R v White

[2023] NSWSC 193

Supreme Court

New South Wales

Medium Neutral Citation:

R v White [2023] NSWSC 193

Hearing dates:

13 December 2022

Decision date:

10 March 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

The offender is sentenced to an aggregate term of imprisonment of 42 years, backdated to commence on 17 March 2020 and to conclude on 16 March 2062, with an aggregate non-parole period of 30 years, so that the offender will be eligible for parole on 16 March 2050.

Catchwords:

SENTENCING – Murder – Where shooting in suburban neighbourhood – 226 bullets fired from two rifles over approximately one hour – One victim killed and multiple injured – Jury found offender guilty of murder and six further charges

SENTENCING – Where only issue at trial concerned defence of mental health or cognitive impairment – Where offender does not have mental health impairment but does have cognitive impairment – Where nexus between cognitive impairment and offences

SENTENCING – Where offender experienced disturbed childhood involving violence, sexual abuse and neglect – Where little insight into offences and qualified remorse – Where uncertain prospects of rehabilitation

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 30E

Crimes Act 1900 (NSW), ss 4C, 19A, 21, 21A, 23A, 33A, 61, 93GA, 195

Criminal Procedure Act 1986 (NSW), s 166

Firearms Act 1996 (NSW), ss 7, 36

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28

Cases Cited:

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

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

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Supple (1870) 1 VR 151

Royall v The Queen (1991) 172 CLR 378

Category:

Sentence

Parties:

Rex
Bradley Jason Mark White (Offender)

Representation:

Counsel:
K Ratcliffe (Crown)
M Hobart SC (Offender)

Solicitors:
Solicitors for Public Prosecutions (NSW) (Crown)
Dib & Associates (Offender)

File Number(s):

2020/85581

JUDGMENT

1. HIS HONOUR: On 14 October 2022, following a trial by jury, Bradley Jason Mark White (the offender) was found guilty of the following offences that he committed at Wyong in the early evening of 17 March 2020: the murder of Byron Tonks (the deceased); two counts of discharging a firearm with intent to cause grievous bodily harm, the victims being Pamela Dickinson and Albert Tonks; and four counts of firing a firearm into a dwelling house with reckless disregard for the safety of any person, the premises being residences in Wyong at 2A Woodward Avenue and 9, 30 and 32 Cutler Drive. All of the offences were committed by the offender in the course of him discharging two firearms from his residence over a period of approximately one hour.

2. The offender is also to be sentenced for six related offences which are the subject of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (the s 166 certificate offences). Those offences are: possessing an unregistered firearm (s 36(1) of the Firearms Act 1996 (NSW)), possessing an unauthorised prohibited firearm (s 7(1) of the Firearms Act), two counts of possessing a prohibited weapon without a permit (s 36(1) of the Firearms Act), destroy or damage property contrary to s 195(1)(a) of the Crimes Act 1900 (NSW), and stalk/intimidate with the intention of instilling fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

The background to the offences

3. The offender did not challenge any of the evidence led at trial by the Crown as to what physically occurred on 17 March 2020. Seven sets of agreed facts were read, which included the statements of ten eyewitnesses who were not required for cross-examination. As was his right, the offender did not give evidence in the trial.

4. The offender possessed and used two rifles during the incident: a bolt-action 6.5mm x 52mm calibre rifle (the 6.5mm rifle), which had to be manually reloaded before firing each round, and a shortened .22 calibre self-loading rifle (the .22 rifle), meaning that it could fire multiple rounds in rapid succession if fitted with a magazine. He used two magazines for that rifle, one with a capacity for 10 rounds and the other with a capacity for 20 rounds.

5. The offender was aged 40 at the time of the offences. He resided at 7A Cutler Drive Wyong, which was a street running approximately north-west to south-east across a slope. 7A Cutler Drive was on the south-western side of the street, which was higher than the north-eastern side. The offender had resided there for about 12 years, initially with his then wife and two daughters and for some time by himself. Access to the front door of the residence was gained by a flight of six steps leading up from ground level to a covered landing (the patio) and the front door, which gave access to the living room. The living room had windows alongside the front door and to its northern side, looking towards the neighbouring property, 9 Cutler Drive.

6. Diagonally opposite on the lower north-eastern side, at 28 Cutler Drive, Pamela Dickinson resided with her three children. She had lived there for approximately 15 years. One of her children was in a relationship with the younger brother of the deceased. Both were aged 17 years at the time. Pursuant to ss 15A(1)(b) and (c) of the Children (Criminal Proceedings) Act 1987 (NSW), I will not refer to them by their names, but rather by pseudonyms, “Carol” and “Stewart”. Stewart had been living at 28 Cutler Drive for approximately six months. Ms Dickinson’s other two children were Elizabeth and Joshua. Ms Dickinson’s niece, Hayley Dickinson (Hayley), would regularly stay at 28 Cutler Drive with her two children, aged 1 and 2 years old at the time of the offences (the infants).

7. The house at 28 Cutler Drive was on one level with a small verandah, one step up from the ground, adjacent to the front door. Two rooms faced the street, the dining room on the northern side and the lounge room on the southern side. The front door was positioned about halfway along the front wall and gave entry to a corner of the lounge room, which was square in shape. The front door was constructed of wood. The portion of the front wall alongside it, extending to the southern front corner of the house, was full-length glass windows. At the time of the incident, visibility through the windows into the lounge room was impeded by a full-length internal curtain that was drawn over one part and an external blind that was pulled down over the remaining part.

8. In recent years, the offender’s relationship with his neighbours deteriorated. In a statement read at the trial, Dyann Murray stated that she had resided at 30 Cutler Drive since 2011. She and the offender had been friendly until about March 2019. Thereafter, if he asked her for cigarettes or money and she did not have any, he would say things like, “You fucking cunts”. She had seen the offender “rip his shirt off and try to fight people in the street for no real reason”.

9. The offender had particularly fixated on Stewart. Over the previous two years, he had occasionally yelled at him and threatened him with violence, complaining that when he pulled up in his vehicle, which was a utility, his music system was too loud and that he would leave it on after he exited the vehicle. He took exception to Stewart and others parking their vehicles on his side of the street, outside his residence. In the three months prior to March 2020, the intensity of the offender yelling at Stewart increased to there being an incident at least once a week. An example was that he would yell out, “Stop talking about me” in an aggressive manner, when in fact Stewart had not been talking about him.

10. Stewart and Ms Dickinson gave evidence of an incident shortly before Christmas 2019, when the offender approached Stewart immediately after he parked a vehicle outside 28 Cutler Drive. Stewart’s account was that as he and a friend alighted, the offender “started yelling [at] us to stop talking about him, threatened to cut my mate’s head off and to punch me in the face”. At that point, Ms Dickinson came over and the situation was defused. Ms Dickinson gave evidence that as she approached the offender, he told her to “Shut up, bitch”, it was between the men.

