R v Turnbull (No 26)

[2016] NSWSC 847

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Turnbull (No. 26) [2016] NSWSC 847
Hearing dates:	15 June 2016
Decision date:	23 June 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	1. Following the verdict of the jury on 27 May 2016, the Offender was convicted by the Court of the offence of murdering Glendon Turner. 2. The Offender is convicted of the offence of detaining Robert Strange for advantage contrary to s.86(1) Crimes Act 1900. 3. For these offences, the Offender is sentenced to an aggregate sentence of imprisonment for 35 years, comprising a non-parole period of 24 years commencing on 29 July 2014 and expiring on 28 July 2038, with a balance of term of 11 years commencing on 29 July 2038 and expiring on 28 July 2049.
Catchwords:	CRIMINAL LAW – sentence – murder – shooting of environmental officer – multiple shots and wounds – offence committed against public official whilst exercising public functions – offences committed whilst criminal proceedings against Offender before Land and Environment Court for offences under the Native Vegetation Act 2003 – history of investigation by Office of Environment and Heritage – intention to kill – offender 79 years old at the time of the offences – partial defence of substantial impairment rejected by jury – mental condition of Offender at time of offences – offender suffering from adjustment disorder but not a serious mental disorder – offences of substantial objective gravity – importance of general deterrence – relevance of age and health on sentence – need for sentences to reflect objective seriousness of offences.   CRIMINAL LAW – sentence – detain for advantage – detain environmental officer for the purpose of killing another environmental officer – offence committed against public official whilst exercising public functions – history of investigation by Office of Environment and Heritage – victim detained for a protracted period whilst he undertook the shooting of his colleague – plea of guilty – importance of general deterrence – high objective seriousness – accumulation and concurrency – aggregate sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 Crimes Act 1900 Environment Protection and Biodiversity Conservation Act 1999 (Cth) Native Vegetation Act 2003
Cases Cited:	Barton v R [2009] NSWCCA 164 Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Mun v R [2015] NSWCCA 234 Ngo v R [2013] NSWCCA 142; 233 A Crim R 121 Potts v R [2012] NSWCCA 229; 227 A Crim R 217 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 R v Fraser [2005] NSWCCA 77 R v Holyoak (1995) 82 A Crim R 502 R v Isaacs (1997) 41 NSWLR 374 R v McLean [2001] NSWCCA 58; 121 A Crim 484 R v Ngo (No. 3) [2001] NSWSC 1021; 125 A Crim R 495 R v Previtera (1997) 94 A Crim R 76 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Turnbull (No. 5) [2016] NSWSC 439 R v Turnbull (No. 25) [2016] NSWSC 831 Siganto v The Queen [1998] HCA 74; 194 CLR 656 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84; 212 LGERA 163 Turnbull v Director-General, Office of Environment and Heritage (No. 2) [2014] NSWLEC 112 Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116
Texts Cited:	---
Category:	Sentence
Parties:	Regina (Crown) Ian Robert Turnbull (Offender)
Representation:	Counsel: Mr PE Barrett (Crown) Mr T Alexis SC; Ms C O’Neill (Offender)   Solicitors: Office of the Director of Public Prosecutions (Crown) Cole & Butler (Offender)
File Number(s):	2014/223920
Publication restriction:	---

REMARKS ON SENTENCE

1. JOHNSON J: In the late afternoon of Tuesday, 29 July 2014, Glendon (Glen) Turner and Robert Strange were carrying out their duties in the Croppa Creek area, some 60 kilometres from Moree in northern New South Wales. Both men were Compliance Officers employed by the Office of Environment and Heritage (“OEH”) exercising functions under the Native Vegetation Act 2003. The two men were approached by the Offender, Ian Robert Turnbull, on Talga Lane. The events which followed left Mr Turner dead and Mr Strange shattered by a prolonged and terrifying event.

The Offences

2. Arising from these events, the Offender was charged with very serious criminal offences.

3. He stood trial for the murder of Mr Turner and, on 27 May 2016, was found guilty of murder by the jury.

4. On 20 April 2016, the Offender pleaded guilty to a charge of detaining Mr Strange with the intention of obtaining an advantage, namely the homicide of Mr Turner.

5. The offence of murder is punishable by a maximum penalty of imprisonment for life. In the circumstances of this case, it is common ground that a standard non-parole period of 25 years applies given that, at the time of his murder, Mr Turner was a public official exercising public functions and the offence arose because of Mr Turner’s occupation: s.54A; Item 1A, Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act 1999.

6. The offence of detaining Mr Strange for advantage is punishable by a maximum penalty of 14 years’ imprisonment: s.86(1) Crimes Act 1900. There is no standard non-parole period for this offence.

Facts of Offences

7. The starting point is to make findings of fact for the purpose of sentence concerning the offences. The primary constraint is that the view of the facts adopted by me, for the purposes of sentencing, must be consistent with the verdict of the jury: R v Isaacs (1997) 41 NSWLR 374 at 377-378. The Court may not take a matter into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the Offender relies upon to reduce penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28].

8. As will be seen, the facts of the s.86 offence involving Mr Strange lie within the narrative of the offence of murder.

Background to the Offences

9. What follows constitutes my findings of fact with respect to events over a period of years leading up to the offences on 29 July 2014. An understanding of this history is necessary to explain the events of 29 July 2014.

10. The Offender was born in Moree on 13 November 1934. He was 79 years old at the time of the offences. In the early 1960s, the Offender and his wife bought their first farm known as “Yambin” in the Croppa Creek area outside Moree. They were living at “Yambin” as at 29 July 2014.

11. The Offender initially farmed stock and grain, but changed to only grain farming and had been a successful farmer in the Moree district. The Offender’s farming operation grew and, over the years, he purchased 11 or 12 farms with his family including his sons, Roger and Grant Turnbull.

12. In the latter part of 2011, the Offender arranged the purchase of adjacent properties in the Croppa Creek area known as “Strathdoon” (about 1,532 hectares) and “Colorado” (about 916 hectares). These properties were located about 30 kilometres from “Yambin”. “Strathdoon” and “Colorado” were opposite “Buckie”, another property owned by the Offender which lay on the other side of County Boundary Road. The Offender and his wife assisted his son Grant and his grandson, Cory Turnbull, financially in the purchase of “Strathdoon” and “Colorado”, including guaranteeing Cory Turnbull’s loan. The evidence revealed that “Strathdoon” was purchased for $1.9 million and “Colorado” for $3.2 million (T933).

13. Neither Grant nor Cory Turnbull lived constantly in the Moree area. At all relevant times, both Grant Turnbull and Cory Turnbull lived in different locations in Queensland. Grant Turnbull would stay with the Offender at “Yambin” about one week in four, but would otherwise conduct his business remotely from his Queensland home.

14. Prior to their purchase in 2011, both “Strathdoon” and “Colorado” had been grazing properties. It was common ground at the trial that the properties were purchased so that they could be converted from grazing properties to broadacre farms. Each property was considered to have good black soil quality. This process of conversion would serve to increase significantly the value of each property and their financial profitability.

15. In and after 2011, the Offender, together with workers employed by the Offender and his family, commenced the process of clearing vegetation on the two properties for the purpose of converting them to broadacre farms. This process involved the use of bulldozers and the burning off of cleared vegetation.

16. Valuation evidence was given at the trial to the effect that, by July 2014, “Strathdoon” had a fair market value of $2.2 million and “Colorado” a fair market value of $5.38 million (T580-581). The increased value of the properties reflected the increase in cultivation areas on each property as a result of clearing.

17. Not surprisingly, the substantial clearing activity on the two properties attracted the attention of the OEH and its officers, given the statutory duty of that agency to enforce the Native Vegetation Act 2003.

