R v Titan Gilkes

Case •

[2025] NSWSC 23

•

07 February 2025

No judgment structure available for this case.

Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Titan Gilkes [2025] NSWSC 23
Hearing dates: 4 February 2025
Date of orders: 7 February 2025
Decision date: 07 February 2025
Jurisdiction:Common Law
Before: Hamill J
Decision:

The offender is convicted and sentenced to a non-parole period of 9 years and 6 months commencing on 25 February 2024 and expiring on 24 August 2033. There will be a balance of term of 4 years and 9 months commencing on 25 August 2033 and expiring on 24 May 2038.

Catchwords:

CRIMINAL LAW – sentence – constructive murder – robbery in company whilst armed with shotgun – where offender discharged gun into front door of house – where offender unaware that victim standing close to other side of door – victim shot in leg and died en route to hospital – no intention to inflict harm, death or grievous bodily harm – assessment of objective criminality

CRIMINAL LAW – sentence – where offender young, exposed to drug use and violence in his infancy and childhood and probably suffering intellectual disability – impact on sentence – where offender institutionalised – 5 months in the community between the ages of 17 and 23 – hopelessly sad personal circumstances – balancing gravity of crime and devastating impact on victim’s family against compelling personal history

CRIMINAL LAW – sentence – delay in charging – totality principle – unusual circumstances – where offender arrested for unrelated offending shortly after the murder – no murder charge for two years – where sentence for temporally proximate crimes served by the time of current proceedings – where further sentence required by statute to be served cumulatively – application of authority – whether backdate appropriate in circumstances – application of totality principle – better course to reduce sentence rather than back-dating in unusual circumstances of case

Legislation Cited:

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

Crimes (High Risk Offenders) Act2006 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 3A(2)(eb), 3A(2)(j), 3A(3)(i), 21A, 44, 56

Cases Cited:

Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67

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

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

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

Carr v R [2024] NSWCCA 103

Champion v R (1992) 64 A Crim R 244

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

Ghamraoui v R [2009] NSWCCA 111

Lawrence v R [2023] NSWCCA 110

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Pearce v The Queen (1998) 194 CLR 610; [1988] HCA 57

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v AD [2024] NSWSC 444

R v Cage, Lowcock & Stamp (No 3) [2024] NSWSC 718

R v DPD [2023] NSWSC 477

R v Engert (1995) 84 A Crim R 67

R v Israil [2002] NSWCCA 255

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

R v JB [1999] NSWCCA 93

R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep)

R v Mills (Court of Criminal Appeal (NSW), 3 April 1995, unrep)

R v Millwood [2012] NSWCCA 2

R v Shillingsworth [2023] NSWSC 453

R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309

R v Tiriaki [2023] NSWSC 1480

Raad v R [2011] NSWCCA 138; (2011) 220 A Crim R 471

TM v R [2023] NSWCCA 185

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

Winchester (1992) 58 A Crim R 345

Texts Cited:

N/A

Category:Principal judgment
Parties: Rex (Prosecution)
Titan Gilkes (Defendant)
Representation:

Counsel:
E Balodis (Rex)
I Nash (Gilkes)

Solicitors:
Office of the Director of Public Prosecutions (Rex)
Legal Aid Commission of NSW
File Number(s): 2023/00183434
Publication restriction: 1. Pursuant to ss 7-8 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (“the Act”) there is a non-publication order over paragraph 18 of the affidavit of Kylie Elemes affirmed on 23 January 2025, being exhibit 2 in the proceedings.
2. The order is made on the ground in s 8(1)(e) of the Act, namely that the order is otherwise necessary in the public interest and that public interest significantly outweighs the public interest in open justice.
3. For the purpose of s 12 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order will exist for a period of 20 years or until further order.
4. Pursuant to s 11 of the Court Suppression and Non-publication Orders Act 2010 (NSW), the order applies throughout the Commonwealth of Australia.
5. Any third party access to the affidavit (Ex 2) is subject to paragraph 18 being redacted.

JUDGMENT

  1. Paul Jacques turned 58 years old a couple months before 2 August 2021. He was, in his brother’s words, a “rough nut” but he had the “kindest heart”. In the early hours of that day, he was the target of an attempted armed robbery or home invasion at his home in Gisborne Street Wellington. One of the three robbers – the offender, Titan Gilkes – was armed with a loaded single barrelled shotgun. When the light came on in Mr Jacques’ premises, the offender’s confederates ran and, as they retreated, shouted “shoot” or “pull it” or words to similar effect. Mr Gilkes discharged the shotgun at the closed front door, unaware that Mr Jacques was standing a metre or so behind that door. He aimed the shotgun at a 45-degree angle down from the waist. Shotgun pellets entered Mr Jacques leg below the knee. Around an hour and a half later, Mr Jacques went into cardiac arrest as he was being transported by ambulance to the Orange Base Hospital. He could not be resuscitated, and life was pronounced extinct a little after 7:00am. To once again borrow his brother’s words, this was a cowardly and senseless killing.

  2. Mr Gilkes, who was just 19 years and 9 months of age at the time, was arrested and charged with murder on 7 June 2023. The reason for the delay in charging him is not known although he had been in custody (on other charges) since 3 August 2021. The offender entered a plea of guilty to the murder charge when the case was still before the Local Court. On 1 August 2024 he was committed for sentence to this Court. He confirmed his guilty plea on arraignment on 11 October 2024. The sentencing hearing took place on Monday, and I am now called upon to sentence Mr Gilkes. Despite the great assistance I received from the lawyers on both sides, and the cooperation between the parties which greatly assisted the Court’s deliberations, determining the appropriate penalty is a very difficult task. The case is a tragic one from the perspective of all involved.

