Hamill J on 7 February 2025 to a non-parole period of 9 years and 6 months’ imprisonment, with a balance of term of 4 years and 9 months: R v Titan Gilkes [2025] NSWSC 23.

163. A 25% discount was applied in sentencing Mr Gilkes, to reflect the utilitarian value of his early plea of guilty. The starting point of the sentence was therefore 19 years’ imprisonment.

164. Mr Gilkes was in possession of and discharged the firearm. For the reasons comprehensively set out above, I am satisfied that this offender’s role was significantly less than Mr Gilkes.

165. Mr Gilkes’ moral culpability was reduced due to exposure to drugs, violence, crime and neglect during his childhood. He had developed PTSD, substance use disorder and depressive disorder and suffered from cognitive impairment. No positive finding was made in relation to his rehabilitation and Hamill J was not satisfied that Mr Gilkes was truly remorseful or acknowledged the damage caused by his actions.

166. Ultimately, the subjective cases of the offender and Mr Gilkes do not significantly differ, except insofar as I find that this offender is genuinely remorseful.

167. Although Mr Gilkes was entitled to a higher discount to reflect the utilitarian value of his early plea, the significantly lesser role of this offender requires that a lesser term of imprisonment be imposed. This offender was not in possession of the firearm. He did not discharge the firearm. I cannot be satisfied that he uttered words of encouragement prior to the discharge of the firearm. The offender was not aware that the deceased was in the vicinity of the front door. He did know of the deceased’s location let alone intended his death or serious injury.

168. The circumstances pertaining to this offender are somewhat unusual in the case of constructive murder. In addition, the offender’s moral culpability is reduced for the reasons set out above.

169. I am mindful that the sentence I impose must be a proportional one, reflecting the criminality which involved a loss of human life. Neither party has relied upon “comparable cases”, acknowledging that the relevant comparator is the sentence imposed on Mr Gilkes.

170. The starting point of the sentence I will impose on Mr Stanley is appreciably lower than the starting point in the case of Mr Gilkes. I have had regard to the principle of parity and determine that the sentence I impose must reflect this offender’s significantly lesser role.

Special circumstances

171. I am satisfied that special circumstances exist warranting a variation of the statutory ratio. I make that finding because the offender will require a longer than usual parole period to obtain treatment in the community for his mental health and drug and alcohol issues.

172. The offender will also require longer than usual additional time to readjust to life in the community including in obtaining housing and employment.

173. Furthermore, this is the first time that the offender will serve a lengthy period in custody. By reason of his youth and mental health conditions, the conditions in custody will be more onerous. As Harrison J said in Mainwaring v R [2009] NSWCCA 207 at [71]:

“Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences. …”.

Commencement date

174. The offender has been on remand in relation to this matter since 29 May 2023. During the period from 29 May 2023 to 15 August 2023, the offender was also serving a sentence for the revocation of an ICO. Notwithstanding the fact that the revocation arose from the offender’s non-compliance as opposed to the commission of this offence, I determine that I should exercise my discretion to commence the sentence on the day that the offender was bail refused for this offence, namely 29 May 2023: see Wilson v R [2025] NSWCCA 86 at [33] (per Dhanji J, Adamson JA and Weinstein J agreeing); Edquist-Wheeler v R [2024] NSWCCA 49 at [43] (per Sweeney J, Adamson JA and Lonergan J agreeing); Callaghan v R (2006) 160 A Crim R 145; [2006] NSWCCA 58 at [21]-[23] (per Simpson J, James and Hall JJ agreeing); Martino v The King [2024] NSWCCA 93 at [79] (per Chen J, Harrison CJ at CL and Walton J agreeing); Mattiussi v R [2023] NSWCCA 289 at [49] (per R A Hulme AJ, Adamson JA and Button J agreeing).

175. Applying a 10% discount, I make the following orders:

1. Mr Mark Stanley is convicted.

2. Mr Stanley is sentenced to a non-parole period of 8 years’ imprisonment commencing on 29 May 2023, with an additional term of 4 years’ imprisonment. The total term of imprisonment is 12 years, expiring on 28 May 2035. The first date upon which Mr Stanley will be eligible for release to parole is 28 May 2031.

3. In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I note that the provisions of that Act have potential application to Mr Stanley. I direct that Mr Stanley’s legal representatives advise him of the existence of the Act and its application to this offence.

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Amendments

15 July 2025 - Formatting

Decision last updated: 15 July 2025