11. On 17 March 2020, Carol was one of the people at home at 28 Cutler Drive. Between about midday and 2pm, from inside the house, she could hear the offender yelling, which was not an unusual occurrence. At about 5pm, Ms Dickinson, Hayley and Elizabeth left 28 Cutler Drive in Hayley’s car to drive to nearby shops, leaving Carol, Joshua and the two infants in the house. As they left, Ms Dickinson heard the offender yell something out, which was not unusual, but did not hear what he said.

12. Shortly before 6pm, Stewart arrived in his utility, pulling up to the kerb outside 28 Cutler Drive. CCTV from a nearby house captured Stewart alighting from his utility and walking out of sight down the driveway, which sloped down-hill from the road level, in the direction of the house. Approximately 20 seconds later, the offender is seen to stride purposefully across the road and down the drive. Stewart gave evidence that as he walked down the drive, he heard the offender from behind say “Come here you little bitch … I’m going to burn your house down”. As Stewart was about to walk in the front door he turned and saw the offender coming down the driveway towards him.

13. Carol unlocked the door for Stewart, who entered. She saw the offender coming down the drive, speaking, but could not understand what he was saying until he came onto the verandah. The offender said, “Get him out of the house now”. She replied, “No”. The offender said, “Well, I’ll get you too, you slut”. She quickly shut the door, and the offender banged on it. She was scared, gathered the infants and took them to the back of the house and locked the back door. She rang Ms Dickinson and told her what was happening. Ms Dickinson told Carol to phone the police and said that she would be back shortly. Carol then rang Triple Zero. Meantime, Stewart, who was very distressed, phoned a cousin who was nearby, asking him to come there immediately, which he did. The cousin accessed the property from a street to the rear and the house from a side laundry door. Stewart phoned his parents, Cindy and Albert Tonks, five times in quick succession, between 5:55pm and 6:01pm. I will refer to them hereafter by their first names. No disrespect is intended in so doing. He told his parents that he thought he was going to die.

14. The offender was captured on CCTV re-appearing at the top of the drive about 20 seconds after he was seen descending it. Ms Murray, who was in her front yard, saw the offender walk away from the front door of 28 Cutler Drive, saying, “I’ll fuck you up too slut”. Ms Murray said to him, “What’s the problem?” He smiled and said, “Hey, how you doing?”. The offender crossed the road to his residence and returned almost immediately.

15. A man out walking his dog observed the offender at this point and heard him say: “I’m going to burn your fucking car”. The offender crossed the road and poured a liquid over Stewart’s utility. The offender ignited the liquid, causing the utility to erupt into flames. Ms Murray asked the offender what he was doing. He did not respond and returned across the road to his residence.

16. A group of people who were with Ms Murray at this point extinguished the flames, and the offender returned. One of them asked the offender, “Why did you set the car on fire?”. He did not respond and poured more liquid on the utility, causing it to again erupt in flames. Ms Murray’s group again extinguished the flames. She again asked him why he was doing it. He responded, “I’m sick of these boys and what they are doing”. She replied, “They’re good boys. You’re willing to hurt other people?”. The offender asked, “How the fuck am I hurting you?”. He returned to his residence.

17. Those events were captured on CCTV video. The time between when the offender first appeared coming up the drive to when he doused the utility the second time was two minutes and 10 seconds.

18. One of Ms Murray’s daughters, who was aged 17 at the time and who I will refer to as Jennifer, saw the offender re-emerge holding a home-made spear. When police searched the offender’s premises after the incident they located the spear, which was a wooden shaft resembling a broomstick with what was described as “a knife blade or short sword” inserted into the timber at one end. Ms Murray saw a young man approach the offender and ask, “Why don’t you just fight like one on one?”. The offender lunged twice at him with the spear, coming within inches of the young man’s abdomen as he jumped back.

19. At that point, Ms Dickinson, Hayley and Elizabeth pulled up in their vehicle on the offender’s side of the road near his residence. Hayley was driving and Ms Dickinson was in a passenger seat. Ms Dickinson saw the offender walk over to her and opened the door to speak with him. She noticed he was holding the spear. The offender told her “Get the boy out of the house” and that “he could feel the hairs standing on the back of his head”. Hayley told Ms Dickinson to close the door and drove off, doing a U-turn and pulling in behind Stewart’s utility.

Count 2: Discharging a firearm with intent to cause grievous bodily harm (Pamela Dickinson)

20. Ms Dickinson alighted from the vehicle and walked down to the verandah at the front of her house, where Carol was standing, watching what was happening on the street while still on the phone to Triple Zero. Both women saw the offender emerge from the front door of his house holding a firearm. Carol saw him point it towards them, heard it discharge and ran inside. Ms Dickinson turned to run inside when she heard the discharge. As she entered the doorway, she heard another bang. She said that she “was pushed inside with pressure. I’d been hit in the back”. She fell to the lounge room floor on her stomach and was tended by Carol.

21. Jennifer saw Ms Dickinson, Hayley and Elizabeth pull up and make their way towards the verandah and entrance to 28 Cutler Drive. She decided to join them while her mother, Ms Murray, stayed in the area of the street.

22. Albert gave evidence that he, Cindy and the deceased were at home, which was about a three-minute drive from Cutler Drive, when, shortly before 6pm, he heard the deceased speaking on a phone saying, “Is this a joke? Are you kidding?”. The deceased said to Albert, “I’m going to see [Stewart]” and left in his vehicle. Stewart rang Albert on his phone in a distressed state, prompting Albert and Cindy to go there as well, in Cindy’s car. Cindy was driving. When she pulled up in Cutler Drive, she heard gunshots. When they stopped, she ran to the house at 28 Cutler Drive. As she was running, she dialled Triple Zero. Her phone recorded the time of that call as 6:02pm.

23. From the verandah, Jennifer saw the deceased pull up in his vehicle and come into 28 Cutler Drive, and then saw Albert and Cindy pull up. Cindy came down towards the verandah. As she did, Jennifer heard a popping noise, looked up and saw the offender on his verandah holding a gun. She took cover behind a wheelie bin and later made her way into the house.

Count 3: Discharging a firearm with intent to cause grievous bodily harm (Albert Tonks)

24. Albert said that Cindy parked their vehicle on the same side of the road as 28 Cutler Drive. He got out and was told by a woman (most likely Ms Murray) “Get down, get down” and to try to leave. He heard gunshots and crouched down besides the passenger-side back wheel. When the shots stopped, he stood up, exposing himself from the base of his chest, and suffered a wound to his right shoulder. He crouched down again and then ran into 28 Cutler Drive.

