White v The King

[2025] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

White v R [2025] NSWCCA 141

Hearing dates:

9 July 2025

Date of orders:

12 September 2025

Decision date:

12 September 2025

Before:

Price AJA at [1];
N Adams J at [164];
Sweeney J at [165]

Decision:

(1)   Extend the time for leave to appeal against conviction and sentence.

(2)   Leave to appeal against conviction is granted.

(3)   Dismiss the appeal against conviction.

(4)   Leave to appeal against sentence is granted.

(5)   Dismiss the appeal against sentence.

Catchwords:

CRIME – appeals – appeal against conviction – murder – where applicant fired 226 cartridges – whether adequate directions given to the jury on the standard of proof for partial defence of substantial impairment – standard of proof – where asserted failure by the judge to explain the meaning of balance of probabilities to the jury in relation to partial defence of substantial impairment – where jury directed on the full defence of mental illness – balance of probabilities – where jury directed balance of probabilities means more likely than not – where directions not given in the terms of R v Porter or the Criminal Trial Courts Bench Book – where no objection taken at trial to the directions given – where jury did not request clarification on the meaning of balance of probabilities – whether miscarriage of justice

CRIME – appeals – appeal against conviction – summing up – whether adequate summing up of the defence case – whether summing up when read as a whole is fair, balanced and impartial

CRIME – appeals – appeal against sentence – whether the judge erred in assessment of objective seriousness – whether sentence is manifestly excessive – whether the judge gave insufficient weight to the applicant’s subjective factors

CRIME – appeals – appeal against sentence – whether the judge failed to give meaningful effect to finding of special circumstances – where modest reduction in variation to statutory ratio – whether degree of adjustment within sentencing discretion

Legislation Cited:

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

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A, 44

Crimes Act 1900 (NSW), ss 18, 19A, 23A, 33A, 93GA

Criminal Appeal Act 1912 (NSW), ss 5, 6

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, 23A, 28, 30, Pt 3

Weapons Prohibition Act 1998 (NSW), s 7

Supreme Court (Criminal Appeal) Rules 2021 (NSW), rr 3.1, 3.5, 4.15

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872

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

Caristo v R [2011] NSWCCA 7

Chandler v R [2022] NSWCCA 124

Chang v R [2016] NSWCCA 296

CM v R [2013] NSWCCA 341

Crane v R [2024] NSWCCA 87; (2024) 107 MVR 272

Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

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

Green v The Queen (1971) 126 CLR 28; [1971] HCA 55

Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hughes v R [2018] NSWCCA 2

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439

MD v R [2015] NSWCCA 37

Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77

Mulato v R [2006] NSWCCA 282

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

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325

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

R v Abdallah (No 7) [2014] NSWSC 829

R v Abusafiah (1991) 24 NSWLR 531; (1991) 56 A Crim R 424

R v Aziz [1982] 2 NSWLR 322

R v Filippou [2011] NSWSC 1607

R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1

R v Grattan [2005] NSWCCA 306

R v Haeney (Court of Criminal Appeal (NSW), 13 June 1978, unrep)

R v Matheis (1958) 58 SR (NSW) 321

R v Porter (1933) 55 CLR 182; [1933] HCA 1

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

R v Tuala [2015] NSWCCA 8; (2015) 248 A Crim R 502

R v White [2023] NSWSC 193

R v White [2025] NSWCCA 111

Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27

Testalamuta v R [2007] NSWCCA 258

TH v R [2025] NSWCCA 121

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

Vragovic v R [2007] NSWCCA 46

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Texts Cited:

Judicial Commission of New South Wales, Criminal Trial Courts Bench Book

Category:

Principal judgment

Parties:

Bradley Jason Mark White (Applicant)
Rex (Respondent)

Representation:

Counsel:
J Stratton SC (Applicant)
A Bonnor (Respondent)

Solicitors:
Dib & Associates Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2020/85591

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name or any matter which could identify any child at the time the offence was committed is prohibited.