18. The evidence indicates that there was, and remains, a level of tension in the Moree district with respect to compliance with the Native Vegetation Act 2003. Application of that law requires a level of investigation, observation and regulatory direction by OEH officers which, at times, gives rise to a level of irritation, if not resentment on the part of landholders. In his evidence, the Offender agreed that he disliked the Native Vegetation Act 2003 and its effects (T895).

19. It does not seem that the Offender had encountered directly the need to comply with the provisions of the Native Vegetation Act 2003 before the acquisition of “Strathdoon” and “Colorado” in late 2011.

20. It is fair to describe the Offender as an old-fashioned farmer, with firm views about land ownership and use of the land. It may be inferred readily that the Offender, and members of his family, did not look kindly upon the level of scrutiny, accountability and regulatory action required under the Native Vegetation Act 2003, and the extent to which it may slow down, if not stop, the planned conversion of the two properties to broadacre farms.

21. The evidence at the trial indicated that there was some interaction between the Offender and Mr Turner up to June 2012. There was no personal face-to-face contact or telephone contact between the two men from that date until 29 July 2014, when the Offender confronted Mr Turner and Mr Strange on Talga Lane.

22. Two incidents referred to in the evidence at the trial shed some light upon the Offender’s reaction to official intervention or investigation of matters concerning his or his family’s land.

23. Dr Christopher Nadolny, an ecologist then employed with the OEH, accompanied Mr Turner on 28 June 2012 on an occasion when they met with the Offender at “Strathdoon”. Dr Nadolny said that there had been substantial clearing on the property and a conversation ensued with the Offender. Dr Nadolny said that, during this conversation, discussion took place concerning a draft remediation area. When Mr Turner told the Offender that he would be able to keep his crop on the remediation area, the Offender said words to the effect, “Well, if you don’t do that, you better watch out for your wellbeing”. When Mr Turner asked the Offender, “Should I take that as a threat?”, the Offender responded, “You can take that whichever way you like. I’m an old man and there’s not much you can do to me”, or words to that effect (T546).

24. On 30 August 2012, Murray Fisher, a senior investigator with the Commonwealth Department of the Environment, attended “Strathdoon” and “Colorado”, together with another Commonwealth officer. His duties involved the investigation of matters for the purposes of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). On that day, Mr Fisher had a conversation with the Offender in the context of koala conservation on rural properties, an issue falling under the relevant Commonwealth legislation.

25. In the course of a conversation concerning the impact on koalas from land clearing, Mr Fisher impressed upon the Offender the importance of following guidelines. He said that, if he did not do so, it would leave the Offender open to prosecution. Mr Fisher stated that the Offender said words to the effect, “I’m an old man. I’ll do what I want because what are you going to do with me? What will happen to me?”. In further conversation about the property, the Offender explained that he had bought the property because of the soil quality, and that it was the last of the good black soil around the area. According to Mr Fisher, the Offender said words to the effect, “It needed to have a crop in it and that’s what I’m going to do to it” (T504, 513).

26. I am satisfied that these comments made by the Offender, in June and August 2012, reflect his reaction to official investigation and intervention in areas relevant to land ownership and management.

27. The Offender was 77 years of age at the time of these conversations. The Crown did not assert, nor do I find, that these comments may be related directly to the Offender’s acts on 29 July 2014, in the sense that he formed the view in 2012 that he would, in due course, attack Mr Turner. However, they provide considerable insight into his mindset or approach to official scrutiny and intervention in areas relating to land clearing, an activity which was being undertaken, with some vigour, on “Strathdoon” and “Colorado”.

28. By 21 August 2012, it is clear that Mr Turner had formed the view that the Offender had been clearing property contrary to the Native Vegetation Act 2003 and that it was proposed to bring proceedings for those acts. Mr Turner had expressed the view that this was being done “for the money” (Spencer, T1069). This approach was understandable given the clearing activity being undertaken so as to convert the properties to enhance their value and productivity.

29. On 13 December 2012, a prosecution was instituted by the OEH against the Offender in the Land and Environment Court of New South Wales. The prosecution alleged that, between about 1 November 2011 and 18 January 2012, the Offender committed an offence under s.12 Native Vegetation Act 2003, in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with that Act or a property vegetation plan. The charge related to the clearing of native vegetation on “Strathdoon” and “Colorado”.

30. In due course, the Offender pleaded guilty to this charge and a hearing proceeded before Sheahan J in the Land and Environment Court on 4, 5, 6 and 7 March 2014, where the principal issue concerned disputes over the area of land unlawfully cleared and the degree of environmental harm caused. His Honour reserved judgment on sentence and that was the position as at the date of the offences.

31. On 19 September 2014, his Honour convicted the Offender and imposed a fine of $140,000.00 together with an order for costs: Chief Executive of the Office of Environment and Heritage, Department of Premier and Cabinet v Turnbull [2014] NSWLEC 150. Amongst the findings of Sheahan J, his Honour concluded that an area of 38.7 hectares had been unlawfully cleared, with a minimum of 3,000 trees being removed across the cleared areas of which many were environmentally significant. His Honour concluded that the level of environmental harm caused was substantial (T786-787).

32. Other proceedings were brought before the Land and Environment Court with respect to activities on “Strathdoon” and/or “Colorado”. It is not necessary to recite these events in any detail. It should be noted, however, that the jury had before them parts of the reasons and orders of Preston CJ in Turnbull v Director-General, Office of Environment and Heritage [2014] NSWLEC 84; 212 LGERA 163 (25 June 2014) (Exhibit S) and Turnbull v Director-General, Office of Environment and Heritage (No. 2) [2014] NSWLEC 112 (31 July 2014) (Exhibits AE and AF). These judgments related to directions for remedial work to be undertaken on one or other of “Strathdoon” and “Colorado”.

33. On 25 June 2014, a further prosecution was commenced against the Offender in the Land and Environment Court alleging that, between about 18 January 2012 and 4 September 2012, he committed an offence under s.12 Native Vegetation Act 2003, in that he cleared native vegetation otherwise than in accordance with a development consent granted in accordance with that Act or a property vegetation plan. That offence was alleged to have been committed at or near “Strathdoon”.

34. Mr Turner was 51 years of age at the time of his death. He had been employed as a Compliance Officer with the OEH for a number of years. The evidence at trial indicated that Mr Turner was diligent and tenacious in the discharge of his duties under the Native Vegetation Act 2003, including his duties with respect to the Offender and the Offender’s family, and the properties “Strathdoon” and “Colorado”. He utilised statutory powers in his dealings with the Offender and his family. There was some evidence indicating a measure of irritation on the part of Mr Turner at times in his dealings with the Offender and his family. This was understandable in circumstances where the process of clearing vegetation on the two properties was occurring regularly, and undoubtedly for the purpose of preparing both properties for broadacre farming, apparently with little regard for the Native Vegetation Act 2003.

35. The diligence and persistence of Mr Turner, and the OEH generally, resulted in strong adverse views being formed by the Offender towards him, the OEH and its officers. I am satisfied that the Offender became increasingly resentful over a period of time, at what he considered to be officious intervention in his conversion plans with respect to the two properties.

36. Evidence was adduced at the trial, from members of the Turnbull family and their friends, of increasing pressure and stressors which appeared to be having an effect upon the Offender in the period leading up to 29 July 2014. It is not unusual for litigation to cause stress to those involved in it. The evidence indicates that the Offender had no prior involvement in court proceedings before the events in and after 2011.

37. By 29 July 2014, the Offender was before one sentencing court awaiting decision for the offence to which he had pleaded guilty. A further prosecution had been brought against him which had yet to come on for hearing before the Land and Environment Court. When the Summons for the second prosecution was served upon the Offender in early July 2014, it was accompanied by an affidavit of Mr Turner, and other documents, which had been filed in the Court as part of the process of commencing the prosecution.