25. Once inside, Albert saw Cindy and Carol administering first aid to Ms Dickinson. He could hear the sound of bullets impacting glass and walls inside the house. He went to a rear bedroom to assist a young girl with a wound, then returned to the lounge room.

Count 1: The murder of Byron Tonks

26. At about 6:13pm, Stewart and Joshua were in the lounge room and the deceased entered that room from the hallway. Immediately following the sound of a gunshot, the deceased held the right side of his chest and said that he had been shot. He dropped to the floor, saying he could not breathe. The deceased was moved out of the lounge room as the shots continued. As Stewart and his parents tried to assist him, he told them that he knew he was dying. Within 10 minutes, while farewelling them, he lost consciousness. By 6:31pm, he was unresponsive. His parents performed cardiopulmonary resuscitation (CPR).

27. The occupants of 28 Cutler Drive were evacuated by police through a back window. The deceased was passed out the window at 6:45pm and pronounced deceased by ambulance paramedics at 6:55pm. He was aged 20 years and five months.

28. The first police officers arrived on the scene at 6:08pm and more officers arrived thereafter. Detective Senior Constable Erickson, who was one of the first to arrive, saw the offender discharge two firearms from his balcony and from inside his residence. He observed him to fire from a long-barrelled rifle and a smaller calibre weapon, the latter firing about 10 rounds in rapid succession. Detective Erickson observed the offender firing the weapons for “about an hour”.

29. Senior Constable Stewart, who was in the second police vehicle to arrive, stated that he saw that the offender would quickly come out and fire two or three shots with the large rifle and quickly retreat inside. At one point, the offender pointed a rifle in his direction. Senior Constable Stewart took cover and heard multiple shots go off.

30. One of the offender’s daughters approached a police officer at the scene and informed her that her father wished to surrender. She passed her phone to the officer who then spoke to the offender, telling him that she did not want him to do any more shooting, to which the offender replied, “I was hoping to empty the last magazine”. The offender then threatened to kill himself. The officer calmed the offender down and while she spoke to him, at 7:02pm, he stood outside the front of his residence waving his arms. He went back inside his residence and told the officer on the phone that he would “have a cone” before he surrendered. At 7:15pm, he confirmed that he had finished and came out. He was immediately taken into custody.

Seven background incidents

31. Seven shooting-related incidents were not contested by the offender and were not the subject of charges. I have regard to them as background to the offences charged.

32. Ms Murray saw Albert taking cover at the back of their car, having just been shot. She noticed that he was bleeding. At the time, there were continuous shots being fired. She was crawling on all fours near the rear of the deceased’s vehicle, which was parked just in front of Albert and Cindy’s vehicle, when she felt a sting to her left side near her breast, as a result of a projectile impact.

33. Smartphone video captured a woman taking cover behind Cindy Tonks’ parked vehicle in Cutler Drive. A bullet impact is observed through the side of the vehicle, exiting via a window above the woman’s head.

34. Another video captured a man taking cover at the rear of the same vehicle. A bullet hit the ground close to one of his legs that was exposed to view in the direction of the offender’s residence, ricocheted away and hit a nearby box.

35. When Jennifer entered the house at 28 Cutler Drive, she made a call to Triple Zero on her mobile phone. While doing so, she felt something go past her hand, felt pain, fell to the floor and saw blood. She retreated to a bedroom and hid under a desk. Later that evening, she was treated by ambulance medics for an injury to her finger.

31. Shortly after Albert entered the house at 28 Cutler Drive and saw his wife and Carol administering first aid to Ms Dickinson, while bullets were impacting the walls and glass, a young girl in the house screamed. He saw a bleeding injury to one of her hands. The young girl went to a bedroom, he followed and passed her a towel, and then returned to the lounge room.

32. A passing motorist, Rebecca Davies, happened to drive along Cutler Drive with her window down at some point while the offender was discharging firearms and before the police had arrived and cordoned off the street. She noticed the offender behind his screen door holding a gun. He looked at her and said, “Can you see this, you fucken bitch?”. He pointed the gun at her vehicle. She accelerated away and within two seconds she heard two gunshots.

33. Senior Constable Darren Hunt arrived in the first police car with Detective Senior Constable Erickson. At one point, Senior Constable Hunt took cover behind the engine block and front wheel of another police vehicle, with his body-worn video turned on. From that position, he observed the offender on his balcony firing the 6.5mm rifle towards 28 Cutler Drive and vehicles on the roadway. The offender turned the rifle towards Senior Constable Hunt and fired. He heard a “loud snap” above his head but was uninjured. On the video his hand that held his pistol is seen to be shaking. He explained in his evidence that he was shaking because he was terrified.

Forensic and medical examinations

The cause of death of the deceased (count 1)

39. A projectile fragment removed from the deceased’s body during the autopsy was found by a forensic firearms expert to have been discharged by the offender’s 6.5mm rifle.

40. The pathologist who conducted the autopsy, Dr Allan Cala, concluded that the cause of death was a gunshot wound to the deceased’s chest and abdomen. There was a single gunshot entry wound to the right side of his chest. The projectile passed into the underlying tissues and muscle of his chest and abdomen, completely fracturing his right eighth rib, resulting in the projectile fragmenting. The main masses of fragmented projectile then passed further into his torso resulting in massive trauma to his right lung, right hemidiaphragm, which is located between the liver and right lung, the liver and the right kidney. The projectile fragments then travelled further inward and finally came to rest around his spinal column.

41. There were numerous shrapnel abrasions, mainly on the right side of his body, most likely caused by ricocheting projectile fragments from other fired rounds and other material which entered the body superficially. None of those shrapnel injuries caused any serious internal injury. Dr Cala was of the opinion that the gunshot injury to the right lung would have been fatal by itself, and it would be expected that the deceased experienced immediate breathing difficulties as a result of this wound alone. Dr Cala was of the opinion that the injury to the deceased’s liver and right hemidiaphragm would likely have been fatal by itself, due to the severity of injury.

The injury suffered by Pamela Dickinson (count 2)

42. When examined in hospital later on the evening of the incident, Ms Dickinson was found to have sustained an injury to the lower thoracic area of her back. There were two overlying puncture wounds, which the examining doctor found to be consistent with penetration by a bullet. Pieces of bullet were considered to be too small to be safely removed. She was discharged from hospital on 19 March 2020.

The injury suffered by Albert Tonks (count 3)

43. When examined in hospital later on the evening of the incident, Albert was found to have sustained a wound to the lateral aspect of his right shoulder. An X-ray revealed an undisplaced fracture of his right collarbone near the wound. Dr Cala was of the opinion it was a ricochet wound, the projectile being small in dimension and irregular in shape. It grazed the skin but did not enter the body:

“… likely as its velocity had slowed greatly after it struck at least one other surface prior to striking [Albert]. … The collar bone fracture was caused when the projectile struck that region of [Albert’s] body.”