The impact of the crime

  1. The events of 2 August 2021 are most acutely tragic to the family and loved ones of Paul Jacques and I will address my initial remarks to their grief and bewilderment.

  2. George Newman was Paul Jacques’ brother. Their mother died when Paul was just 16 years old. The death, which I take to have been sudden and resulted in the boys’ relocation to live with their grandmother, caused changes in Paul’s behaviour. His brother said he was rebellious and difficult but remained of kind heart. At 21, Paul left the grandmother’s house and started working as a truck driver. He was “handy” and always available to help others. Mr Newman reconnected with him in the year 2000 when Paul started living with him. Paul met the woman who would become the love of his life in 2015. They travelled overseas, loved each other and, on Mr Newman’s observation, “Amanda turned Paul into a real gentleman”.

  3. In a second horrible turn of events in Paul’s life, Amanda got cancer and died in 2019. Paul went to pieces and started mixing with bad company who took advantage of his good nature. Drugs and alcohol took hold. So it was that at the time he was murdered, Paul was – according to the agreed facts – dealing in drugs out of the house in Wellington.

  4. Mr Newman did not know what to do when the police told him his brother had been killed. The news “broke” him and he felt vengeful although he knew that seeking revenge would not do any good. He had to sit back and hope the police would find those responsible for his brother’s killing. To this day, Mr Newman cannot understand how or why this tragedy happened. The loss of his brother to homicide compounds the grief caused by his mother’s early death. He feels the offenders are cowards who could not even face the person they shot and did not even know who they were shooting. His brother was defenceless. He just cannot understand how people could act this way.

  5. The law requires that a sentencing judge must take account of the suffering endured by those left behind to grieve the death of the primary victim of a homicide. The Judge – and the sentence – must recognise the harm done to the victims and to the community. In homicide cases, it must also be recognised that human life is sacred and that all lives are equally important. The individual dignity of the victim, in this case Mr Paul Jacques, must be vindicated.

Some fundamental matters of sentencing principle

  1. The maximum penalty for murder is life imprisonment. This reflects the seriousness with which the law regards all offences of murder. Further, there is a standard non-parole period of 20 years’ imprisonment. While the standard non-parole period does not strictly apply after an early plea of guilty, these statutory guideposts reflect the seriousness of the criminality involved in a murder case. They must be, and have been, kept steadily in mind, throughout a balanced consideration of the appropriate penalty and the evidence touching upon matters relevant to a proper and lawful sentence. No matter how sympathetic the offender’s personal circumstances, and Mr Gilkes presents a compelling and moving case, they must not overwhelm or distract from the objective seriousness of what the offender did, the consequences of what he did and the pain he has caused. Nor can they allow me to forget the availability of a life sentence and the severe standard non-parole period that applies to a case in the mid-range of objective seriousness where the matter proceeds to trial.

  2. The objectives of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”) and established by decades of case law. The wrongful taking of human life must be denounced unequivocally, and Mr Gilkes must be held accountable for his conduct and appropriately punished. As I have said, the sentence must reflect the harm caused by the crime: to the victim whose life has been cut short in his prime, to his family and friends, and to the community who are entitled to feel safe and secure in their homes. The sentence must protect the community and send a message both to the offender himself and to others that such offences will be met with stern punishment. At the same time, the sentence must reflect Mr Gilkes’ compelling personal circumstances and must – if possible – aim to promote his rehabilitation and reintegration into the community. Finding the appropriate balance between these considerations presents a challenge.

  3. It is obvious that the only appropriate penalty for this crime is a lengthy sentence of full-time imprisonment.

  4. Because of the timing of his plea of guilty, Mr Gilkes is entitled to a reduction of 25% from his sentence.

  5. The starting point is to make a reasoned assessment of the objective gravity of the offence relative to all other offences of murder. That involves a close examination of the basis of Mr Gilkes’ liability for murder and the agreed facts on sentence. The sentence must reflect the gravity of the offence and tempering the punishment with the leniency and mercy arising from the offender’s age, cognitive challenges and dysfunctional personal history must not result in a sentence that is disproportionate to the gravity of the crime.

  6. The youth of the offender is relevant to the balance to be struck between considerations of deterrence and rehabilitation. [1]

    1. BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [5], TM v R [2023] NSWCCA 185 at [49]-[52], Carr v R [2024] NSWCCA 103 at [40]-[47].

  7. Similarly, mental health issues and an offender’s intellectual or cognitive impairment may reduce the weight to be afforded to deterrence, may impact on an assessment of their moral culpability and may make their time in custody more onerous. [2] On the other hand, such difficulties may mean that an offender’s prospects of rehabilitation are bleak. [3]

    2. R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep) at 14, Champion v R (1992) 64 A Crim R 244 at 255, R v Israil [2002] NSWCCA 255 at [22]-[26], Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].

    3. Cf R v Engert (1995) 84 A Crim R 67 at 70.

  8. Again, an offender who has suffered a deprived childhood, or who has been exposed to drug abuse and violence as they are growing up, is not to be treated as the same as somebody who has not suffered such deprivation or who has not been so exposed. [4] The moral culpability of such an offender may be significantly reduced.

    4. R v Millwood [2012] NSWCCA 2 at [69], Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [42]-[44].

  9. The matters to which I have referred in the three preceding paragraphs – youth, intellectual impairment and childhood deprivation – must not be treated as a job lot (or “conflated”) and each may have its own role to play in the nuanced assessment of the moral culpability of the offender and a determination of the appropriate length of the sentence. [5]

    5. TM v R at [64]-[65].

  10. Because of the sequence of Mr Gilkes’ offending, and the delay in sentencing him, it is also necessary to consider the principle of totality. [6] He was sentenced in the District Court for two aggravated “break and enters” committed shortly before the murder of Mr Jacques and served concurrent 4-year sentences with non-parole periods of 2 years. The question arises as to whether the sentence imposed for this offence encompasses the criminality in those other offences. [7] While it clearly does not, because of the temporal proximity of the offences and the delay in sentence for this offence, it may be necessary to consider whether there would have been an element of concurrency had all of the sentence proceedings taken place at the same time. [8] In the present case, for reasons I will explain, that question is complicated by the operation of s 56 of the Sentencing Act.