38. Other proceedings were on foot in the Land and Environment Court relating to action taken by way of stop-work orders or remedial notices, which had issued from the OEH as a result of activities being undertaken on “Strathdoon” and “Colorado”. It is undoubtedly the case that significant stress and cost was resulting to the Offender as a result of these events.

39. I accept that the Offender was and is a stoical type of person and an old-style farmer. I accept that, in the period before 29 July 2014, he spoke frequently to relatives and friends about action being taken by the OEH. I accept that he manifested a single-minded approach in this regard which focused upon Mr Turner, although he had not had physical or telephone contact with Mr Turner for more than two years before the murder.

9. I will return later in these sentencing remarks to the psychiatric evidence for the purpose of expressing my conclusions about it.

10. What is clear, on the evidence, is that the Offender had been working long hours for some nine days up to and including 29 July 2014. He would travel the 30-kilometre journey to and from “Yambin” each day, for the purpose of working on “Strathdoon” or “Colorado”, driving a bulldozer clearing land. Other employees would also either drive a second bulldozer for this purpose, or set fire to stacks of cleared vegetation which had resulted from the clearing process.

11. As was the jury, I am in no position to determine whether the clearing being undertaken by the Offender, in the period up to the date of the murder, was consistently in breach of the Native Vegetation Act 2003. What is clear, however, is that two sets of prosecution proceedings were before the Land and Environment Court as at 29 July 2014. This was in addition to proceedings before the Chief Judge of that Court with respect to remedial notices, to which reference has already been made.

12. As at 29 July 2014, it does not appear that there was any reasonable basis for the Offender to believe that the area he was clearing at that time lay outside a proposed remedial area. The evidence indicates a rushed approach to complete the clearing process on the properties, in aid of the end point where the properties could be utilised for broadacre farming. That was, at all relevant times, the plan so as to maximise the value and productivity of the properties.

13. By 29 July 2014, Mr Turner had not been in contact with the Offender since 28 June 2012, a period of more than two years. Mr Turner had been at Court for part of the sentencing hearing before Sheahan J in March 2014, but it was not suggested that there was any contact between him and the Offender on that occasion. The further prosecution had been instituted in late June 2014 charging the Offender with another offence under s.12 Native Vegetation Act 2003. Other litigation was before the Land and Environment Court with respect to remedial notices which had issued, and the Court was in the process of settling orders to be made for remedial areas to be set aside.

14. I accept that the Offender was under considerable pressure as a result of this litigation, and the state of affairs which had resulted from actions taken by him since 2011 with respect to the properties. A strong resentment had built up in the Offender directed towards Mr Turner, whom he blamed for the attention that his actions on “Strathdoon” and “Colorado” were receiving.

The Events of 29 July 2014

46. On 29 July 2014, Mr Turner and Mr Strange had travelled to the Moree district for the purpose of inspecting a number of properties which were unrelated to the Offender and his family. Mr Strange had worked with Mr Turner since January 2014. They were equipped with mobile telephones, an EPIRB emergency beacon, a Garmin GPS hand-held unit and a digital camera to aid with investigations.

47. Whilst driving along County Boundary Road past “Strathdoon” and “Colorado”, the two men observed burning stacks following clearing of land. Understandably, they stopped to investigate. Photographs were taken together with GPS waypoints. Photographs were tendered in evidence showing burning stacks (Exhibit H).

48. As it happens, clearing had occurred that day within areas which had been flagged to be set aside as remedial areas as a result of the Land and Environment Court proceedings before the Chief Judge of that Court. Although Mr Turner and Mr Strange would not have been aware of that precise aspect at that time, it serves to emphasise the proper and responsible basis upon which they stopped to inspect, from the public street, what was happening on these properties. I am satisfied that neither Mr Turner nor Mr Strange entered onto private property on that day, with all observations being made from County Boundary Road or Talga Lane and the public areas adjacent to those roads.

49. By late afternoon, the Offender had completed his bulldozer work and drove his utility across County Boundary Road to “Buckie”. The Offender had put in a long day’s work clearing land on one or other of “Strathdoon” and “Colorado”. He told the jury that the clearing had, in fact, been finished that day and there was no more to be done (T923).

50. The Offender was decanting oil on “Buckie” when he received a message from Ivan Maas, a farm worker employed by the Turnbull family. At that point, the Offender was planning to replace the engine oil in the bulldozer the next morning. Ivan Maas had observed the OEH vehicle, with Mr Turner and another man on County Boundary Road, as he drove past them. He informed the Offender by telephone that “Glen Turner was there on the County Boundary Road taking photos”.

51. Having received this information, the Offender decided to drive to the place where Mr Turner had been seen. In evidence, the Offender explained that he had decided to make contact with Mr Turner as “he hadn’t notified that he was coming and he seemed to be continually there so that was the reason” (T888).

52. The Offender drove his utility from “Buckie” out on to County Boundary Road. He noted that the OEH vehicle was not there. He drove up County Boundary Road and turned onto Talga Lane where he observed the OEH vehicle stationary down the road.

53. I pause at this stage to note that there was no justification for the Offender to seek out Mr Turner on this occasion. What Mr Turner was doing, and what the Offender had been told he was doing, was making observations from a public street. Mr Turner did not have to give notice to the Offender, or anyone else, before he could undertake such an activity. As noted earlier, the attention of Mr Turner and Mr Strange was entirely understandable given the clearing and burning off that was happening and was visible from the street.

54. I am satisfied that the Offender decided to kill Mr Turner when he turned into Talga Lane and saw the vehicle up the road. Upon turning onto Talga Lane and observing the OEH vehicle parked ahead of him, the Offender pulled his vehicle over to the side some distance from the OEH vehicle. He took his loaded .22 pump-action rifle from under the seat of the utility and placed it in the back tray of the vehicle. The firearm was capable of holding 11 .22 long-rifle cartridges. It is apparent that it was loaded with multiple cartridges. The Offender then drove several hundred metres and stopped near the OEH vehicle.

55. The Offender got out of his vehicle and approached, holding the rifle. Mr Turner and Mr Strange were standing near the fence line on public land facing the property “Colorado”.

56. I am satisfied that the events at the roadside involving the three men occupied about 20 minutes, from the arrival of the Offender to his departure after murdering Mr Turner.

57. Without anything being said, the Offender pointed his rifle at Mr Turner and fired, hitting him in the neck area. At the time of shooting Mr Turner the first time, the Offender intended to kill him. The medical evidence indicated that, if urgent attention had been provided to Mr Turner following this injury, it was possible that he may have survived this injury. However, as will become clear, the Offender prevented Mr Strange from obtaining assistance for Mr Turner.

58. The Offender said in evidence that he was “extremely nervous” when he arrived at the scene and asked himself, “Will I or wont I?”, but that “once [he] fired the first shot, the calmness came over” him (T889).

59. Having been shot the first time, Mr Turner said words to the effect, “Ian, what are you doing?”.

60. Soon after, the Offender fired a second shot, hitting Mr Turner in the upper-left chest area. This gunshot wound caused extra-thoracic soft-tissue damage, but did not enter the thoracic cavity.

61. Mr Strange (who had been a police officer in previous years) attempted to reason with the Offender saying, “Sir, put the gun down. What are you doing?”. The Offender told Mr Strange to throw his camera down and he did. Mr Strange again asked the Offender to put the gun down and the Offender replied with words to the effect, “No. You’ve ruined the Turnbulls. You are continually persecuting us. The only way you’re going home is in a body bag”. Mr Strange gave evidence that the Offender said, on two occasions, that Mr Turner would be “going home in a body bag”.