The police investigation of the crime scene

The examination of the offender’s residence and surrounds

44. Police located the two rifles in the offender’s living room. Neither rifle was registered. The shortened .22 rifle was a prohibited weapon, as well. The offender was not licenced to possess either weapon. A silencer, intended for the .22 rifle, was located, which had not been used in the incident, and two .22 magazines. The silencer and magazines were prohibited weapons. These items constituted the bases for four of the s 166 certificate offences.

45. Police collected 226 fired cartridges. Of these, 159 were .22 calibre and 67 were 6.5mm calibre. They were collected from inside the residence, primarily in the living room, and outside on the patio, stairs, driveway and in a garden bed beneath the living room windows.

46. Damage was observed to flyscreens on windows and the front security screen door inside the living room. Fired .22 cartridge cases were located on the windowsills of the living room windows. These observations were consistent with the offender having fired the rifles through the side and front living room windows and through the front screen security door as well as from the patio.

47. Police found 187 unfired cartridges in the residence. 26 of these were unfired 6.5mm cartridges and 161 were unfired .22 cartridges. They located a home-made weapon in the kitchen, which was described as a timber and metal shaft with an axe-head attached at one end. There was a knife on the floor inside the front door. Police did not locate any petrol in or around the residence.

48. On a lounge in the living room, police located a bowl of cannabis leaf and a bag that contained 0.03g of methylamphetamine (ice). A syringe was found in the dining room.

28 Cutler Drive

49. The house at 28 Cutler Drive had at least 14 bullet impact holes in the front wall. At least 11 had impacted the front door or the part of the wall in front of or above the lounge room. Two had impacted the front door. Three had impacted the lowered external blind and penetrated the glass panes behind it. The windowpane in front of the drawn curtain, which was immediately adjacent to the front door, was shattered by a bullet or bullets. Two of the bullets that had perforated the front of the house into the loungeroom continued on to perforate the wall between the loungeroom and a bedroom, then the wall between that bedroom and a second bedroom, and then the rear wall of the house.

50. As noted, Stewart had parked his utility on the street at the front of 28 Cutler Place. Police investigators reconstructed the scene in September 2022, placing a similar vehicle in the same location, and took images from the offender’s patio and living room windows that faced Cutler Drive towards the house at 28 Cutler Drive. When an allowance is made for a shrub near the front door of 28 Cutler Drive which contemporaneously taken images establish had grown in the interim, the images demonstrate that from the offender’s patio, there was a line of sight to the front door and at least the upper half of the lounge room windows of the house at 28 Cutler Drive. From the offender’s living room front window there was an unimpeded view, over the tray of the utility, of both the door and windows at the front of 28 Cutler Drive.

51. Stewart was asked if he could see where the offender was from inside 28 Cutler Drive. He said there was:

“… a big window in the lounge room and there was a small gap, so you could see but not much. So even if I looked through there, no, I wouldn’t have been able to see [the offender], no.”

52. At the time the offender shot into 28 Cutler Drive there were thirteen people inside, including the infants and three young people aged 17, Stewart, Carol and Jennifer.

2A Woodward Avenue (count 4)

53. In the rear of the offender’s residence, bullet damage was observed to a flyscreen on kitchen windows facing towards the house immediately behind a metal back fence, which was 2A Woodward Avenue. The fence had projectile damage. Upon an inspection of the house at 2A Woodward Avenue, police observed a bullet impact on a door leading from the rear yard to the kitchen with corresponding impact marks on curtains on the door, then a fridge, then through the kitchen wall to an adjoining bedroom, then through an adjoining wall to a second bedroom, then through an adjoining wall to the living room.

54. About three weeks prior to 17 March 2020, the offender was heard having a heated argument with a male who resided at 2A Woodward Avenue. At the time of the incident on 17 March 2020, an adult couple was inside with their child who was aged 3 or 4 years old.

9 Cutler Drive (count 5)

55. The residence next door to the offender’s residence, to his immediate north, was 9 Cutler Drive. Police determined that at least 12 shots had been fired into that house from the offender’s residence. Bullet impact damage was observed to the front exterior bedroom windows, wall cladding, roof eave and a downpipe. Four bullets had penetrated a bedroom window and a shutter on the inside of the window. A combination of bullet fragments and broken glass had impacted on the bedroom ceiling and on a wardrobe door. Two bullets had penetrated the window of a second bedroom and an inside shutter and continued into the room, impacting a cornice and perforating an internal wall of the bedroom.

56. At the time the offender shot into 9 Cutler Drive there was a child inside, aged 13.

30 Cutler Drive (count 6)

57. 30 Cutler Drive was the neighbouring property to the north of 28 Cutler Drive. Police identified at least 22 bullet impact holes on the front and side of the residence which had entered the lounge room, kitchen and a bedroom.

58. At the time the offender shot into 30 Cutler Drive, there were six people inside, including two children aged 13 and one child aged 11 years old.

32 Cutler Drive (count 7)

59. Police identified bullet impact holes on the carport and house at 32 Cutler Drive. Three bullets had penetrated the house. One had entered though a side wall into a bedroom, another perforated a window on the same side and entered the same bedroom and a penetrating bullet impact was located on the front wall of the house.

60. At the time the offender shot into 32 Cutler Drive, there were five people inside, including three children aged 15, 12 and 4 years old. The 12-year-old was sheltering in the doorway of his parents’ bedroom when one of the bullets came through the wall. He saw a puff of gyprock dust as it came through the wall and continued straight past him.

Damage to vehicles

61. Stewart’s utility had 14 areas of bullet impact damage. A vehicle parked in a carport in the driveway of 32 Cutler Drive had a bullet impact. The deceased’s vehicle, which was parked on the road outside 30 Cutler Drive, had at least 15 areas of bullet impact damage. A vehicle that was parked over the driveway of 32 Cutler Drive received three areas of bullet impact damage. Cindy’s vehicle had 17 areas of bullet impact damage. Hayley’s vehicle, which was also parked outside 28 Cutler Drive, received 16 areas of bullet impact damage. A vehicle parked on the south-western kerb outside 9 Cutler Drive received nine areas of bullet impact damage. A vehicle parked in the driveway of 7 Cutler Drive, that is, the other part of the offender’s duplex, received 11 areas of bullet impact damage. The trajectories indicated that all the bullets had been discharged from the vicinity of the offender’s residence.

Contemporaneous statements and subsequent admissions by the offender

62. When the shooting started, the resident of 7 Cutler Drive went to his front door to investigate. He heard more loud bangs and a voice, clearly that of the offender, screaming, “I’m gunna kill ya’s all, I warned ya’s, get out from behind the cars you cowards”.