    6. Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70, Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26, Pearce v The Queen (1998) 194 CLR 610; [1988] HCA 57 at [45], Cahyadi v R [2007] NSWCCA 1 at [27]; (2007) 168 A Crim R 41.

    7. Cahyadi v R at [27].

    8. Mill v The Queen at [66].

  11. The offender has a bad record of past offending, especially for one so young. He is not to be punished for that and those offences do not increase the objective criminality of the murder. [9] However, the present offence was committed when the offender was on parole and that is an aggravating factor under the sentencing legislation. [10] Further, his criminal record disentitles him to the leniency that might be afforded to a person who has little or no criminal history. It is also relevant to an assessment of his prospects of rehabilitation and the protection of the community.

    9. Veen v The Queen (No 2) (1988) 164 CLR 465 at 477; [1988] HCA 14, Baumer v The Queen (1988) 166 CLR 51 at 57-58; [1988] HCA 67, Lawrence v R [2023] NSWCCA 110 at [57]–[58].

    10. Sentencing Act, s 21A(2)(j).

  12. Section 21A of the Sentencing Act provides a catalogue of aggravating and mitigating factors. I will not use this section as some kind of check list,[11] but will expose where appropriate whether such factors arise and how they impact on sentence. There are, for example, several aggravating circumstances that go to an assessment of the objective gravity of the crime, and I have taken those into account.

    11. Ghamraoui v R [2009] NSWCCA 111 at [23].

  13. It is desirable that the sentence I impose fits within the general pattern of sentencing for similar, but unrelated, crimes. Consistency of punishment is important to instil public confidence in the criminal justice system. The parties provided me with some comparative cases and a schedule of cases, like this one, where sentences were imposed on the basis of “constructive murder”. Even so, no two cases are exactly alike and there must be individual justice in each case.

The facts of the offence and the objective criminality

The agreed facts

  1. The facts of the offence are not in dispute. They are set out in a Statement of Agreed Facts signed by the solicitors for the offender and the Director of Public Prosecutions. This formed part of Exhibit A and is in the following terms:

“1. The offender is Titan Gilkes (DOB 28 October 2001).

2. The co-accused is Mark Charles Stanley (DOB 3 October 2002).

3. The deceased is Paul Jacques (DOB 28 June 1963).

Criminal Liability

4. The offender is criminally responsible for the murder of the deceased on the basis of constructive murder. The basis of the offender’s criminal liability is as follows:

(a) On 2 August 2021, the offender, Mark Stanley, and Bradon Madden (now deceased) formed a joint criminal enterprise to commit a robbery armed with a dangerous weapon upon the deceased, who was known to the offender as a drug dealer, who supplied drugs from his home at 46 Gisborne Street, Wellington.

(b) At about 3.15 am on 2 August 2021, the offender, Stanley, and Madden attended the front door of the residence with the intention of robbing the deceased and if necessary, entering the home.

(c) The offender, Stanley, and Madden entered the unfenced front yard of the property and approached the front door of 46 Gisborne Street. The three men walked onto the covered verandah and stood in front of the front door. The offender was holding a shortened single barrel shotgun.

(d) The deceased walked down the hallway to the front door. He, or another occupant, turned on the front verandah light, illuminating the verandah. Immediately after the verandah light came on, Stanley and Madden retreated off the verandah and out onto the footpath of Gisborne Street.

(e) As described further below, after either (or both) Stanley and Madden had said to the offender ‘shoot shoot shoot’, ‘shoot it and run’ and ‘now pull it’, the offender discharged the firearm into the front door about three seconds after the verandah light was turned on. At the time the firearm was discharged, the offender held the firearm at about waist height and was pointing at about 45-degrees downwards.

(f) When the offender discharged the firearm, the deceased was standing about one to two metres directly behind the wooden front door. Pellets discharged from the firearm pierced the screen door and the wooden front door before they struck the deceased in his lower left leg, below the knee.

(g) The deceased died as a result of a shotgun wound to the left leg with blood loss.

Background

5. The premises at 46 Gisborne Street, Wellington, was known colloquially by the offender, Stanley, and others, as ‘KFC’ due to its proximity to the Wellington Kentucky Fried Chicken store, situated at 91 Lee Street, Wellington

6. On the evening of 02 August 2021, Stanley, the offender, and Maddon were inside a unit at 5-7 Warne Street, Wellington with Kade Baxter and Stanley’s then-girlfriend Taylee Leighton.

7. Blaine Stanley received a text message from Stanley asking for a lift. Blaine Stanley responded, ‘I will be there soon’. Not long after this Blaine Stanley walked to the unit. When Blaine Stanley entered the unit, he saw Stanley, the offender, Madden, Kade Baxter, and Taylee Leighton.

8. Stanley 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 Stanley wanted to go to 46 Gisborne Street, Wellington to buy illicit drugs as this was something that Blaine Stanley had also done. Blaine Stanley then drove Stanley, the offender and Madden to 46 Gisborne Street in a brown Kia Rio (NSW DA80NY).

Events at 46 Gisborne Street, Wellington

9. At about 3.14 am on 2 August 2021, Blaine Stanley drove the offender, Stanley and Madden to the intersection of Percy Street and Gisborne Street, Wellington and all three got out of the car. Blaine Stanley remained in the vehicle and drove a further twenty metres down the road before conducting a u-turn and parking the car. The car was now facing 46 Gisborne Street, Wellington.