62. Mr Strange continued in his efforts to communicate with the Offender, asking him to put the firearm down and saying that Mr Turner had been hurt and needed help, and that he (Glen) had a young family and that “we needed to get out of there”. The Offender replied to the effect, “No. You’ve ruined the Turnbulls. You know we’re in a drought. You are constantly persecuting us. You’re out here all the time. You’ve got planes flying over here”.

63. Mr Strange continued to plead with the Offender to allow him to get help for Mr Turner. A couple of times, Mr Strange came closer to the Offender who told him to, “Fucking get back”.

64. By this time, Mr Turner was crouched down at the side of the OEH vehicle. Mr Turner attempted to get into the passenger side of the vehicle and managed to open the door. Mr Turner managed to get to the rear of the vehicle and to deploy the EPIRB emergency beacon. At this point, the Offender fired further shots through the back canopy of the OEH vehicle. He explained in evidence that he thought Mr Turner might be trying to get a firearm or Taser from the vehicle, although he now knew that Mr Turner was reaching for the emergency beacon (T889). There was no weapon or Taser in the OEH vehicle.

65. Mr Strange continued in his pleas to the Offender to allow him to leave with Mr Turner to obtain assistance. At one stage, Mr Strange said, “We’re unarmed, you know, we’re not here to hurt you”. The Offender replied with words to the effect, “You’ve ruined the Turnbulls. You’ve sent us bankrupt and you’ve been persecuting the family”.

66. At one point, Mr Turner said that Mr Strange should leave, but he declined, telling Mr Turner, “I have to be fit to get us out”.

67. At one stage, Mr Strange attempted to use his work phone to call “000”, but the call did not connect.

68. As darkness fell, the lights of the motor vehicles lit up the area.

69. At one point, when Mr Strange was moving towards the Offender, the Offender raised his rifle and pointed it at Mr Strange and said words to the effect, “I’ve told you to fucking get back or I’ll fucking shoot you”, but he did not shoot towards Mr Strange.

70. Finally, Mr Turner, who was bleeding from his wounds, turned and made a run towards the fence line. He had moved about 10 metres when the Offender shot him in the back. Once again, the Offender intended to kill Mr Turner at this time. This shot caused grave injuries and significant blood loss, and was the fatal shot. Mr Turner fell to the ground.

71. The Offender lowered the firearm and looked at Mr Strange and said, “You can go. I’m going home to wait for the police”. The Offender got into his vehicle, did a U-turn and did what Mr Strange described (and I accept) as a controlled drive off on an unsealed road.

72. Mr Strange did his best (as he did throughout the ordeal) to assist Mr Turner, but the injuries which Mr Turner had suffered were fatal and he died before emergency services arrived at the scene.

73. Mr Strange stopped a passing vehicle and obtained assistance which ultimately led to attendance of police officers and ambulance officers.

74. The Offender drove home to “Yambin” some 30 kilometres away. There, he waited until the police arrived. On his way home, the Offender contacted an employee, Scott Kennett, and said, “I’ve just shot Turner. I think he’s dead. I’m going home to wait for the police”. When he got home, the Offender said he had shot Mr Turner - “I had no choice, he was ruining my family and it was never going to end”.

75. Police attended “Yambin” that evening and took the Offender into custody, where he has remained ever since.

Factors Bearing Upon the Objective Gravity of the Offences

76. Before moving to the question of whether the Offender was suffering from a mental disorder at the time of the offences, it is appropriate to set out some objective aspects of the offences which were not in dispute on sentence.

77. Firstly, Mr Turner and Mr Strange were public officials exercising public functions and the offences arose because of their occupation. This aspect leads to a standard non-parole period of 25 years for the murder offence, instead of the otherwise applicable period of 20 years. It also constitutes a significant aggravating factor to be taken into account in determining sentence for the s.86 offence committed against Mr Strange: s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999. Of course, s.21A(2)(a) should not be double counted for the murder offence given that it was the factor that gives rise to the standard non-parole period of 25 years. The law has always regarded the murder of a public person or public official, because of that person’s occupation, as being especially serious: R v Ngo (No. 3) [2001] NSWSC 1021; 125 A Crim R 495 at 501-502 [29]-[31]; Ngo v R [2013] NSWCCA 142; 233 A Crim R 121 at 126-127 [23].

78. Secondly, the Offender attacked and killed Mr Turner, and detained Mr Strange at gunpoint, for a significant period of time at a stage when he, the Offender, was awaiting sentence in the Land and Environment Court on a charge of illegal clearing of native vegetation. Although Mr Turner was not to play any further part as a witness in those proceedings, his name was mentioned in the Summons and he had sworn an affidavit which had been relied upon in those proceedings. Further, Mr Turner was to be a witness in the second prosecution which had been commenced on 25 June 2014, and was yet to come before the Land and Environment Court. To murder a public official in the context of pending criminal proceedings against the Offender renders this an especially serious offence.

79. Thirdly, the attack upon Mr Turner involved repeated wounding of him over an extended period of time (about 20 minutes) which undoubtedly heightened his distress and terror which otherwise arose from the event. Mr Strange was subjected to a protracted and terrifying event as well, whilst he sought to persuade the Offender to desist and allow the two men to leave to seek urgent medical assistance for Mr Turner.

80. Fourthly, the detention and attack upon the two men occurred in a remote location, some 60 kilometres from Moree, in a position where police or medical assistance could not be readily and urgently provided. Mr Turner and Mr Strange were vulnerable to criminal conduct of this type, where a person under official investigation armed himself and challenged them in the manner described earlier.

81. Fifthly, it was the Offender who chose to come to the scene where the two men were performing their duties in a public place. The Offender moved directly to the use of force, shooting Mr Turner and detaining both men at gunpoint until the process of murder was completed.

82. Sixthly, the s.86 offence involving Mr Strange was rendered more serious because of the significant length of time for which he was detained at gunpoint by the Offender, in circumstances where the Offender so acted to facilitate the homicide of Mr Turner. This was not a fleeting event. Mr Strange was threatened with being shot at a time when the Offender had demonstrated his willingness to shoot his colleague, Mr Turner. This, magnified the terror experienced by Mr Strange, as he observed the tragedy unfolding despite his best efforts to implore the Offender to stop, and to allow him to obtain assistance for Mr Turner.

83. It is quite clear that the Offender blamed Mr Turner for the investigatory and legal action which had flowed from the process of clearing “Strathdoon” and “Colorado” since 2011. That the Offender had a strong dislike or hatred of Mr Turner is clear. A remaining question is the extent to which any mental disorder intruded upon the Offender’s thought processes, so as to assist him in the imposition of sentence.

The Mental Disorder Issue on Sentence

84. The issue for the jury at trial was whether the Offender should be convicted of the lesser offence of manslaughter, by reason of substantial impairment by abnormality of mind. In this regard, Dr Olav Nielssen and Professor David Greenberg gave evidence in the defence case. Dr Adam Martin gave evidence in the Crown case in reply.

85. It was contended for the Offender that, at the time of the offences, he was suffering from severe depression. Reliance was placed upon evidence of members of the Offender’s family, employees and friends, who had observed the Offender in the period leading up to the offences, taken with the assessments of Dr Nielssen (carried out in August 2014 and February 2016) and Professor Greenberg (in February 2016). The defence psychiatrists testified that the Offender was subject to such a mental condition at the time of the offence, and that that condition substantially impaired his capacity to understand events or to judge whether his actions were right or wrong or to control himself.

86. Dr Martin did not agree with the defence psychiatrists. In his view, the Offender was not suffering from severe depression at the time of the offences. He expressed the opinion that the Offender may have been suffering from a mental condition in the nature of an adjustment disorder, related to the various stressors which he was experiencing. However, Dr Martin rejected the view that the Offender was experiencing severe depression.