63. At 6:27pm, the offender left a voice mail recording on his own mobile phone. It appears to be an inadvertent recording made by the offender talking to himself while he was discharging and reloading the firearms. He can be heard aggressively taunting those he was shooting at, with elements of revenge, for example:

“I didn’t even want a problem with you (Shot and reload) Fucking run away … You stupid … , You really want it … You still want to be smart to me mate? … Only gotta wing ya mate. … Think I’m … playing with your arse? Why don’t you try and run over? (laughs) I’m reloading but I’ve still got a couple in there (laughs) I’ve only got about a thousand left boys.”

64. A man crept up to the offender’s residence on the neighbouring property of 9 Cutler Drive, crouched down beside a metal fence that separated the properties and recorded video which captured the voice of the offender talking to himself. Approximately two and a half minutes of the video, recorded from 6:44pm, was tendered by the Crown in the trial. The tone of the offender’s ranting continued to be aggressively taunting and revengeful, as the following excerpt demonstrates:

“Fuckin told yas how many times … How many times did I tell em? … did they listen? Nope … Think I was joking mate? … … I don’t think they think I’m joking anymore. Maybe they do. Maybe they’re so off their fucking heads like I am today because of them. I never was, 50 days clean mate and they had to fuck me over mate. … bet ya wondering why I’ll blow your brains out. Yeah mate that’s right you should keep down buddy …”

65. The police officer who spoke on the phone to the offender between about 7pm and 7:15pm questioned him before he surrendered as to what had occurred:

“Q. What set you off?

A. I finally had it last night. They were being a cunt to me.

Q. What are they doing?

A. They were staring at me. The way they were staring gave me a feeling that made the hair on the back of my neck stand up. It’s gone on for over a year. They think I’m an old bloke.”

66. When arrested, the offender was moved to a police vehicle. While that was occurring, he was cautioned by police and then asked:

“Q. What was your intention by shooting at the house?

A. You’ll be able to tell by where the rounds hit. Some were just warning shots and then I started aiming at them. I’m just sick of them.”

67. While in the custody area of the police station, the offender was again cautioned and informed that he was under arrest for murder, to which he replied, “Is somebody dead?”. He was asked if he knew the name of the person that had been killed and replied:

“… I know I shot at them. But I don’t know who it was. There were two houses with about half a dozen people … And other people came out as well so there was whoever was there yeah … the neighbours, most of them.”

The formal police interview of the offender

68. The offender participated in a formal video-recorded interview with police that commenced one hour and forty-five minutes after his arrest (the videoed interview). The offender gave a rambling but reasonably consistent account of his behaviour that day and his understanding of what led up to it.

69. By way of background, the offender said that he was in receipt of a disability pension because of a brain injury he suffered in 2000 as a result of an assault by five men who were armed with baseball bats.

70. The rifles and ammunition had belonged to his father. When his father died, the offender decided to keep them for protection, in case he was attacked again. He said that his knowledge of how to use firearms derived from shooting targets as well as kangaroos, pigs and rabbits when growing up on a farm. The firing range for those activities was usually 40-50m, but sometimes 100m. He did not have a firearms licence.

71. The offender said that he had a history of taking prohibited drugs. He was prescribed daily doses of methadone and for a period of three to four years, he had consumed about a gram of methylamphetamine (ice) every two days. He had abstained from that drug for a 50-day period prior to the incident and from cannabis for an extended period as well. At the same time, he had ceased smoking tobacco and was prescribed an anti-smoking medication, known as Champix.

72. The offender gave a history of his drug use on the day of the offences. He took his daily methadone dose that morning and at “lunchtime” he injected some ice. He did not inject it properly. It did not have an immediate effect, so he swallowed some ice “just to make sure that I did get something out of it”. During the course of the shooting, he swallowed some more ice. He said that altogether, he consumed about a gram of ice that day as well as cannabis. When asked how the ice affected him, he said that he was “fine … until things started to get me angry”. He described his state at the time of the shooting, “I was anxious. I was angry. I was, um, rageful. I was fuckin’ high as well”.

73. The offender told police that he started shooting with the .22 rifle and later used the 6.5mm rifle as well, because the .22 rifle:

“… wasn’t, um, getting them by the distance, it was too far. Like, it just wasn’t accurate enough from that distance so I went and got something that was a bit more accurate, a bit more power to it, yeah.

Q. Yep. And that’s the 6.5?

A. Yep.”

74. The offender described how he had become annoyed with the behaviour of some local youths, two teenage brothers and Stewart in particular, the latter for playing his music loudly. It had been a problem for him for over a year. He thought that abstaining from ice made him less tolerant of their behaviour:

“I’ve been off ice for 50 days … I was a junkie for years. As soon as I stopped, um, they didn’t like it, mate, right. And I started getting a bit aggro because, um, my head’s clearer … So I didn’t want to put up with their shit and they’re going like fuckwits all the time, so when I was clearer and clearer in my head I was getting sick of it quicker, you understand. I’ve never rung the police in my life … It would’ve probably backfired anyway … So no-one would’ve done nothing.”

75. The offender said their behaviour had recently worsened. When he went to sleep at night they would bang on his fence and throw things over it; he said “they’ve been really pushing it”.

76. The offender decided to fight Stewart, and with that in mind, approached him after he pulled up outside 28 Cutler Drive on the afternoon of 17 March 2020. When Stewart retreated to the house and would not come out, the offender set fire to his utility to force him to come out. When that caused a furore with the neighbours, the offender realised that the police would come and, to use his words, he decided he might as well “go hard”, so he went inside and started shooting:

“… one bloke just started on me yesterday. All night they were laughing and they kept fuckin’, he kept fuckin’ doing it … I can’t be responsible for my actions if you don’t stop it mate, and, or fight like a man. They wouldn’t fight me like a man, all right. He wouldn’t come over. He wouldn’t do anything. … I knew if I went over there it would cause problems. Today, he turned up at the end of the day, right, and I asked him out for … a fight, and he runs straight inside with no weapon. I had no weapon on me at that time, right. And, um, when … he run inside I told him, Get the fuck out here ... And then his woman said, um, Fuck off. And I said, shut the fuck up, cunt. It’s nothing to do with you, even though she was a part of it. And, um, I said, tell him to get the fuck out … here. He wanted it. He’s gunna get it mate. You know, you can’t fuckin’ just keep saying that to me and thinking they’re gunna get away with hurting … it’s mental. But they all think that they can fuckin’ just put me down … or better than me when they’re on drugs … I didn’t want to wreck the house … It wasn’t his house … He doesn’t live there. He brings trouble there. So I went and got the … petrol.… [I] poured it all over his car and lit it, for him to try and come out to fuckin’ have to put it out or have a crack at me. He didn’t … It is his car ‘cause he always revs his car and plays his music loud when he pulls up … Then I went back inside … I got another petrol and I came back out and poured it on again and lit it again. And then, um, everyone just started screaming and talking shit. And then I said, oh, fuck this shit. Fuck off, it’s none of your business … And they wouldn’t listen … And I said, oh, fuck this … I felt the police were coming anyway … so I thought, fuck it, I’m just gunna go hard, yeah … And that’s why I just went and got a gun and started shooting, yep.”