10. At 3.20 am, CCTV footage from a camera situated at 44 Gisborne Street, records the offender, Stanley and Madden walking towards 46 Gisborne Street. The offender can be seen holding a firearm in his left hand.

11. The offender, Stanley and Madden walked up several steps to the front door of 46 Gisborne Street. As the men reach the front door, banging on the flyscreen door can be heard on the CCTV footage.

12. The noise of the banging woke two of the occupants, the deceased and Stacey Wheatley. Both the deceased and Wheatley began walking towards the front door. One of them turned on the front verandah light, illuminating the verandah.

13. Immediately after the verandah light came on, Stanley and Madden retreated to the footpath directly in front of 46 Gisborne Street.

14. A CCTV camera located at 44 Gisborne Street recorded the following audio:

A banging noise

Stacey Wheatley:   Oh fuck!

Madden or Stanley:   Pull it bra, pull it ya sick cunt.

Stacey Wheatley:   What’s going on?

Madden or Stanley:   Shoot, shoot, shoot, shoot.

Madden or Stanley:   Shoot it and run.

Offender:       Wait, let me.

Madden or Stanley:    Now pull it.

The sound of a gunshot

After Stanley and Madden had returned to the footpath, the offender remained standing on the verandah. He then discharged the firearm through the locked screen door and the locked wooden front door. The deceased was struck by shotgun pellets in the left lower leg which caused a significant wound. The offender retreated backwards into the front yard and out onto the footpath, and yelled towards the residence, ‘Give us all your shit you fucking dog.’

15. The CCTV footage shows that the firearm was discharged about three seconds after the verandah light was switched on.

16. The offender, Stanley and Madden ran from 46 Gisborne Street north on Gisborne Street towards the car Blaine Stanley was driving. All three men got into the vehicle and were driven away by Blaine Stanley.

17. Blaine Stanley conducted a u-turn and drove the car across the railway tracks left onto Arthur Street and then right on Gobolion Street. Gobolion Street has a ninety-degree bend into Pierce Street. At the intersection of Pierce and Whitely Streets, Blaine Stanley was told to stop the car.

18. The offender, Stanley and Madden got out of the car. The offender went into 18 Pierce Street, the home of Linda Morris, his then girlfriend.

Arrival of emergency services, immediately after the offending

19. At about 3:24 am, 2 August 2021, Stacey Wheatley called triple zero, and told the operator,

‘We’ve just tried to get robbed, broken into, something, and my mate’s been shot. Oh my god.’

20. The operator dispatched police and paramedics to the location. Police arrived at the residence at about 4.00 am. After police cleared and secured the residence, paramedics entered the residence and provided first aid to the victim. NSW Ambulance officers treated the victim at the residence, before conveying him to the ambulance bay at Wellington Hospital to await the arrival of the Road Retrieval Team (RRT) travelling from Orange, to transport the victim to Orange Hospital.

21. The RRT, consisting of a doctor and an intensive care paramedic, arrived at Wellington Hospital at 4:40 am. At 5:40 am ambulance officers commenced conveying the victim to Orange Hospital. The deceased went into cardiac arrest during transportation to Orange Hospital. Cardiopulmonary Resuscitation (CPR) was initiated and was continued at Orange Base Hospital, but the deceased could not be resuscitated and was pronounced dead at 7.07am.

Arrest and charging of Stanley and offender

22. On 5 August 2021, Blaine Stanley attended Wellington Police Station. He provided an induced statement to the Police during which he identified the offender, Stanley and Bradon Madden as the persons he dropped off at 3.20 am on 46 Gisborne Street, Wellington, and then drove away from the residence shortly after.

23. On 29 May 2023, Stanley was arrested at the Wellington Correction Centre and subsequently charged in respect of the death of the deceased. On 7 June 2023, the offender was arrested at the South Coast Correction Centre, and subsequently charged in respect of the death of the deceased.”

Constructive murder

  1. Mr Gilkes is to be sentenced on the basis that he is guilty of what the law labels “constructive murder”.

  2. His criminal liability for murder arises because he committed the act causing Mr Jacques’ death and that act (discharging the firearm) was “done in an attempt to commit, or during or immediately after the commission … of a crime punishable by imprisonment for life or for 25 years”. [12] The foundational offence was under s 97(2) of the Crimes Act 1900 (NSW). In short, that section creates an offence of aggravated armed robbery in company, the circumstance of aggravation being that the offender was armed with a “dangerous weapon” (in this case, the shotgun).

    12. Crimes Act 1900 (NSW), s 18(1)(a).

An assessment of the objective seriousness

  1. There is no suggestion that Mr Gilkes knew that Mr Jacques was standing so close to the door and the prosecution does not contend that he intended to kill or inflict harm on Mr Jacques or even that his act demonstrated reckless indifference to human life. [13]

    13. Tcpt (4/2/25) pp 17-18.

  2. Speaking very generally, cases of murder where there is no such mental element are considered to involve less “moral turpitude” than those where an offender forms such an intention. [14] However, 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 sentence than other instances of murder. [15] What is required is an assessment of the offender’s conduct including his intention and his role in the events causing the death of the deceased. [16]

    14. See, for example, Raad v R [2011] NSWCCA 138 at [47]; (2011) 220 A Crim R 471.

    15. R v Jacobs and Mehajer [2004] NSWCCA 462; (2004) 151 A Crim R 452 at [332] citing R v Mills (Court of Criminal Appeal (NSW), 3 April 1995, unrep).