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law – Criminal

Citation:

[2023] NSWSC 193

Date of Decision:

14 October 2022

Before:

Ierace J

File Number(s):

2020/85591

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 October 2022, the applicant, Bradley Jason Mark White, was found guilty by a jury following a trial before Ierace J (“the judge”) in the Supreme Court of New South Wales on one count of murder of Byron Tonks (“the deceased”) contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Count 1”), two counts of discharge a firearm with intent to cause grievous bodily harm contrary to s 33A(1)(a) of the Crimes Act (“Counts 2 and 3”); and four counts of firing a firearm at a dwelling house with reckless disregard for the safety of any person contrary to s 93GA(1) of the Crimes Act (“Counts 4, 5, 6 and 7”). There were also six related offences on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

On 10 March 2023, the judge sentenced the applicant to an aggregate term of imprisonment of 42 years commencing on 17 March 2020 and expiring on 16 March 2062, with an aggregate non-parole period of 30 years.

The applicant’s offending relates to his shooting committed on 17 March 2020, where he used two different rifles to shoot from his house at 7A Cutler Drive towards the people in the residence diagonally across the street at 28 Cutler Drive (“the House”), neighbouring houses on Cutler Drive and vehicles.

There were around 13 people at the House when it was shot at by the applicant. The applicant’s shooting continued for over 45 minutes and he intended to kill one of the occupants of the House. The shooting ended when the applicant surrendered to the police. The nature of the applicant’s shooting was extraordinarily serious with 226 cartridges fired and resulting in the death of the deceased, injuries to multiple other people and bullet impact damage to the House, neighbouring houses and vehicles.

At trial, there was no dispute that the applicant had committed the physical elements of the offences. The issues turned on whether the applicant had established the “full” defence of mental health impairment or cognitive impairment pursuant to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), in respect of all the charges or in respect of the charge of murder, and whether he had established the “partial” defence in s 23A of the Crimes Act, so that his liability for murder was reduced to manslaughter. The jury found that the applicant had neither proved the full defence nor the partial defence.

There was no objection at trial to the judge’s directions given to the jury in relation to the standard of proof for both the full defence or the partial defence. Further, there was also no objection to the judge’s summing up of the defence case.

The applicant sought leave to appeal against his conviction on two grounds:

Ground 1: [the judge] did not give the jury adequate directions on the standard of proof for the partial defence of substantial impairment.

Ground 2: [the judge] did not adequately summarise the defence case to the jury.

He sought leave to appeal against his sentence on two grounds which included multiple sub-grounds:

Ground 3: the sentence imposed upon the applicant was manifestly excessive.

…

(3) the indicative sentences for counts 1, 2 and 3 were manifestly excessive; and

(4) [the judge] gave insufficient weight to the subjective factors.

Ground 3A: [the judge] erred in finding that the murder charge (count one) was well above the mid-range of objective seriousness;

Ground 3B: [the judge] erred in finding that the counts of discharging a firearm with intent to inflict grievous bodily harm (counts 2 and 3) were slightly above the mid-range of objective seriousness;

Ground 4: [the judge] erred in not giving effect to his Honour’s finding that there were special circumstances justifying a variation from the statutory ratio between the non-parole period and the parole period of the aggregate sentence.

The Court held (Price AJA, N Adams and Sweeney JJ agreeing), granting leave to appeal against conviction and sentence but dismissing the appeals:

As to Ground 1:

1. The applicant’s complaint of error was confined to the judge not explaining to the jury the meaning of “balance of probabilities” in the context of the partial defence. The applicant accepted that the judge told the jury that the burden of proof the applicant bore on the partial defence was on the balance of probabilities; that the term “balance of probabilities” was explained as meaning “more likely than not” in the context of the full defence and it was made clear that the balance of probabilities was a lesser standard than the onus resting on the Crown to establish the elements of the offences beyond reasonable doubt: [40] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

2. The jury would have been thoroughly aware that the explanation of the balance of probabilities as meaning “more likely than not” or “more probable than not” applied to the partial defence as well as the full defence. There is no reasonable possibility that the jury would not have appreciated that the explanation applied to both defences. This conclusion is fortified given that counsel at trial did not seek further directions nor did the judge receive a note from the jury on this issue: [40]-[63] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

R v Porter (1933) 55 CLR 182; [1933] HCA 1, considered.