77. The offender said he started shooting with the intention of killing Stewart, who was in the house at 28 Cutler Drive. He said, “I didn’t know where he was in the house. I just started shooting up the house”. He said of his intention:

“Initially, it was to put the wind up ‘em, that’s why I aimed it up high. But, yeah, in the end it was, um, I knew it was fuckin’ serious and I was trying to do ‘em … Kill ‘em, mate, yeah.”

78. He said he was trying to kill, “The ones that were giving me a problem. There’s about half a dozen of ‘em, mate”. People were taking cover:

“… behind cars and stuff … people were being smart-arses and yelling things and shit, you know, and, um, basically challenging me, so I popped a round at ‘em, yeah.” [Q230-1]

79. The offender said he started shooting:

“… towards people … I don’t know specifically, but the people that were out there … There’s probably six or seven. And then eventually … the people that were always giving me a problem, the houses that were giving me the problems, mate.”

80. He continued:

“One where the … car was burning. In there, straight through … his car, that house. I started putting ’em through there, up high at first, but I wasn’t aiming, probably ‘cause of the ice. I didn’t know where the fuck it was. I wasn’t accurate. I wasn’t hitting what I wanted, okay. They were low sometimes. They were high sometimes. They were all over the shop. I did initially try to do a warning, then they started cracking up. Then I just fucken’ started going, trying to hit things, people, or through things, to take the vehicles out, and then to also hit them if I could, but they were all hiding.”

81. The offender was asked if he thought it was possible he would hit people when he was shooting into the houses. He replied, “Absolutely”. He was asked what he thought would happen if he shot someone. He replied that if he hit them in the head or the chest, “I’m sure they’d probably nearly die or probably die, and if it was somewhere else, be wounded, yep”.

82. The offender said, “I was hoping that I didn’t hit no fuckin’ kids, mate … I was worried about it”. He was asked if he knew whether there were any children in 28 Cutler Drive that day. He replied that he did not know, but then said there would have been, “but I didn’t even think of that when it all kicked off to be honest, man”.

83. He said that, “it wasn’t really to shoot to kill, but, yeah, half and half, yeah. Yeah, it was. Yeah, I suppose, yeah”. He agreed that he was trying to kill “just the three”, apparently meaning Stewart and the two teenaged brothers who lived nearby, as well as “shoot up” three houses and damage cars. However, his intentions changed, and he attempted to shoot people who were verbally abusing him from behind cars by shooting “through the car”. He said he was surprised when he heard “Di” (Ms Murray) say that she had been shot, saying, “I couldn’t believe it ’cause I didn’t fuckin’ mean to, not her I mean”.

84. The offender admitted shooting into 9 Cutler Drive and 2A Woodward Avenue, in both instances because of past grudges he had with the occupants. He said he did not know if the male who resided at 2A Woodward Avenue was home at the time, adding “I don’t think he was there”. He said he discharged that round from the front of his house, down the hall and through his back door. He said that he knew the round had penetrated the fence in the backyard.

85. He said he deliberately shot into 30 Cutler Drive because “the two brothers … they go there … They go out with their daughter”.

Victim impact statements

86. Victim impact statements were read at the sentence hearing by the deceased’s parents and sister. A victim impact statement by Stewart was read on his behalf and one by Ms Dickinson was tendered. The deceased’s sister related that she was present in the alleyway behind 28 Cutler Drive when the deceased’s body was brought out from the house. She was pregnant at the time. The trauma and consequent stress led to a decision by her doctors to induce her baby’s birth prematurely. She spoke movingly of the change that the loss of her brother had wrought upon her family and the effect it had on her other two children who had been old enough to know the deceased.

87. The deceased’s father, Albert, spoke of how he is forever haunted by the trauma of that evening; how the deceased, he and his wife had gone to help Stewart, and the deceased died in that attempt. He spoke of its permanent impact on his and his wife’s ability to cope with life generally, the loss of his employment and how depression and post-traumatic stress disorder had impacted on his ability to obtain further employment. He gave an account of the deceased’s positive and loving personality.

88. In his statement, Stewart referred to how the loss of his brother has changed his life forever. He misses his brother terribly. He referred to the injustice of someone who was so kind and gentle losing their life, and the continuing impact of the trauma.

89. The deceased’s mother, Cindy, referred to the deceased’s childhood; his cheeky and unconventional nature; his love of animals and how close he was to the family. She spoke of her devastation following his death; the need to be alone and not to have to deal with people; the panic attacks; the flashbacks; the triggering by backfiring cars, nail guns and other sudden noises; and the sense that somehow, she had failed the deceased. Her pain is compounded by the burden of knowing that her distress worries her family.

90. In her victim impact statement, Ms Dickinson referred to how the incident had irretrievably affected her family. They lived separately for eight months before they could be reunited in a new home. The sound of fireworks triggers them into “flight mode and body shakes”. She is so psychologically traumatised that she leaves home only for necessities. The knowledge that shrapnel remained in her body was a continuing source of anxiety.

91. Pursuant to s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), I take the victim impact statements into account in determining the appropriate punishment.

The issue of the offender’s mental condition

92. The only issue at the trial concerned the offender’s mental condition at the time of the incident. In relation to each of the seven counts, the issue was whether, consequent to a mental health impairment or a cognitive impairment, the offender was not criminally responsible for the act that constituted the offence, because he did not know that the act was wrong. That is, he could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong: s 28(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MH & CIFP Act). If made out, that circumstance would constitute a complete defence to each count. Section 28 provides as follows:

“28   Defence of mental health impairment or cognitive impairment

(1)   A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person—

(a)   did not know the nature and quality of the act, or

(b)   did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

(2)   The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities.

(3)   Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect.

(4)   In this Part, act includes—

(a)   an omission, and

(b)   a series of acts or omissions”

93. The terms “mental health impairment” and “cognitive impairment” are defined in the MH & CIFP Act as follows:

“4   Mental health impairment

(1)   For the purposes of this Act, a person has a mental health impairment if—

(a)   the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b)   the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c)   the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2)   A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a)   an anxiety disorder,

(b)   an affective disorder, including clinical depression and bipolar disorder,

(c)   a psychotic disorder,

(d)   a substance induced mental disorder that is not temporary.

(3)   A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—

(a)   the temporary effect of ingesting a substance, or

(b)   a substance use disorder.