    16. R v JB [1999] NSWCCA 93.

  3. While a number of aggravating circumstances under s 21A(2) can be identified, most are either an element of the offence (like being in company or the use of a weapon) or inherent in the offence (the use or threat of violence). The offence was part of a planned or organised criminal activity, but the extent of the planning in this case did not greatly exceed what might be expected in any case involving a constructive murder. The degree of planning was not more than one would usually see in an offence of this kind.

  4. The one circumstance which is properly categorised as an aggravating circumstance is the fact that the offence was committed at the victim’s home. [17] Mr Jacques was entitled to feel safe, and to be safe, in his own home.

    17. Sentencing Act, s 21A(2)(eb).

  5. This was an extremely serious offence. However, murder encompasses crimes of far more objective seriousness. There are cases involving torture and gratuitous cruelty, organised executions, contract and gangland killings, and cases where the offender forms a specific intention to take life. Many cases of murder involve far more planning, premeditation and many involve the wilful infliction of (at least) really serious injury.

  6. Considering the very wide range of actions that might constitute an offence under s 18, I consider the present offence to fall below, perhaps well below, the mid-range of objective seriousness.

  7. Having said that, I am unable to accept that the case falls at the very bottom of the range. This is because of the organised nature of the attack. This was not the first time the offender had been to these very premises with malfeasance on his mind. On 18 June 2021, just six weeks earlier, the offender attended the premises in company and armed with a sword demanding “money and gold”. That earlier offence was thwarted when the occupants of the house fought back, Mr Jacques himself wielding a chainsaw. Arming himself with a loaded shotgun was a conscious choice. Further, discharging the firearm not knowing if somebody was standing close to the door was an act of extreme recklessness, and the motive for the offence appeared to be greed, that is the theft of money or drugs from the occupants of the house. Those features of the offence take the case above the low range of murder cases.

Breach of conditional liberty

  1. The murder of Mr Jacques was committed while Mr Gilkes was on parole. Mr Gilkes was in adult custody from 9 January 2020 until 11 March 2021 following his conviction for several offences: one count of affray, four counts of assaulting a law enforcement officer and inflicting actual bodily harm, one count of destroying property, and one count of using an offensive weapon to prevent lawful detention. He was released to parole on 11 March 2021. The present offence was committed on 2 August 2021. Mr Gilkes re-entered custody on 3 August 2021 when he was charged with an offence of aggravated break and enter committed on 18 June 2021, that is the earlier offence committed at the same address.

  2. The breach of parole is an aggravating factor under s 21A(2) but it does not increase the objective seriousness of the offence.

The personal circumstances of the offender

  1. Mr Nash (Public Defender) and Mr Dickens (of the Legal Aid Commission) presented a powerful and very sad subjective case on Mr Gilkes’ behalf. To resort to a cliché, the offender seems to be the product of his environment. His personal history is one of hopelessness. It engenders the feeling that his early life gave him few opportunities to break out of a generational pattern of drug and alcohol abuse, violence and deprivation. His case comprised an affidavit affirmed by his mother Kylie Elemes (Ex 2) and a thorough and insightful neuro-psychological report prepared by Dr Melissa Hughes (Ex 1). I accept the history provided to Dr Hughes and her expert opinions.

Youth – dysfunction and deprivation – low intellectual functioning

  1. The offender was 19 years and 9 months old at the time of the offence and is now aged 23 years. He has a very bad criminal history, including many offences of violence, to which it will be necessary to return.

  2. Mr Gilkes is a young Aboriginal man who was born and raised in Wellington. He has one brother and several half-siblings. His mother used amphetamines every two or three days while she was pregnant with him. She has struggled with drug problems for most of her life apart from a two-and-a-half-month period when she was in a rehabilitation facility.

  3. Mr Gilkes’ father was violent and abusive to his mother and the offender was exposed to drug abuse and violence in his family home from a young age. His parents separated when he was still an infant (of about 11 months). At the age of two or three Mr Gilkes was taken into care by his paternal grandparents in Dubbo.

  4. When his grandfather died Mr Gilkes returned to live with his mother and two siblings on the mission in Wellington. He was exposed to significant violence and crime. He witnessed, and at times was subjected to, domestic violence in the home. He was frequently out on the streets with older relatives and friends, abusing drugs and getting involved in criminal conduct, from a young age.

  5. Mr Gilkes began using cannabis daily when he was 12 years old. At 13 years he began drinking around a carton of beer every weekend. At 15 he was using “ice” heavily on a daily basis and at 18 he began using a considerable amount of heroin. Mr Gilkes has had three overdoses from heroin, one of which he was reluctant to speak about and said it was “sort of” an attempt to take his own life.

  6. He first came into conflict with the criminal law at around 15 years of age and has been in custody of one form or another for most of the time since. Between 2019 (when he was 17) and today, he has lived in the community for about 5 months.

  7. When he was 16 years of age and in juvenile detention, Mr Gilkes was sexually assaulted by an officer of the institution. Mr Gilkes told Dr Hughes that this “fuck[ed] with [his] head” and led to a significant increase in his drug use. He committed many unprovoked attacks on custodial officers. He has a deep distrust of authority figures.

  8. The offender’s education is limited. He described having teacher’s aides at school because he was a “slow learner” and was medicated for ADHD. He has a history of behavioural issues, including physically fighting with other students. He missed school frequently due to truancy and suspensions. He completed Year 10 in juvenile detention and has never had gainful employment in the community.

  9. The results of neuropsychological testing performed by Dr Hughes are strongly suggestive of “borderline” (2nd to 8th percentile) or “extremely low” (<2nd percentile) intellectual functioning. While further testing would be required for a more precise diagnosis, I am satisfied on balance that the offender has an intellectual, neurological or cognitive disability.