87. Submissions were made on sentence as to the finding which the Court should make concerning the question of mental disorder, in light of the jury’s verdict. A finding of substantial impairment requires the defence to prove two things on the balance of probabilities. Firstly, that at the time when the Offender killed Mr Turner, the Offender’s capacity to understand events, or to judge whether his actions were right or wrong or to control himself, was substantially impaired by an abnormality of mind arising from a pre-existing mental or physiological condition, other than a condition of a transitory kind. Secondly, that the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

88. It was submitted for the Offender that the jury had found, and that the Court should find on sentence, that the jury was satisfied on the balance of probabilities that the Offender was suffering from severe depression at the time of the offences, and that his capacity to understand events or to judge whether his actions were right or wrong or to control himself, were substantially impaired as a result. It was submitted for the Offender that the jury was not satisfied, however, on the second limb of s.23A(1) Crimes Act 1900, namely that the Offender had not established to the civil standard that his impairment was so substantial as to warrant liability for murder being reduced to manslaughter. Upon the basis of this submission, it was contended that the Court should find on sentence that the Offender was suffering from severe depression at the time of the offences, and that this aspect would have a significant role to play on sentence.

89. The Crown submitted that the jury was not satisfied on the first limb of substantial impairment, and that the Court should make the same finding on sentence. It was submitted that there was a very live issue at trial on both the first and second limbs. The Crown submitted that the Court should not be satisfied that the Offender suffered from severe depression at the time of the offences, although, as indicated by Dr Martin, the Court may find that the Offender was experiencing an adjustment disorder at that time.

90. Having considered the evidence and submissions made on this aspect, I record my conclusion that the Offender failed on the first limb of substantial impairment at trial. In my view, he did not establish on the balance of probabilities that, at the time of the offences, his capacity to understand events or to judge whether his actions were right or wrong or to control himself were substantially impaired by an abnormality of mind arising from an underlying condition in the nature of severe depression. My reasons for reaching this conclusion are as follows.

84. Firstly, there is no evidence that the Offender sought or was provided with medical treatment or assistance for any mental condition in the years prior to 29 July 2014, or, importantly, since his incarceration. I accept that members of his family, employees and friends noted aspects of his conduct, although no one suggested that he should seek medical attention. However, I do not consider that these features provide any real support for a conclusion that he was suffering severe depression at the time of the offences. A number of the features referred to may be explained by aspects of his life separate from the presence of any mental disorder. For example, the Offender had always been an early riser so that there is no solid evidence of sleep disturbance. Further, other physical health problems from which he suffered (including a leg nerve problem) may serve to explain a number of the matters touched upon in evidence.

85. This is not to say that the Offender was not under significant stress and pressure in the weeks leading up to 29 July 2014. He was before the Land and Environment Court for more than one matter, and other litigation was impacting upon the family properties as well. Substantial legal costs had been paid by him in relation to the litigation. I am not persuaded, however, that the matters relied upon provide a solid foundation for a diagnosis of severe depression.

86. Secondly, it is undisputed that the Offender worked long hours, and in very hard conditions, for some nine days up to and including 29 July 2014. He was driving to and from his home property and, during the working days, was operating bulldozers and otherwise carrying out a range of activities on the properties. I accept the opinion of Dr Martin that this pattern of work is not consistent with the existence of severe depression. I have considered the explanation provided by Dr Nielssen and Professor Greenberg that the Offender’s approach to work was a form of coping mechanism. However, I consider that the work pattern of the Offender, in the days leading up to the offences, operates against a finding of severe depression.

87. Thirdly, once the Offender was in custody from 29 July 2014, he has not received any treatment by way of medication or otherwise for any mental condition. I note that Dr Nielssen examined the Offender on 8 August 2014 for the purpose of preparing a report for these proceedings. He did diagnose depression at that time. However, an experienced Justice Health psychiatrist, Dr Hearps, examined the Offender and did not diagnose depression. The Offender was seen, from time to time, by Justice Health personnel and there is no indication of any diagnosis of depression nor the giving of any treatment for such a condition, or any mental disorder.

88. There was a suggestion in evidence that severe depression could resolve spontaneously following the release of the stressors which contributed to the existence of the condition. A difficulty with this explanation is that whatever stressors may have been operating on the Offender up to 29 July 2014, a different and very substantial set of stressors have operated upon him since, in that he has been in prison for the first time in his life facing a charge of murder. It is not uncommon to see depression manifesting itself in persons facing such a scenario. However, I am not persuaded that the evidence supports a conclusion that the Offender suffered from severe depression, which has since resolved without treatment. The fact that treatment was not needed supports the conclusion that the condition of severe depression did not exist in the first place.

89. Fourthly, I have considered the evidence of Professor Greenberg that persons who suffer severe depression can mask the condition and then, to the surprise of all around them, commit suicide or, in rare cases, homicide. It was argued for the Offender that this is what happened here, that those around the Offender had not picked up the particular signs of depression and that he had, unexpectedly, committed homicide.

90. In approaching this issue, it is necessary to take into account the events of the afternoon of 29 July 2014 and the actions of the Offender. I have already expressed difficulty in accepting that, given his heavy working cycle for many days, he was suffering from a form of severe depression. Further, an unexpected act of suicide may be one thing. However, what the Offender did on 29 July 2014 involved a protracted process where, for some 20 minutes, he held Mr Turner and Mr Strange at gunpoint, culminating in the murder of Mr Turner and the lengthy and terrifying detention of Mr Strange. This was not an act of homicide committed quickly.

91. It is the case that the Offender said things during the course of the offence which suggest a strong view concerning the OEH and Mr Turner. It is quite clear that his thought processes concerning the OEH and Mr Turner were critical to explain his actions. However, I have difficulty in reconciling the drawn out and terrifying nature of the events with a person who is said to be suffering from severe depression.

92. Fifthly, comments made by the Offender in recorded telephone calls, which took place on 3 and 15 September 2014 and 9 and 14 October 2014 (Exhibits AJ and AK), indicate strong ill-feeling on the part of the Offender towards Mr Turner, Dr Nadolny and the OEH expressed in terms that do not seem to echo the existence of severe depression. Senior counsel for the Offender argued that the depression may have still been in place at the time of these calls and this served to explain why the Offender expressed these views. I have difficulty with this submission.

93. Not only is there a problem, at the threshold, as to whether severe depression existed as at 29 July 2014, but I consider the comments made by the Offender in these calls are inconsistent with the presence of such a condition. What they show, of course, is very strong and entrenched ill-feeling on the part of the Offender towards the OEH, Mr Turner and Dr Nadolny. This sheds some light upon the state of mind of the Offender, not only at the time of the calls, but at the time of the offences as well.

94. Accordingly, I am not satisfied, on the balance of probabilities, that the Offender made good the first limb on the partial defence of substantial impairment. In my view, the jury reached the same conclusion.

95. Even if the first limb had been made out, however, I am satisfied that the Offender fell far short of satisfying the second limb of substantial impairment, which involved a value judgment by the jury (representing the community) concerning the question of whether, in the circumstances, the Offender’s culpability should be reflected by a verdict of manslaughter and not murder.

96. The remaining question is the extent to which any mental condition played a part in the commission of the offences, for the purpose of sentence. The jury’s rejection of the partial defence of substantial impairment does not, of course, prevent the Offender from seeking to rely upon such mental condition as may be demonstrated on the evidence: R v Fraser [2005] NSWCCA 77 at [24]-[25]; Potts v R [2012] NSWCCA 229; 227 A Crim R 217 at 244 [136].

97. I am satisfied that the Offender suffered, at the time of the offences, an adjustment disorder which arose from the combination of stressors which operated upon him. He had developed entrenched thought processes concerning the OEH and, in particular, Mr Turner. He was talking about these topics and the litigation constantly.

98. The Offender’s reaction, when he heard that Mr Turner was in the area, was to drive immediately to the place that he was at and then to proceed, over a period of time, to murder him, whilst expressing strong views about the adverse consequences which the OEH action was having upon him and his family.