5   Cognitive impairment

(1)   For the purposes of this Act, a person has a cognitive impairment if—

(a)   the person has an ongoing impairment in adaptive functioning, and

(b)   the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c)   the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

(2)   A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—

(a)   intellectual disability,

(b)   borderline intellectual functioning,

(c)   dementia,

(d)   an acquired brain injury,

(e)   drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f)   autism spectrum disorder.”

94. There were alternative counts available for some of the charges. In relation to the count of murder, one involved the offender’s mental condition at the relevant time, which is the partial defence of substantial impairment because of mental health impairment or cognitive impairment (substantial impairment) pursuant to s 23A of the Crimes Act 1900 (NSW). Section 23A relevantly provides as follows:

“23A   Substantial impairment because of mental health impairment or cognitive impairment

(1)   A person who would otherwise be guilty of murder is not to be convicted of murder if—

(a)   at the time of the acts or omissions causing the death concerned, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment, and

(b)   the impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

(2)   For the purposes of subsection (1) (b), evidence of an opinion that an impairment was so substantial as to warrant liability for murder being reduced to manslaughter is not admissible.

(3) If a person was intoxicated at the time of the acts or omissions causing the death concerned, and the intoxication was self-induced intoxication (within the meaning of section 428A), the effects of that self-induced intoxication are to be disregarded for the purpose of determining whether the person is not liable to be convicted of murder by virtue of this section.

(4)   The onus is on the person accused to prove that he or she is not liable to be convicted of murder by virtue of this section.

(5)   A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder is to be convicted of manslaughter instead.

(6)   The fact that a person is not liable to be convicted of murder in respect of a death by virtue of this section does not affect the question of whether any other person is liable to be convicted of murder in respect of that death.

(7)   If, on the trial of a person for murder, the person contends—

(a)   that the person is entitled to be acquitted on the ground that the person was not criminally responsible because of mental health impairment or cognitive impairment, or

(b)   that the person is not liable to be convicted of murder by virtue of this section,

evidence may be offered by the prosecution tending to prove the other of those contentions, and the Court may give directions as to the stage of the proceedings at which that evidence may be offered.”

95. The terms “cognitive impairment” and “mental health impairment” are defined in the Crimes Act in identical terms to their definitions in the MH & CIFP Act. ^[1]

    1. The definition of “cognitive impairment” is at s 23A(8) of the Crimes Act and the definition of a “mental health impairment” is in s 4C of the Crimes Act.

96. Although the jury, by its verdicts, found that the complete and partial defences were not made out, it is necessary for the Court, in determining sentence, to assess whether the evidence as to the offender’s mental state is nevertheless relevant according to the principles enunciated in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178].

97. The offender told police during the videoed interview that he had been diagnosed as having “borderline bipolar … anxiety, mood swings … obsessive compulsive, addicted personality”. He said that he had recently seen a psychologist. He said:

“… just recently I asked for some help because I was unstable and got the Valproate back, … I’ve got a mood problem, and that used to calm me right down, but I didn’t take it ‘cause … it takes your balls away basically and, even if someone is killing your family you couldn’t do nothing about it. … I felt I couldn’t let my guard down…. I wouldn’t be able to do nothing about it and they would’ve escalated things, thinking they could bash you or something …”

Expert evidence at trial as to the offender’s mental condition

Dr Michael Edwards, psychiatrist

98. The offender saw Dr Michael Edwards, a psychiatrist, on 4 March 2020, which was 13 days before the incident. At the time, Dr Edwards was a visiting medical officer at Wyong Hospital. He gave evidence that the offender was referred to him for a psychiatric assessment by the director of the Wyong Hospital drug and alcohol service, who had concerns as to the offender’s mental state.

99. Dr Edwards’ recollection of that assessment was substantially assisted by notes that he made at the time. According to Dr Edwards, the offender said that he had recently stopped “heavy … use” of cannabis and ice and that he had “ongoing withdrawals, insomnia, agitation, sweating”. The offender complained of mood swings and episodes of uncontrollable rage, which he (the offender) attributed to a brain injury that he suffered 20 years before. A secondary concern that the offender expressed to Dr Edwards was about his neighbours:

“They talk about him, call him names and taunt him … He knows this through the hairs on the back of his neck … Their glances mean something menacing”.

100. Dr Edwards’ notes also recorded:

“Past auditory hallucinations which have lessened since he stopped drugs. However, he still hears his name called or other noises. Sometimes his neighbours, often not. … Has a loosely formulated plan to kill his neighbours as well as himself in 12 months after he saves enough money to buy necessary items, for example petrol and knives. … On discussion, he realises it is morally wrong and actually does not wish to do it in many ways. Ambivalent. No immediate plans.”

101. Dr Edwards said that he inferred from what the offender told him that he had auditory hallucinations. He noted that there was “Persecutory delusional thinking which is almost amenable to challenge/reflection”. He explained that, by this note, he meant that:

“[The offender’s] willingness to get help, his recognition of his problematic mood swings and rage and his willingness to see a psychiatrist and be referred to mental health services, ongoing follow up, led me to believe that he was on the kind of threshold of developing more insight and that we could take advantage of that by working closely with him. If he had’ve been out on his own in the community having these experiences, they may have just multiplied and grown into a sort of dangerous delusional system, whereas with intervention and the use of cognitive behavioural strategies to challenge his thinking, which might be along the lines of ‘Well, you know, what are the other possible explanations for this’, or you’ve mentioned that you hear the voices of other people as well, you may be able to develop insight, which is one of the key aims of psychiatric treatment.”

102. Dr Edwards recorded his impressions of the offender’s mental state, which he described in evidence as a provisional diagnosis, of “organic psychosis”, “head injury”, “heavy substance use”, “likely to improve with time”.

103. Dr Edwards noted that the offender “was fairly socially isolated and expressing a desire to be with other people and talk things through”, so he advised him to join a Men’s Shed. Dr Edwards noted at the time that he formed the opinion that the offender was “open and honest” and had a desire to get help. He did not arrange to see the offender again, in view of his status as a visiting medical officer.

104. Dr Edwards prescribed the medication sodium valproate, which is an anti-epileptic medication, for the offender. He explained why as follows:

“My hypothesis, my provisional diagnosis was that this was a seizure-related phenomena in part and there was a self-report from the … ex-partner … that on the epilepsy medication he improved quite a lot. On that basis … [if it] be related to an epileptic disorder, one would treat it with an epileptic medication rather than an antipsychotic medication and one reason for that is because antipsychotic medications sometimes increase seizure activity and they’re often not effective for epilepsy or that kind of organic-related psychosis. So usually the standard treatment would be to start with an antiepileptic medication unless the patient was so severely psychotic that he required immediate sedation and one would probably - I think most of my colleagues would start an antipsychotic if he, for example, needed to be in hospital for treatment.”

105. Dr Edwards wrote: “Consider anti-psychotic if psychotic symptoms do not resolve”. As noted, the offender told police he ceased taking the valproate medication.