  10. Dr Hughes had access to several earlier expert reports of which she provides some details in her own report. Dr Satish Dayalan, psychiatrist, expressed an opinion that Mr Gilkes had symptoms consistent with complex PTSD and substance use disorders (cannabis, opiates and stimulants) and Ms Anita Duffy, a psychologist, recorded a history she thought was consistent with persistent depressive disorder with anxious distress.

  11. Dr Hughes expressed the opinion that Mr Gilkes’ mental health and psychological functioning, which are the result of early and repeated trauma and poor coping skills, are the primary contributors to his criminal behaviour. That trauma includes “his adverse life experiences including early exposure to and normalisation of substance use and crime, poor supervision and parental role models”. These were compounded by further trauma including the sexual assault.

  12. It is self-evident that the offender has become institutionalised and that his case is one of profound neglect and deprivation, early exposure to drug abuse and violence, coupled with a cognitive impairment of some kind.

Relevance to sentence

  1. Based on this powerful body of evidence, I am satisfied that Mr Gilkes’ moral culpability is significantly reduced. Many cases have confirmed the rationale behind this finding, including Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, but few have put it as eloquently as Simpson J (as her Honour then was) did in R v Millwood [2012] NSWCCA 2 at [69]:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility…”

  1. I am also satisfied that the sentence must be structured to allow him as long as possible on parole to assist the offender to re-integrate into the community. As Dr Hughes said, Mr Gilkes is “already quite institutionalised” and “prolonged detention will reduce the opportunity to develop general life skills, which would likely already be slower for Mr Gilkes given his cognitive difficulties.” She also believed, and I accept, that the offender “will need considerable wrap-around support on his release to assist him to integrate into the community and develop basic living skills.”

  2. His condition is also relevant to sentence in that, to again quote Dr Hughes, “prolonged detention would also likely result in further negative effects on his mental health, self-esteem and self-sufficiency”.

  3. His intellectual difficulties and youth also reduce, to some degree, the weight to be given to general deterrence. As Badgery-Parker JA (with whom Gleeson CJ and Sheller JA agreed) said in R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep):

“There is ample authority for the proposition that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others.

…

The principle then is clear enough. It is correctly stated as follows - that whereas general deterrence is a relevant consideration in every sentencing exercise, it is a consideration to which less weight should be given in the case of an offender suffering from a mental disorder or severe intellectual handicap. In an extreme case, the proper application of this principle may produce the result that considerations of general deterrence are totally outweighed by other factors.”

  1. However, in adopting this passage in Champion v R (1992) 64 A Crim R 244, Kirby P (as his Honour then was) cautioned that general deterrence and community protection remained significant. His Honour also repeated the reason for the moderation of deterrence (at 254-255, citations omitted):

“Because the constraints which may be demanded of a person with ordinary adult intellectual capacities may not operate, or operate as effectively, in the case of a person with significant mental handicaps, the community (reflected by the judges) applies to such people the principles of general deterrence in a way that is sensibly moderated to the particular circumstances of their case. General deterrence still operates. It is in place for the protection of the community and the victims of offences which the community rightly takes most seriously. But as that principle falls upon a person such as this applicant, it is necessarily a consideration to which less weight can, and therefore should, be given.”

  1. The combination of Mr Gilkes’ chronic difficulties and his history of violent offending, means the protection of the community has a significant role to play despite the mitigatory impact of the history of abuse and deprivation and the psychological and intellectual difficulties: cfR v Engert (1995) 84 A Crim R 67 at 68.

  2. I must apply the decision in Bugmy v The Queen, where the High Court explained the competing considerations arising in a case like this. Their Honours observed at [37] that “an Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate” (noting that the same principle applies to a non-Aboriginal offender). The joint reasons went on to say at [43]-[44]:

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.

… An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.”

Criminal and custodial history

  1. For a man of his age, Mr Gilkes has a troubling criminal and custodial history. As I have said, he started offending when he was 15 years old, and from the age of 17 years, has only been in the community for a period of 5 months. As both counsel submitted, the police record of convictions and the offender’s custodial history are somewhat at odds with each other and are, to say the least, a little confusing. I received considerable assistance from both the Prosecutor and Mr Nash who patiently took me through these records.

  1. The following emerges from a consideration of both records and the submissions of counsel:

  • On 9 January 2020 Mr Gilkes was transferred from juvenile detention to an adult gaol.

  • On 13 January 2020 Mr Gilkes was sentenced in the Dubbo Children’s Court to a control order for 18 months with a non-parole period of 13 months for one count of affray, four counts of assaulting a law enforcement officer inflicting actual bodily harm, one count of destroying property and one count of using an offensive weapon to prevent lawful detention. The commencement date of that sentence (according to the custodial history) was 1 April 2020 and the non-parole period was to expire on 30 April 2021.

  • In March 2020 he was sentenced in the Dubbo Children’s Court to a control order for 3 months for an offence of stalk/harass/intimidate a law officer.

  • In May 2020 he was sentenced in the Woy Woy Children’s Court to a control order for 4 months and 7 days for assaulting a law officer.

  • On 11 March 2021 he was released subject to a parole order, was returned to custody on 1 July 2021 and released on bail later that day.

  • On 30 June 2021 Mr Gilkes was fined $300 for possession of a prohibited drug by the Dubbo Local Court.

  • In June and July of 2021, he committed two serious and separate offences of aggravated break, enter and commit serious indictable offence. The first of those offences was committed in the same premises as the murder of Mr Jacques. For those offences, he was sentenced in the District Court to concurrent aggregate sentences of 4 years imprisonment with non-parole periods of 2 years. These sentences were ordered to commence on 27 August 2021 (it is not clear why) and the non-parole periods were due to expire on 26 August 2023.