99. I am satisfied that these aspects support the existence of some mental disorder at that time, in the form of an adjustment disorder. However, I am not satisfied that any substantial mental disorder was in place. As mentioned, I am fortified in this conclusion by the absence of the need for any medical or psychiatric treatment for the Offender, in the months and years since 29 July 2014.

Specific and General Deterrence

107. The circumstances of these offences raise, as important factors on sentence, the principles of specific and general deterrence.

108. General deterrence has particular operation because of the need to discourage persons from taking the law into their own hands to punish, let alone kill, public officials who are entrusted by our community to enforce the laws of the State.

109. The fact that particular laws may not be popular serves to elevate the importance of general deterrence on sentence. Persons in the position of Mr Turner and Mr Strange were required to travel to relatively isolated areas to investigate and enforce the law amongst persons who, in this case, disliked and resented the attention.

110. Further, persons in rural areas commonly possess firearms, as did the Offender. OEH officers were not armed, and it ought not be expected in this country, that they should be armed. However, the law must emphasise the importance of protecting public officials discharging these functions, even more so where the laws which they are required to apply are not popular in the community.

111. Personal deterrence remains a factor on sentence for the Offender. The comments made by him, in the recorded telephone calls of September and October 2014, indicate ongoing hostility on his part towards the OEH and its officers. The fact that the Offender murdered Mr Turner and dealt with Mr Strange in the way that he did, did not lead to any subsidence of his strong feelings in this respect.

112. It is the fact, of course, that the Offender is now 81 years of age. The practical circumstances in which he may be in a position to harm anyone else are limited. However, there is no evidence of any insight on his part.

113. The roles of general deterrence and personal deterrence may be reduced, in a particular case, because of the existence of a mental disorder which affected the Offender at the time of the offences or at the time of the sentence: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 [177]. I accept that there is a limited form of mental disorder which affected the Offender as at 29 July 2014. The full weight of general deterrence and personal deterrence may be modified to some extent on sentence in his case. However, I have not accepted that he was suffering from severe depression at the time of the offences, so that these factors remain of particular significance on sentence.

Family Support

114. The Offender has a strong and supportive family network, including his wife, children and grandchildren. He continues to be supported by them and this will be the case into the future.

Prior Good Character

115. The Offender was 79 years of age at the time of the offences and is now 81 years of age. He has one criminal conviction, being the offence committed in 2011-2012 of unlawfully clearing native vegetation, for which he was fined $140,000.00 in September 2014. The circumstances of that offence are tied up with the commission of the present offences (see [29]-[31] above).

116. Evidence was adduced at the trial as to the Offender’s prior good character and reputation in the Moree district. He has been a hard-working farmer for many years and has assisted the community in a number of respects. He has no prior history of violence.

The Offender’s Health

117. I have made findings above concerning the Offender’s mental condition at the time of the offences (see [90]-[106] above). I accept that, at the time of the offences, he was suffering from a form of adjustment disorder, but not any severe mental disorder. There is no evidence that the Offender now suffers from any mental disorder.

118. There was evidence that the Offender had suffered from depression in the mid-1960s at a time of severe drought, and had received treatment and was on medication for about two years. There has been no further treatment sought for any mental condition in the 50 years which have passed since then.

119. The evidence indicates that the Offender was in reasonably robust health as at 29 July 2014, particularly given his age. He had been working solidly for a number of days and he had been working for many years in farming activities.

120. The medical evidence does not indicate that the Offender was suffering, or is presently suffering, from any cognitive impairment.

121. He had a pacemaker fitted some years ago and suffers from a condition which affects the nerves in his legs, but these aspects did not compromise his ability generally to drive and work on the properties.

122. The Offender was taking various medications as at July 2014 of a type commonly used for persons in middle-to-older age.

123. The Offender is presently housed in the Long Bay Hospital Wing where he has been for some time. The Court should proceed on the basis that the Offender’s health will deteriorate with age, but from a position where his present state of health is quite good for a man of his age.

124. There is no evidence that the Offender’s present custodial conditions are especially difficult. However, it may be expected that the Offender’s ongoing custody will give rise to some difficulties because of his age.

125. Although there was no evidence in these proceedings, the Court is aware that a facility is provided by the Department of Corrective Services for aged male inmates, the Kevin Waller Unit located at Long Bay. The custodial system in this State has the capacity to house and care for elderly prisoners.

The Offender’s Age

126. In determining sentence, the Court should have regard to the Offender’s personal circumstances, including his age. It is the fact that the Offender committed these very serious crimes when he was 79 years of age.

127. The Crown has not pressed an argument that the Court should sentence the Offender to imprisonment for life by way of s.61 Crimes (Sentencing Procedure) Act 1999. In adopting this approach, however, the Crown submitted that the circumstances of this case came close to satisfying the criteria for s.61, but that, given the age of the Offender, determinate sentences to be imposed may have the practical effect of seeing the Offender die in custody.

128. The courts have made clear that age is not a licence to commit an offence: R v Holyoak (1995) 82 A Crim R 502 at 507. Whilst the age of the Offender needs to be taken into account, this cannot give rise to an expectation that the elderly can offend with relative impunity: R v McLean [2001] NSWCCA 58; 121 A Crim 484 at 492 [44]. The sentence imposed must remain one that is commensurate with the seriousness of the criminality involved, and is one that accords with the general moral sense of the community: R v McLean at 492 [45].

129. There is no principle that, if the Court does not impose a life sentence under s.61 Crimes (Sentencing Procedure) Act 1999, that the Court should impose a sentence which provides some prospect of the Offender being released before his death. A fundamental sentencing principle is that a sentence must reflect the objective seriousness of the offence. Adherence to that principle may, in the case of an offender of advanced years, have the practical effect of being a life sentence: Barton v R [2009] NSWCCA 164 at [22]-[27].

130. It will be necessary to keep these principles in mind in taking into account the Offender’s age in passing sentence upon him.

The Offender’s Plea of Guilty to the s.86 Offence

131. The Offender pleaded guilty, on 20 April 2016, to the s.86 offence of detaining Mr Strange for advantage. The Offender had been committed for trial on the murder and s.86 charges on 21 September 2015. On 4 December 2015, the Offender was arraigned in the Supreme Court upon the murder charge only, to which he pleaded not guilty. The Court was asked not to take a plea from him on the s.86 charge at that time. On 2 March 2016, the defence disclosure notice indicated an objection to the wording of the s.86 charge.

132. After discussions with the Crown, an amended indictment was presented on 20 April 2016 containing a differently worded s.86 charge, to which the Offender pleaded guilty.

133. It was submitted for the Offender that the Court should allow a discount of 20% for the Offender’s plea of guilty on the s.86 charge.

134. The discount for the utilitarian value of a plea of guilty will be determined largely by the timing of the plea so that the earlier the plea, the greater the discount: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at 10-11 [32]. The Offender pleaded guilty to the s.86 charge on a date in April 2016 which was after the date initially fixed for the commencement of the trial. Because of pretrial issues which needed to be determined, the trial before a jury did not commence until later in April 2016.

135. I do not consider that the amendment to the wording of the s.86 charge by the Crown bears materially upon the discount to be allowed for the Offender’s plea of guilty. As was accepted at the sentencing hearing, there was no evidence that the Offender had offered to plead guilty to a s.86 charge at an earlier time. In the circumstances of this case, the discount for the Offender’s plea of guilty on the s.86 charge should be 10%.

Remorse or Contrition

136. It was argued for the Offender that he had demonstrated remorse for his offences. The Crown submitted that the Offender had not demonstrated remorse.

