R v Titan Gilkes - [2025] NSWSC 23

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2025] NSWSC 23
Decision Date: 07 February 2025

CaseChat Overview and Summary

In the case of R v Titan Gilkes, the defendant was charged with the crime of murder, specifically constructive murder, for his role in a robbery committed in company while armed with a shotgun. The incident in question involved the defendant discharging his gun into the front door of a house, inadvertently shooting the victim who was standing on the other side. The victim, who sustained a gunshot wound to the leg, tragically died en route to the hospital. The defendant's defence was that he did not intend to inflict harm, death, or grievous bodily harm.

The central legal issues before the court were the assessment of the objective criminality of the defendant's actions, and the appropriate sentence taking into account the defendant's personal history and circumstances. The court had to consider the gravity of the crime and the devastating impact on the victim's family against the defendant's compelling personal history, which included a troubled upbringing, institutionalisation, and a brief period in the community before the offence. The court also had to address the issue of delay in charging and the application of the totality principle in light of the defendant's arrest for an unrelated offence shortly after the murder and the temporal proximity of the sentences for these crimes.

The court concluded that the defendant's actions, while objectively criminal, were not driven by an intention to cause death or grievous bodily harm. The court also recognised the profound impact of the defendant's personal circumstances on his offending behaviour. Considering these factors, the court determined that a sentence reduction, rather than back-dating, was the appropriate course of action in these unusual circumstances. The court balanced the need to address the gravity of the crime with the defendant's personal history and the principle of totality, ultimately arriving at a sentence that reflected the unique aspects of this case. The final orders of the court were to impose a sentence that took into account the totality of the defendant's offending and the mitigating factors presented, while ensuring justice for the victim and their family.

Orders