R v Matheis (1958) 58 SR (NSW) 321; Mizzi v The Queen (1960) 105 CLR 659; [1960] HCA 77; Green v The Queen (1971) 126 CLR 28; [1971] HCA 55; R v Haeney (Court of Criminal Appeal (NSW), 13 June 1978, unrep); R v Aziz [1982] 2 NSWLR 322; R v Abusafiah (1991) 24 NSWLR 531; (1991) 56 A Crim R 424; R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1; R v Grattan [2005] NSWCCA 306; Chang v R [2016] NSWCCA 296, cited.

3. The contended failure by the judge to explain the meaning of “balance of probabilities” in the context of the partial defence did not give rise to a miscarriage of justice: [62] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872, cited.

As to Ground 2:

4. When the summing up is considered as a whole, all of the issues raised on the applicant’s behalf were put before the jury in such a way as to allow the jury to properly consider those issues. The summing up was fair, balanced and impartial: [71]-[79] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325; Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71, cited.

As to Grounds 3A and 3B:

5. It has long been held that the assessment of the objective seriousness of an offence is quintessentially for the sentencing judge; that there is a need for appellate caution and restraint in this Court substituting its own view of the objective seriousness for that of the sentencing judge and the question to be asked is whether the assessment of objective seriousness was open to the sentencing judge: [116] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

Mulato v R [2006] NSWCCA 282; R v White [2025] NSWCCA 111, cited.

6. The extent of the damage demonstrates the applicant’s determination to kill Stewart even though he was aware others were in the House. The judge correctly observed that it was irrelevant the person the applicant killed was not the person he intended to kill: [119] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27, cited.

7. The applicant did not identify any specific House v The King (1936) 55 CLR 499; [1936] HCA 40, error but placed some reliance on R v Filippou [2011] NSWSC 1607 (“Filippou”) and R v Abdallah (No 7) [2014] NSWSC 829 (“Abdallah (No 7)”). Neither Filippou nor Abdallah (No 7) demonstrated that it was not open to his Honour to assess the objective seriousness of Count 1 to be well above mid-range: [117]-[122], [129] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

R v Filippou [2011] NSWSC 1607; R v Abdallah (No 7) [2014] NSWSC 829, distinguished.

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, cited.

8. The applicant’s criticism of the judge’s assessment of the objective seriousness of Counts 2 and 3 being slightly above the mid-range focused on what were referred to as the “very limited” injuries suffered by Pamela Dickinson and Albert Tonks. The description of the injuries suffered by each victim as being very limited cannot be accepted. The circumstances surrounding the wounding of each victim were plainly terrifying and the seriousness of the applicant’s offending was of a high order: [117], [123]-[129] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439, considered.

R v Tuala [2015] NSWCCA 8; (2015) 248 A Crim R 502; Chandler v R [2022] NSWCCA 124, distinguished.

Vragovic v R [2007] NSWCCA 46; Testalamuta v R [2007] NSWCCA 258, cited.

As to Ground 4:

9. The judge took into account the lengthy period the applicant would be on parole if no adjustment was made to the statutory ratio and intentionally allowed an additional period on parole by 1 year and 6 months which his Honour acknowledged was “relatively minor”. The degree of adjustment was well within his Honour’s sentencing discretion: [133]-[136] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

Caristo v R [2011] NSWCCA 7; CM v R [2013] NSWCCA 341; MD v R [2015] NSWCCA 37; Crane v R [2024] NSWCCA 87; (2024) 107 MVR 272, cited.

As to Ground 3:

10. The judge carefully considered the applicant’s subjective case which he balanced against the gravity of his offending. His Honour did not give insufficient weight to the applicant’s subjective factors: [147]-[152] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38, considered.

11. The applicant’s offending was extraordinarily serious and the applicant has not established that the aggregate sentence was manifestly excessive: [146], [153]-[162] (Price AJA), [164] (N Adams J), [165] (Sweeney J).

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Hughes v R [2018] NSWCCA 2; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336; TH v R [2025] NSWCCA 121, cited.