137. Section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 provides that the Court may take into account remorse shown by an Offender, but only if the Offender has provided evidence that he has accepted responsibility for his actions and he has acknowledged any injury, loss or damage caused by his actions or made reparation for such injury, loss or damage (or both).

138. The Offender has not given evidence expressing remorse. He gave evidence at the trial, but not at the sentencing hearing.

139. It was submitted for the Offender that remorse is demonstrated, for the purpose of s.21A(3)(i), by reference to what Dr Nielssen and Dr Martin had recorded in their meetings with the Offender. Dr Nielssen gave evidence that the Offender, when asked whether he felt remorse for his actions, said “Well, I do, of course I’m remorseful for the man and his family. I have remorse. I do feel sorry for what happened and for the bloke who was with him I feel sorry. I could have shot him too but I didn’t know him. I think back maybe I should have shot myself but I just wanted to see Rob [his wife] one more time”. The Offender told Dr Martin, “I can’t undo what I’ve done” and “I’m sorry about it now”.

140. Senior counsel for the Offender pointed out that, in his own evidence before the jury, the Offender had said that he had been honest in what he told Dr Nielssen and that this was not challenged by the Crown at the trial.

141. Reliance was placed, as well, upon the Offender’s plea of guilty to manslaughter (which was rejected by the Crown) and to the s.86 offence involving Mr Strange, and the fact that he did not contest at trial that he had shot Mr Turner with the intention of killing him.

142. I am not persuaded that the Offender has demonstrated remorse in accordance with s.21A(3)(i). Reliance upon statements made to psychiatrists does not, in my view, provide any real assistance to the Offender. Nor is the Offender’s argument assisted by the proposition that the Offender could have been cross-examined, in some way, at trial as to what he had said to Dr Nielssen with respect to remorse.

143. It has been said that the assessment of the genuineness of remorse is likely to be better informed in circumstances where it is expressed directly, as remorse is an intrinsically subjective matter, the evaluation of which depends upon human interaction: Mun v R [2015] NSWCCA 234 at [39]. That has not happened in this case.

136. Further, the courts have emphasises that considerable caution must be exercised in determining what weight, if any, can be placed upon self-serving and untested statements by an offender contained in a report or evidence of a health professional: Mun v R at [40].

137. Reliance upon the Offender’s pleas of guilty, and the manner in which the trial was conducted, provides little assistance to the Offender. The Crown case involved not only the direct eye-witness evidence of Mr Strange, but admissions made by the Offender to Scott Kennett and members of his family that he had killed Mr Turner. The Crown case against the Offender was very strong.

138. A number of the comments made by the Offender in telephone conversations which took place in September and October 2014, are quite inconsistent with remorse on his part. He made strong comments about the OEH, Mr Turner and Dr Nadolny in a manner which indicated an ongoing attitude of hostility. There is no reliable basis to conclude that the Offender no longer holds these views.

139. I am not satisfied that the Offender has demonstrated genuine remorse in this case.

Section 22A Crimes (Sentencing Procedure) Act 1999

148. It was submitted for the Offender that he had facilitated the administration of justice, by conducting his defence in a manner so as to attract s.22A Crimes (Sentencing Procedure) Act 1999. It was submitted that the proceedings had been conducted by the Offender in such a manner that his trial had been concluded less than six months after arraignment in the Supreme Court, despite some complexity in the matter arising from the Crown’s change of venue application, contested subpoenas and pretrial rulings that were appealed.

149. It was submitted that the Offender had consented to being examined by the Crown psychiatrist on two occasions (for the purpose of substantial impairment), and that defence disclosure obligations for the purpose of s.143 Criminal Procedure Act 1986 had been complied with in a fulsome and timely manner.

150. I do not consider that the Offender is assisted by his willingness to be examined twice by the Crown psychiatrist on the issue of substantial impairment. It is the practical experience of the Court that, where substantial impairment is to be relied upon, the accused person will be made available to the Crown psychiatrist for examination on one or more occasions if required.

151. It is the case that this trial was brought on and completed in this Court within six months of the arraignment of the Offender in December 2015. The Court took the view that an early trial was appropriate given the circumstances of the case and the age of the Offender. However, the start of the trial was delayed as a number of pretrial issues required determination, with most of those rulings being adverse to the Offender.

152. The events surrounding the commission of the offences did not come under real challenge at the trial. I keep in mind that Mr Strange was a direct witness to the events of 29 July 2014, and that challenge to his account would likely have been difficult, in particular given admissions made by the Offender to Scott Kennett and to his family as to what he had done.

153. Some time was taken up at trial in cross-examination of Crown witnesses on issues relating to OEH action under the Native Vegetation Act 2003. This material had limited relevance to what was the real issue in the trial, substantial impairment. To the extent that much of this material related to the wish of the defence to rely upon the partial defence of extreme provocation, I note that I twice ruled against the Offender on this issue: R v Turnbull (No. 5) [2016] NSWSC 439; R v Turnbull (No. 25) [2016] NSWSC 831.

154. Of course, the Offender is not to be more severely punished for the manner in which the proceedings were conducted: Siganto v The Queen [1998] HCA 74; 194 CLR 656 at 663-664. However, it is for the Offender to demonstrate, on the balance of probabilities, that he has brought himself within the terms of s.22A Crimes (Sentencing Procedure) Act 1999, so that the Court may impose a lesser penalty than it would otherwise impose because of the Offender facilitating the administration of justice. Having considered the matters raised on behalf of the Offender, I am not persuaded that s.22A has been engaged in the circumstances of this case.

Victim Impact Statements

155. The Court received victim impact statements from family victims of Mr Turner, Alison McKenzie (his wife) and Fran Pearce (his sister). Each of these statements was read to the Court by the author. In addition, the Court received written material which shed light upon the impact of Mr Turner’s death upon his young children, Alexandra and Jack.

156. Mr Strange made a victim impact statement which he read to the Court.

157. The Crown made application, for the purpose of s.28(4) Crimes (Sentencing Procedure) Act 1999, that the victim impact statements given by the family victims be considered and taken into account by the Court in connection with the determination of the punishment for the offence of murder, on the basis that the harmful impact of Mr Turner’s death on the members of his immediate family was an aspect of harm done to the community.

158. The victim impact statements of Mr Turner’s wife and sister, and of his children, demonstrate the enormous loss and terrible impact resulting from the death of a loving husband, father and brother. The victim impact statements also revealed the great distress caused to Mr Turner’s parents as a result of his untimely death.

159. Section 3A(g) Crimes (Sentencing Procedure) Act 1999 states that one of the purposes of sentencing is to impose a sentence which recognises the harm done to the victim of the crime and the community.

160. In delivering the second reading speech for the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014, the Attorney General made clear that the legislation was intended to overcome the principle in R v Previtera (1997) 94 A Crim R 76 to the extent of permitting a sentencing court to take into account on sentence, for the purpose of s.3A(g), the harmful impact of the death on members of the immediate family as an aspect of harm done to the community, where the Court considers it appropriate to do so (Hansard, Legislative Assembly, 7 May 2014).

161. I am satisfied that it is appropriate to take into account the impact of Mr Turner’s death upon his immediate family, as an aspect of harm done to the community. In the case of Mr Turner, he was a loving and caring husband, father, brother and son. He had much to offer the community, not only in his family role, but in his service as a public official exercising duties in an important public capacity. I have kept these factors in mind in considering sentence in this case.

162. As I did at the sentencing hearing, it is appropriate that the Court, on behalf of the community, expresses publicly its condolences to each member of Mr Turner’s family for the loss which they have suffered, and will continue to suffer, arising from these terrible events.

163. The victim impact statement of Mr Strange confirms the terrifying and shattering nature of the ordeal to which he was subjected at the hands of the Offender on 29 July 2014. He remains affected by these events. Mr Strange did everything which he could to try and save Mr Turner and to bring the incident to an end. In the circumstances of this case, the impact of these events upon him is what is to be expected when a very serious s.86 offence such as this is committed.