106. The offender’s extensive medical records since 2000 were obtained by the parties and made available to forensic witnesses who were called to give evidence in the trial. The Crown did not dispute that the offender had suffered a brain injury in the course of an assault in 2000. Records established that, following the assault, the offender was taken by ambulance to John Hunter Hospital in Newcastle for assessment.

107. I note the offender’s comment to Dr Edwards that his neighbours’ behaviour affected the hairs on the back of his neck and similar comments made on the day of the incident to Ms Dickinson and to police.

Dr Sally Ann McSwiggan, neuropsychologist

108. Dr Sally Ann McSwiggan, a clinical neuropsychologist, gave evidence in the trial that she clinically assessed the offender in September 2022. She assessed him as having suffered a mild traumatic brain injury, based on the CT scan and the Glasgow coma scale result of 13 out of 15 when he was admitted to hospital in 2000, following the incident. His performance validity testing scored at a lower level than for a person with a more severe brain injury, which was suggestive of his test results not being valid. The possible explanations included that he was not putting in enough effort, either consciously or unconsciously.

109. Dr McSwiggan concluded that, prior to the offender’s head injury, his intellectual functioning would have been “in the low average range” and, as of September 2022, it was “within the normal range of intellectual functioning, with marked deficits recorded in the areas of simple attention, working memory and new learning” with no obvious deficits in executive functioning.

142. He then travelled around, largely with his father, who he described as “a manly person”. Dr Eagle considered that might give some insight into the role-modelling that he received when he was young. The offender said his father had burnt him with a cigarette lighter and hit him with an ironing cord when he was a young child. When the offender absconded, Dr Eagle said:

“He lived in refuges and foster care, which describes a very itinerant and unstable life as a very young child. He became a ward of the State, so he was placed into institutional care.”

146. In written submissions on sentence, the offender said that he had a child with his partner and adopted a child of his partner’s. His partner attempted to assist him with rehabilitative services for his brain injury, but after a relationship of ten years, she left him because of his aggressive behaviour.

147. In a letter tendered to the Court, one of the offender’s daughters referred to the protective and caring relationship she had enjoyed with him. She had effectively been rescued by him from foster care, and raised by him as a single parent through her teenage years. She stated that the offender and his former partner enjoyed a good relationship after they separated. Sadly, the offender’s former partner passed away in early 2022.

The relevance of the offender’s childhood: Bugmy v The Queen

148. I take into account that the offender’s exposure to violence of and by his father, his history of child sexual abuse and general neglect as relevant features of his background for sentencing purposes, pursuant to the principle enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43]. However, the manner in which it is relevant, in the circumstances of this case, is not exclusively mitigatory. In Bugmy the plurality said, at [44]:

“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.”

Remorse

149. Dr Pulman agreed in evidence that the offender appeared to her to be genuinely remorseful and ashamed of his actions. The offender’s daughter stated in her letter to the Court that she believed her father was genuinely remorseful, as did the offender’s former father-in-law, in a letter to the Court.

150. The offender tendered a brief letter addressed to the Court and the deceased’s family, in which he expressed heavily qualified regret for his actions. He maintains that at the time, due to a combination of his brain injury, mental ill-health and drugs, he did not realise that what he did was wrong and that while the deceased’s parents had lost their son, so the offender’s children and grandchildren had “lost” him, because now they could only see him in prison.

151. I find that the offender has not accepted responsibility for the offences and has little insight into their effect on the victims and their families. I find that the offender’s degree of remorse is qualified.

The offender’s prospects of rehabilitation

152. The offender’s prospects of rehabilitation are uncertain. It is difficult to predict whether, or to what extent, he may evolve in his understanding of the offences he has committed over the course of his sentence. As noted, he presently has little insight. The fact that he has a minor criminal history, so that this is an isolated (albeit extreme) episode of violence, and that in the past he attempted rehabilitation for his brain injury are positive indicators.

A sentence of imprisonment

153. I am satisfied that no penalty other than imprisonment is appropriate for each offence. I have regard to the standard non-parole periods of each offence as a signpost. The sentence imposed incorporates consideration of the matters identified in s 3A of the CSP Act. In formulating the sentence, the principle of totality has been applied, so as to achieve an overall sentence that is proportionate to the offender’s criminality.

Effects of prohibited drugs

154. I disregard the effects of the methylamphetamine and cannabis on the offender for the purposes of the sentencing exercise: s 21A(5AA) of the CSP Act.

An administration of justice consideration

155. The offender facilitated the administration of justice by being a party to agreed facts that kept the evidence adduced in the Crown case to a minimum. The offender’s case at trial was focussed exclusively on the issue of whether he had available to him a complete or partial defence arising from his mental state at the time of the offences. That being so, pursuant to s 22A of the CSP Act, I have applied a modest reduction to the sentences.

Special circumstances

156. I find special circumstances are made out on the basis of the offender’s cognitive impairment, which will necessitate a lengthy period of parole to ensure that his rehabilitation and readjustment to living in the community. The non-parole period will be lengthy in any event, so the modification of the non-parole period ratio is relatively minor.

Maximum penalties

157. The maximum penalty for the offence of murder is life imprisonment (Crimes Act, s 19A(1)), although it may be reduced to a sentence of imprisonment for a specified term (CSP Act, s 21(1)), subject to the Court’s finding as to the offender’s level of culpability (CSP Act, s 61(1)). If a sentence of imprisonment for a specified term is imposed, a standard non-parole period applies, which is 20 years in the circumstances of this case.

158. The maximum penalty for the offence of discharging a firearm with intent to cause grievous bodily harm is imprisonment for a period of 25 years (Crimes Act, s 33A(1)(a)). There is a standard non-parole period of 9 years.

159. The maximum penalty for the offence of firing a firearm into a dwelling house with reckless disregard for the safety of any person is imprisonment for a period of 14 years (Crimes Act, s 93GA(1)). There is a standard non-parole period of 5 years.

Sentence

160. The offender is sentenced to an aggregate term of imprisonment of 42 years, backdated to commence on 17 March 2020 and to conclude on 16 March 2062, with an aggregate non-parole period of 30 years, so that the offender will be eligible for parole on 16 March 2050.

161. I provide the following indicative sentences: for the count of murder, a total sentence of 34 years and a non-parole period of 24 years. For counts 2 and 3, a sentence of 14 years with a non-parole period of 10 years. For each of counts 4 to 7, a sentence of 9 years with a non-parole period of 6 years and 6 months.

162. For the s 166 certificate offences of possessing an unregistered firearm, possessing an unauthorised prohibited firearm, the two counts of possessing a prohibited weapon without a permit, destroy or damage property and stalk/intimidate, the indicative sentence is 2 years for each offence.

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Endnote

Decision last updated: 14 March 2023