JUDGMENT

1. PRICE AJA: The applicant, Bradley Jason Mark White, was found guilty by a jury on 14 October 2022 of the following offences:

1. one count of murder of Byron Tonks (“the deceased”), contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (“Count 1”), which carries a maximum penalty of life imprisonment: s 19A(1) of the Crimes Act.

2. two counts of discharge a firearm with intent to cause grievous bodily harm, contrary to s 33A(1)(a) of the Crimes Act (“Counts 2 and 3”), which carries a maximum penalty of 25 years imprisonment with a standard non-parole period (“SNPP”) of 9 years; and

3. four counts of firing a firearm at a dwelling house with reckless disregard for the safety of any person, contrary to s 93GA(1) of the Crimes Act (“Counts 4, 5, 6 and 7”), which carries a maximum penalty of 14 years imprisonment with a SNPP of 5 years.

2. There were six related offences pursuant to s 166 of the Criminal Procedure Act 1986 (NSW), namely:

1. possess an unregistered firearm, contrary to s 36(1) of the Firearms Act 1996 (NSW);

2. possess an unauthorised prohibited firearm, contrary to s 7(1) of the Firearms Act;

3. two offences of possess a prohibited weapon without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW); and

4. two offences of stalking or intimidation with intent to cause fear of physical or mental harm, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

3. On 10 March 2023, Ierace J (“the judge”) sentenced the applicant to an aggregate term of imprisonment of 42 years commencing on 17 March 2020 and expiring on 16 March 2062, with an aggregate non-parole period (“NPP”) of 30 years. The applicant will be eligible for release to parole on 16 March 2050.

4. The applicant seeks leave to appeal against his conviction and sentence. He appeals against his conviction on the following grounds:

“Ground 1: [the judge] did not give the jury adequate directions on the standard of proof for the partial defence of substantial impairment.

Ground 2: [the judge] did not adequately summarise the defence case to the jury.”

5. The applicant acknowledges that in respect of Ground 1 as there was no objection to the judge’s directions given to the jury in relation to the standard of proof for both the defence of mental health impairment or cognitive impairment and the partial defence of substantial impairment, r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) (“SCCAR”) applies to this ground of appeal and accordingly, leave is required. Furthermore, r 4.15 of the SCCAR applies in respect of Ground 2 as no objection was taken to the judge’s summary of the defence case.

6. The applicant also requires leave pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of Ground 2 as this ground does not involve a question of law alone.

7. As to his appeal against sentence, during the hearing the applicant was granted leave to amend the grounds of appeal. Accordingly, he now appeals against his sentence on the following grounds:

“Ground 3: the sentence imposed upon the applicant was manifestly excessive.

…

(3) the indicative sentences for counts 1, 2 and 3 were manifestly excessive; and

(4) [the judge] gave insufficient weight to the subjective factors.

Ground 3A: [the judge] erred in finding that the murder charge (count one) was well above the mid-range of objective seriousness;

Ground 3B: [the judge] erred in finding that the counts of discharging a firearm with intent to inflict grievous bodily harm (counts 2 and 3) were slightly above the mid-range of objective seriousness;

Ground 4: [the judge] erred in not giving effect to his Honour’s finding that there were special circumstances justifying a variation from the statutory ratio between the non-parole period and the parole period of the aggregate sentence.”

Extension of time

8. The Notice of Intention to Appeal was filed on 3 April 2023 which was within time. However, the Notice of Appeal was not filed until 8 April 2025 and is well outside the 12 month period during which the Notice of Intention to Appeal had effect: rr 3.1(3), 3.5(2)(a), 3.5(5) of the SCCAR. An affidavit of the applicant’s solicitor sworn on 7 July 2025 has been filed in support of the application for an extension of time. The Crown did not oppose an extension of time being granted.

The issues at trial

9. There was no dispute at trial that the applicant had committed the physical elements of the offences. The issues at trial were whether the applicant had established the “full” defence of mental health impairment or cognitive impairment pursuant to s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“MHCIFPA”), in respect of all charges or in respect of the charge of murder, whether he had established the “partial” defence in s 23A of the Crimes Act, as to warrant the applicant’s liability for murder being reduced to manslaughter.