  • However, while Mr Gilkes was serving those sentences, he committed offences of intimidation and assault on a corrective services officer. By operation of s 56 of the Sentencing Act, that sentence was required to be served cumulatively on the sentence for which he was then incarcerated. The offences were committed on 1 August 2023 and sentence was imposed on 5 October 2023. The Local Court imposed an aggregate sentence of 10 months imprisonment with a non-parole period of 6 months. That sentence commenced on 26 August 2023. The non-parole period expired on 25 February 2024.

  • Mr Gilkes has faced a large number of internal disciplinary proceedings while he has been in custody. The custodial records establish he has been involved in physical fights, assaults and intimidation, has failed to comply with routines and disobeyed directions, has participated in or incited riots, has been in possession of an offensive weapon, damaged property, entered other cells and unlawfully used a ‘phone. He has been punished by being placed in segregation.

  1. This record of offending makes it impossible to come to any positive finding as to Mr Gilkes’ prospects of rehabilitation. However, he remains young and it is difficult to predict where he will be when he eventually comes to be released and how he will respond to any programmes in which he participates during the inevitably lengthy period of incarceration.

Delay, totality and the appropriate commencement date of the sentence

  1. The case raises a somewhat difficult question concerning the application of the totality principle which, in turn, is complicated by the sentences imposed for the assault and intimidation of the correctives officer which were governed by the application of s 56 of the Sentencing Act.

  2. As I have observed, Mr Gilkes committed the two aggravated break and enter offences in June and July 2021 and the murder of Mr Jacques took place less than a month later. However, he was not charged with the murder until June 2023. The experienced Prosecutor acknowledged with admirable fairness that, had the offender been charged earlier, partially concurrent sentences may have been imposed. [18]

    18. Prosecutor’s written submissions (MFI 1) at [17]-[19].

  3. Both counsel agree that the totality principle has a role to play. I agree and have come to the following conclusions.

  4. First, these were separate and distinct offences and the criminality of each cannot be encompassed by the sentence imposed in relation to the other (or others).

  5. Secondly, because of the temporal proximity of the offending, it is (or would have been) appropriate for there to be a relatively small degree of concurrency between the sentences. It is also noted that the offence committed in June 2021 was on the same premises but the offenders were scared away when Mr Jacques came at them with a chainsaw. In making retrospective findings as to totality it must be remembered that the two sentences imposed by the District Court were ordered to be served entirely concurrently.

  6. Counsel took somewhat different approaches as to how this could be accommodated within the sentence I am shortly to impose. Mr Nash urged me to backdate the sentence. I accept that this is ordinarily the best way to proceed because it has the great benefit of transparency.

  7. However, I ultimately accept that it is not appropriate to backdate the sentence so that it would commence during or even before the sentences imposed in relation to the assault and intimidation of the correctional officer. Section 56 required that sentence to commence at the expiration of the non-parole period for the aggravated break and enter offences. The sentencing Magistrate complied with that statutory requirement. To backdate the sentence would render that approach nugatory. While I accept Mr Nash’s submission that such a back-date is technically possible – because the present sentence is not governed by s 56 – I accept the Prosecutor’s argument that the better approach is to commence the sentence on 25 February 2024 being the date upon which Mr Gilkes was entitled to be released from the offences committed on the correctives officer.

  8. However, I should state clearly that the sentence that I will impose is somewhat less than would otherwise have been imposed. That is the result of the proper application of cases such as Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 and Winchester (1992) 58 A Crim R 345 and a careful consideration of the totality principle in the peculiar circumstances that pertain here. While Mill v The Queen concerned a much longer delay and offending in two jurisdictions, the following passage (at 66) has some relevance to the assessment of the sentence to be imposed on the present offender:

“the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant … had been sentenced [for all three offences] at one time.”

  1. The Court also considered the position where there was no statutory authority to backdate the new sentence and observed (at 67):

“… the only course open to the second sentencing court is to adopt a lower head sentence that reflects the long deferment that has taken place during which the offender has been in custody.”

  1. Mr Nash also referred to the approximately three-week gap in the commencement date of the sentences for the aggravated break and enter offences. The records tendered in evidence show that the offender entered custody on 3 August 2021 [19] and that the commencement date of the concurrent sentences for the two aggravated break and enter offences was 27 August 2021. [20]

    19. See the Custodial History (part of Ex A) at p 5.

    20. See the Criminal History (part of Ex A) at p 3 of 4.

  2. It is true that it is difficult to understand why those sentences were ordered to commence a little more than three weeks after Mr Gilkes was taken into custody. However, it cannot be said that those three weeks were in any way referable to the present offence because the offender was not charged with murder for another two years. Further, I must proceed on the basis that those sentences were lawfully imposed. There may be a valid reason for what appears, at first blush, to be an oddity in the commencement date. For example (and this is speculation) there may have been a period when he was serving the balance of parole. The evidence does not allow a clear finding but the sentence imposed in the District Court, including the commencement date, must be assumed to be correct.

  3. To be clear, if somewhat repetitive:

  • I will commence the present sentence on 25 February 2024.

  • The sentence I impose will be shorter than otherwise would have been the case by application of the totality principle. It is inappropriate to nominate numbers and to descend into an arithmetical approach but the degree of what I will call “notional” concurrence would be measured in months rather than years. What is significant is that I am conscious of the principle and have taken it into account by reducing the head sentence (and in turn the non-parole period).

  • I have not taken into account the three-week period between Mr Gilkes’ arrest on 3 August 2021 and the commencement date of the aggravated break and enter sentences.

Some specific findings

  1. Before considering very briefly the comparable cases and stating the sentence I have decided to impose, I will repeat some of the findings I have indicated earlier and state some other relevant findings that have not yet been addressed or formally indicated:

  • The offence is objectively very serious but falls below the mid-range of objective seriousness relative to all offences of murder.