Determining Appropriate Sentences for the Offences

164. I have recited in these remarks, a range of factors bearing upon the objective gravity of the offences, the subjective circumstances of the Offender and other sentencing principles, including personal and general deterrence. It is necessary for the Court to complete the process of instinctive synthesis involved in sentencing, by forming a value judgment in determining an appropriate sentence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 378 [51]; Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 131-132 [26]. As there are two offences, issues of concurrency, accumulation and totality also need to be considered.

165. The offence of murder in this case was especially serious. The standard non-parole period of 25 years operates as a legislative guidepost on sentence: Muldrock v The Queen at 132 [27]. Mr Turner was murdered whilst carrying out his duties as a public official. There is no doubt that the Offender intended to kill him. I am satisfied that the Offender’s motive involved a desire for retaliation or revenge because of the Offender’s belief that Mr Turner had been interfering with his efforts to clear and develop the two properties, for the purpose of broadacre farming. At the time of the murder, the Offender was already before the Land and Environment Court by way of two prosecutions, as to one of which he had pleaded guilty.

166. The events on Talga Lane on 29 July 2014 involved the Offender prolonging the process of murdering Mr Turner, thereby heightening the terror to which Mr Turner was subjected, before the final and fatal shot was fired. I accept that the Offender had developed a mental condition which was present as at that day. However, I am not persuaded that the condition involved severe depression. I accept that the Offender was suffering from a form of adjustment disorder, resulting from the stress upon him arising from investigatory action and court proceedings relating to his activities on the two properties. I do not consider that the moral culpability of the Offender is much reduced, nor that the need to denounce his crime is lessened significantly: Director of Public Prosecutions (Cth) v De La Rosa at 43 [177].

167. It must be kept in mind that it was the Offender’s desire to clear these properties, for the purpose of increasing their value and productivity, which had attracted official OEH attention. By the time he had murdered Mr Turner, the Offender (on his own account) had completed that clearing process. The objective seriousness of this murder offence was very high.

168. In light of the findings which I have just recorded, there is a strong need for general deterrence and, to a lesser degree, personal deterrence to be reflected on sentence.

169. I have taken into account the Offender’s subjective circumstances, including his age, health and prior good character with respect to offences of violence. With respect to the Offender’s age, I keep in mind the sentencing principles to which I have made mention (at [128]-[129] above).

170. It was submitted for the Offender that a finding of special circumstances should be made so as to reduce the non-parole period component of the sentence. Particular reference was made to the Offender’s age and health. Reference was made to published actuarial data which indicated that the Offender has a further life expectancy of about eight years.

171. It was submitted for the Offender that, to preserve a prospect of release (however remote) and to avoid imposing a sentence that would not provide any incentive for ongoing rehabilitation, the Court ought to make a generous finding of special circumstances for the purpose of s.44(2) Crimes (Sentencing Procedure) Act 1999, leading to the imposition of a much shorter non-parole period.

172. In approaching sentence of an aged offender for very serious offences such as these, it is necessary to keep in mind the principles which require a sentence to reflect the objective seriousness for the murder. In sentencing the Offender for this offence, compliance with this principle may unavoidably extend to all of the Offender’s life expectancy, so as to involve a de facto life sentence. I am satisfied that the circumstances of this case require such an approach. To accept the submission made on behalf of the Offender would involve error in this case. It may also operate to give substance to the Offender’s comment, made twice in 2012, to the effect, “I’m an old man. What are they going to do to me?” (see [22]-[27] above).

173. Having regard to the objective and subjective factors, and keeping in mind relevant sentencing principles, the head sentence for the crime of murder should be a sentence of 32 years’ imprisonment. Without a finding of special circumstances, the non-parole period for this sentence would comprise 24 years’ imprisonment. I accept that there are special circumstances because of the Offender’s age and health. I do not accept that a very substantial reduction in the non-parole period should be made by way of a finding of special circumstances, so as to leave open the (perhaps theoretical) possibility that the Offender may be released on parole before he dies. Such an approach would be inconsistent with sentencing principles given the need for the non-parole period to reflect the minimum term which is appropriate to reflect the criminality involved, and having regard to all the principles of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 718 [63]-[65].

174. With respect to the crime of murder, the appropriate sentence is one of imprisonment for 32 years with a non-parole period of 22 years.

175. Mr Strange was detained at gunpoint for an extended period, during which time he was himself threatened and he observed his colleague being slowly shot dead. Mr Strange was performing his duties as a public official at the time. This was a very serious example of an offence under s.86(1) Crimes Act 1900, as to which a maximum penalty of 14 years’ imprisonment applies. I keep in mind the finding which I have made with respect to the Offender’s mental condition at the time of the offence. This finding, however, is of limited assistance to the Offender.

176. There is a strong need for general deterrence to be reflected in this sentence, given the need to protect public officials from threats and acts of violence at the hands of armed citizens who happen to dislike the laws which public officials are required to apply.

177. I keep in mind, as well, the Offender’s subjective circumstances, including his age, health and prior good character with respect to offences of violence.

178. After applying a 10% discount for the Offender’s plea of guilty for this offence, I would impose a sentence of imprisonment of nine years for this offence.

179. With respect to issues of accumulation and concurrency, I have kept in mind that the two offences occurred effectively at the same time, whilst the two unfortunate victims were trapped by the acts of the Offender on Talga Lane. It may be said that the offences arise out of the same course of conduct. At the same time, it is important to recognise that Mr Strange was separately and seriously victimised by the acts of the Offender.

180. Where there are several victims of crimes of violence, it is important for the sentences actually imposed to recognise the fact that several individuals have been victimised by the offending conduct. This aspect should be kept in mind when considering issues of accumulation, concurrency and totality for offences against two victims arising out of the same course of conduct: Vaovasa v R [2007] NSWCCA 253; 174 A Crim R 116 at 121 [19]; Jeffries v R [2008] NSWCCA 144; 185 A Crim R 500 at 513 [96]. I am satisfied that a measure of accumulation is required in this case, which would have the effect of extending the non-parole period by two years and the head sentence by three years.

181. I am satisfied that an aggregate sentence of imprisonment should be fixed in this case for the purpose of s.53A Crimes (Sentencing Procedure) Act 1999. The aggregate sentence will comprise a head sentence of 35 years and a non-parole period of 24 years. A finding of “special circumstances” is made to warrant a limited variation of the usual ratio of non-parole period to head sentence.

182. I have taken into account that this sentence will almost certainly constitute a de facto life sentence, with the Offender dying in custody before the expiration of the non-parole period. I am satisfied that no lesser sentence is appropriate in all the circumstances of the case.

183. In compliance with s.54B(4) of that Act, I have indicated the head sentence and non-parole period that the Court would have set for the offence of murder, had a separate sentence of imprisonment been imposed for that offence.

184. I have indicated, as well, the head sentence which would have been imposed for the s.86 offence had a separate sentence been imposed for that offence: s.53A(2)(b) Crimes (Sentencing Procedure) Act 1999.

185. The Offender has been in custody since 29 July 2014 and the sentence should date from then.

Conclusion

186. Ian Robert Turnbull, please stand.

187. Following the verdict of the jury on 27 May 2016, you were convicted by the Court of the offence of murdering Glendon Turner.

188. I convict you of the offence of detaining Robert Strange for advantage contrary to s.86(1) Crimes Act 1900.

189. For these offences, I impose an aggregate sentence of imprisonment for 35 years, comprising a non-parole period of 24 years commencing on 29 July 2014 and expiring on 28 July 2038, with a balance of term of 11 years commencing on 29 July 2038 and expiring on 28 July 2049.

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Decision last updated: 23 April 2018