10. Part 3 of the MHCIFPA provides for the full defence of mental health impairment or cognitive impairment, for which s 28 is the relevant provision, and if established, the jury must return a special verdict of “act proven but not criminally responsible”: s 30 of the MHCIFPA. The definition of “mental health impairment” and “cognitive impairment” is provided under ss 4 and 5 of the MHCIFPA.

11. The defence under s 28(1) of the MHCIFPA has two limbs. The first limb provides that 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 impairment or a cognitive impairment, or both: s 28(1) of the MHCIFPA. The second limb is that the relevant impairment had the effect that the person (ss 28(1)(a)-(b)):

1. did not know the nature and quality of the act, or

2. 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).

12. Section 28(2) of the MHCIFPA states that:

“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.”

13. The partial defence to murder of substantial impairment is found in Pt 3 of the Crimes Act. Section 23A(1) of the Crimes Act provides:

“(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.”

14. The onus is on the accused to prove that he is not liable to be convicted of murder under s 23A(4) of the Crimes Act. Where the partial defence is established such a person “but for this section would be liable … to be convicted of murder is to be convicted of manslaughter instead”: s 23A(5) of the Crimes Act.

15. The Crown called two neuropsychologists, Dr Sally Ann McSwiggan and Dr Susan Pulman, and two psychiatrists, Dr Michael Edwards and Dr Kerri Eagle. The applicant called Dr Richard Furst, a forensic psychiatrist.

16. It is evident from the jury’s verdicts of guilty on all counts that the jury found the applicant had neither proved the full defence nor the partial defence.

Background

17. As the focus of the applicant’s conviction appeal is confined to the judge’s summing up to the jury, it is not necessary for the determination of the grounds of appeal to recount all of the evidence at trial. Accordingly, what follows is not an exhaustive summary of the factual background and evidence at trial and is relevantly drawn from the judge’s sentencing judgment in R v White [2023] NSWSC 193 (“SJ”). As mentioned by the judge at SJ[6], I will adopt the pseudonyms given to the younger brother of the deceased and the child of Pamela Dickinson, who was in a relationship with him at the time namely, “Stewart” and “Carol”. As the judge referred to certain people by their first name, for convenience, I will do the same and in doing so, I intend no disrespect.

18. At the time of the offending, the applicant was 40 years old and lived by himself at 7A Cutler Drive. He had lived at that residence for about 12 years, initially with his wife and two daughters and then after they left, on his own.

19. The applicant possessed and used two different rifles during the shooting; one which was a bolt action manually reloaded 6.5mm calibre rifle and the other, a shortened .22 calibre self-loading rifle which could fire multiple rounds in quick succession and was fitted with two different sized magazines holding either 10 or 20 rounds of ammunition.

20. Pamela Dickinson lived with her three children, Elizabeth, Joshua and Carol at 28 Cutler Drive (“the House”), which is located diagonally opposite to the applicant’s residence. Ms Dickinson’s niece, Hayley Dickinson, her two young children, who were aged 1 and 2 years old and Stewart, who was in a relationship with Carol, also stayed at the House and were all at the premises during the shooting.

21. Prior to March 2019, the applicant had a friendly relationship with the neighbouring residents on Cutler Drive. However, in the months leading up to March 2020 this had deteriorated and the applicant had shown increasing animosity towards his neighbours particularly to Stewart.

22. The applicant was annoyed at Stewart because of his behaviour of playing loud music in his car. In the 3 months prior to March 2020, the intensity of the applicant’s animosity towards Stewart increased to the point that there was an incident occurring between them at least once a week.

23. On 17 March 2020, shortly before 6:00pm, Stewart drove to the House and parked his car on the street outside. As Stewart made his way towards the House, the applicant came out of his house from across the street and followed Stewart to the front door. Stewart ran inside the House and Carol locked the front door, but the applicant remained outside banging on the door and demanding that Stewart come outside.

24. Carol called Ms Dickinson and then the police for help. In a distressed state, Stewart called his cousin, who was nearby, and his parents, Cindy and Albert Tonks, and also spoke to the deceased, his brother. Stewart had told his parents that he thought he was going to die. Immediately following Stewart’s call his cousin, parents and the deceased all made their way towards the House.