  • Considering the objective seriousness, along with the offender’s youth, intellectual challenges and his profoundly deprived and dysfunctional upbringing, Mr Gilkes’ moral culpability is, compared to most cases of murder, relatively low.

  • The fact that the offence was committed on parole is a significant aggravating feature of the case.

  • The offender’s record of violent offending, and his entrenched anti-social behaviour, disentitles him to leniency and increases the need to impose a sentence that serves to protect the community.

  • Equally, I cannot find that his prospects of rehabilitation are good.

  • Mr Gilkes’ intellectual deficit and other neuro-psychological conditions means that a lengthy period of confinement will weigh heavily upon him in that it is likely to make those problems worse.

  • Similarly, his youth and cognitive functioning means that he is not an appropriate vehicle for general deterrence. However, the nature of the criminality – including the planned nature of the offence and the use of a loaded firearm – means that deterrence (both personal and general) remains a significant factor.

  • I am not satisfied, for the purposes of s 21A(3)(i) of the Sentencing Act, that the offender is truly remorseful or has acknowledged the damage caused by the offence. I have considered his plea of guilty but feel it is equivocal on the subject of contrition. [21] I would not go so far as to say the plea of guilty was an acceptance of the inevitable, but I am unable to make a positive finding concerning remorse.

  • There are “special circumstances” justifying a substantial reduction in the non-parole period to allow for a lengthy period on parole. These include the lengthy period of continuous custody and the accumulation of the sentence on pre-existing sentences and his need for a lot of help when he re-enters the community. Mr Gilkes must know that his conduct in custody will determine whether he obtains the benefit of the reduction to his non-parole period.

  • The sentence will be reduced by 25% in recognition of his plea of guilty in the Local Court.

21. Cf R v Thomson & Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [117]-[118].

Comparable cases

  1. The Prosecutor drew my attention to the sentencing judgments in R v DPD [2023] NSWSC 477 (15 years and 3 months with a non-parole period of 10 years and 3 months), R v Shillingsworth [2023] NSWSC 453 (13½ years with a non-parole period of 9½ years) and R v AD [2024] NSWSC 444 (14 years and 4 months with a non-parole period of 9 years and 3 months). DPD and AD were both juveniles at the time of the offending. None of those offenders had the same criminal record as the current offender, which would tend toward a higher sentence, but other factors were similar and Mr Gilkes’ institutionalisation, personal circumstances and the totality issue, pull in the other direction. Shillingsworth received a 25% reduction for his plea but DPD (17.5%) and AD (20%) received a smaller sentencing discount.

  2. Mr Nash took me to R v Tiriaki [2023] NSWSC 1480 who was sentenced to 17½ years with a non-parole period of 11 years and 8 months, after a sentencing discount of only 12.5%. He also referred to R v Cage, Lowcock & Stamp (No 3) [2024] NSWSC 718, a case that did not involve constructive murder although it had some factual similarities to such cases. The sentences were imposed after trial so there was no sentencing discount. This explains to some degree why the sentences imposed on Mr Cage (21½ years with a non-parole period of 14½ years) and Mr Lowcock (20 years with a non-parole period of 13 years and 3 months) are higher than the other cases to which counsel drew my attention.

  3. I have also considered the very brief summaries of the 38 cases in the table prepared by the Public Defenders’ chambers which relate to sentences imposed in cases of constructive murder. The range is very wide but they tend to confirm that the results in the five cases to which I have referred are somewhat representative of cases where young offenders with difficult personal histories stand to be sentenced for such offences.

  4. The cases provided, and the table, confirm that the sentence and non-parole period upon which I have instinctively settled do no violence to the desirability of overall consistency of punishment. However, I emphasise again the requirement for individualised justice and also stress that the offender has been in continuous custody now since the day after the murder (that is, around 3½ years) and the sentence will only be back-dated for around 1 year. The application of the totality principle will result in a sentence which on its face is a little lower than the other cases to which I have referred.

Sentencing

  1. Synthesising the many matters to which I have referred in the course of these remarks, I have settled on a starting point of 19 years. With a 25% discount for the plea of guilty, the total sentence will be 14 years and 3 months.

  2. Applying the finding of special circumstances under s 44 of the Sentencing Act, the non-parole period will be 9½ years. In settling on that non-parole period I am conscious that the continuous period of custody (commencing back in August 2021) remains at about 72% of the total notional sentence. However, there will be a parole period of almost 5 years if Mr Gilkes is released at the expiration of the non-parole period. That should be ample time to re-integrate into the community. Further, a shorter non-parole period would not adequately reflect the objective gravity of the offence, its devastating impact on Mr Jacques’ family and the statutory guideposts.

Orders

  1. I will now formally sentence Mr Gilkes and make some formal orders and directions:

  1. Titan Gilkes, for the murder of Paul Jacques you are convicted.

  2. You are sentenced to a non-parole period of 9 years and 6 months commencing on 25 February 2024 and expiring on 24 August 2033.

  3. There will be a balance of term of 4 years and 9 months commencing on 25 August 2033 and expiring on 24 May 2038.

  4. You will not become eligible for release on parole until the expiration of the non-parole period.

  5. I am required to tell you that the provisions of the Crimes (High Risk Offenders) Act2006 (NSW) apply to you and direct your legal advisers to advise you as to the possible legal consequences that may arise at the conclusion of the sentence.

**********

Endnotes

Amendments

07 February 2025 - [32]: Change "circumstances" to "seriousness"

Decision last updated: 07 February 2025

Most Recent Citation
Cases Citing This Decision

2

R v Stanley [2025] NSWSC 735
R v Youseff (No 4) [2025] NSWSC 125
Cases Cited

30

Statutory Material Cited

3

Baumer v R [1988] HCA 67
Baumer v R [1988] HCA 67
Baumer v The Queen [1988] HCATrans 278