25. The applicant then doused Stewart’s car with a liquid and set it alight causing the vehicle to catch on fire. The applicant lit Stewart’s car on fire twice. Both times the fires were extinguished by a group of people who were with one of the neighbouring residents, Dyann Murray.

26. After igniting Stewart’s car, the applicant went back inside his house but only to re-emerge with a homemade spear. Ms Dickinson, Hayley and Elizabeth stopped their car on the side of the street adjacent to the applicant’s residence. The applicant approached them in the vehicle holding the spear and said to Ms Dickinson “[g]et the boy [Stewart] out of the house”. Ms Dickinson closed the car door and they then drove off doing a U-turn and parked behind Stewart’s car.

27. As Ms Dickinson got out of the car and headed towards the front verandah of the House, the applicant came out from the front door of his house holding a firearm and shot at her. One of the shots fired struck her in the back and the impact pushed her to fall down onto the lounge room floor.

28. The applicant continued shooting towards the House, neighbouring houses and vehicles. Mr Tonks, who was taking cover with his wife behind their car parked on the street outside the House, stood up and was shot by the applicant in the right shoulder. He then ran into the House. One of Ms Murray’s daughters, Jennifer, also ran into the House and sustained an injury to her finger.

29. At around 6:08pm, the first police officers arrived on the scene and observed the applicant shooting the firearms from his balcony and from inside his house. The police saw the applicant quickly emerge from his house fire two or three shots and then retreat back inside the house. At one point, the applicant pointed a firearm in the direction of a police officer, who took cover and then heard multiple shots being fired.

30. At around 6:13pm, the deceased entered the lounge room in the front of the House and was shot in the right side of his chest. He fell on the floor and said that he could not breathe. The applicant continued shooting at the House as the deceased was moved out of the lounge room. Stewart and Mr and Mrs Tonks tried to assist the deceased, but he lost consciousness and became unresponsive by 6:31pm.

31. As the applicant continued shooting at the House, the police evacuated everyone who was inside via the back window including the deceased who was carried out. The deceased was pronounced dead by paramedics at 6:55pm, he was 20 years old.

32. The applicant continued shooting until about 7:02pm. He spoke to his daughter on the phone and had told her he was willing to surrender. The applicant’s daughter approached the police and told them he wanted to surrender. The police spoke to the applicant on the phone and he said he would “have a cone” before he surrendered. At 7:15pm, the applicant surrendered to the police and was taken into custody.

Ground 1: [the judge] did not give the jury adequate directions on the standard of proof for the partial defence of substantial impairment

The applicant’s submissions

33. The applicant submitted that in failing to direct the jury that in relation to the partial defence, the applicant was required to prove its case on the “balance of probabilities”, meaning that its case was more probable than not, the judge did not adequately give the jury directions on the standard of proof for that defence.

34. The applicant referred to the classical statement or model direction to be given to a jury where the defence of mental illness (“the full defence”) is raised as stated by Dixon J in R v Porter (1933) 55 CLR 182 at 183-184; [1933] HCA 1 (“Porter”). The applicant further referred to the model oral directions in the Criminal Trial Courts Bench Book issued by the Judicial Commission of New South Wales at [6-580] (“the Bench Book”).

35. In oral submissions, the applicant’s senior counsel, Mr John Stratton SC, explained that the applicant’s complaint was that in relation to the partial defence, no explanation was given by the judge “about the meaning of the balance of probabilities”. ^[1] No complaint is made about the directions on the full defence.

    1. Tcpt, 9 July 2025, p 2(38-40).

36. Mr Stratton contended that even though the judge informed the jury of the meaning of balance of probabilities in his directions on the full defence, this was insufficient as the defences were different. Mr Stratton argued that “to a lay person the expression, on the balance of probabilities, is completely obscure”. ^[2] Mr Stratton submitted that the directions in Porter should be given in every case.

    2. Tcpt, 9 July 2025, p 5(40-43).

37. Mr Stratton said that the applicant was seeking to invoke the third limb of s 6(1) of the Criminal Appeal Act.

The Crown’s submissions

38. The Crown referred to the explanation of the balance of probabilities in MFI 7, and to the oral directions on the standards of proof provided by the judge to the jury and to the closing addresses of the Crown and the applicant’s trial counsel. The Crown pointed out that the applicant’s trial counsel neither required that in summing up the directions in Porter be applied nor sought any further directions.

39. The Crown argued that the directions given in the applicant’s trial in relation to the standard of proof for the defences were adequate and no miscarriage of justice arose.

Consideration

40. The applicant’s complaint of error is confined to the judge not explaining to the jury the meaning of “balance of probabilities” in the context of the partial defence. The applicant accepts that the judge told the jury that the burden of proof that the applicant bore on the partial defence was on the balance of probabilities; that the term “balance of probabilities” was explained as meaning “more likely than not” in the context of the full defence and it was made clear that the balance of probabilities was a lesser standard than the onus resting on the Crown to establish the elements of each of the offences beyond reasonable doubt.

41. The applicant’s submission is that in respect of the partial defence, the judge bore the responsibility of instructing relevantly the jury in the terms of the direction in Porter at 184 (Dixon J):

“He has not got to remove all doubt from your minds. He, or rather his counsel, has merely to make it appear to you as more probable on the whole that that was the state of his mind at the time he did the things charged, than otherwise.”

42. The applicant further referred to the oral directions in the Bench Book where the partial defence is raised which includes (at [6-580]):

“The standard of proof on the accused is on the balance of probabilities. This means that if, at the end of your deliberations, you are of the view that it is more likely than not that what the accused claims in respect of this defence is so, then [he/she] has succeeded.”

43. I make the following observations about the applicant’s reliance on Porter and the Bench Book:

1. A judge’s summing up on the matters of law does not depend on whether the judge has used a particular formula of words. It is the effect of the summing up that matters: R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 at [75] (Spigelman CJ, McClellan CJ at CL and Hall J agreeing).

2. Even where a direction in the form of Porter is requested, that does not mean that the omission to give such a direction amounts to an improper failure to direct: R v Matheis (1958) 58 SR (NSW) 321 at 322 (Owen J, Street CJ and Herron J agreeing). In the present trial, neither the Crown nor the applicant’s trial counsel requested that a direction in the form of Porter be given in respect of the partial defence or the full defence.

3. The Bench Book’s suggested oral direction for the partial defence appears to be standalone. It does not anticipate that other oral directions have been given on the full defence. The summing up must be read as a whole: Mizzi v The Queen (1960) 105 CLR 659 at 664 (Dixon CJ, McTiernan, Fullagar, Menzies, and Windeyer JJ); [1960] HCA 77 (“Mizzi”); Green v The Queen (1971) 126 CLR 28 at 34 (Barwick CJ, McTiernan and Owen JJ); [1971] HCA 55.

4. What is required when the full defence or partial defence (or both) are raised, is to make the jury aware of the “great distinction between very different burdens of proof resting upon the Crown and … upon the defence”: Mizzi at 664.

5. An analysis of the jury’s understanding of the different burdens of proof is not confined to the summing up but may include the oral and written directions given by the judge during the trial and the addresses of counsel on this issue.

6. There are dangers of over-elaboration: Mizzi at 664. Unnecessary repetition may have an adverse impact on the jury’s concentration and understanding. Where that point lies depends on the circumstances of the trial.

7. The lack of objection by counsel to the summing up or of a request for further directions is “a basis for concluding that, in the context of the atmosphere at it existed at the trial, and in the contemporary awareness of the manner in which the summing-up was spoken, there was not apparent at the time of the trial any reasonable ground for concern regarding the adequacy and fairness of the summing-up”: R v Aziz [1982] 2 NSWLR 322 at 331 (Nagle CJ at CL) (“Aziz”), quoting R v Haeney (Court of Criminal Appeal (NSW), 13 June 1978, unrep) at 1-2 (Street CJ, O’Brien and Ash JJ agreeing) (“Haeney”); R v Abusafiah (1991) 24 NSWLR 531 at 544 (Hunt J, Gleeson CJ and Mahoney JA agreeing); (1991) 56 A Crim R 424; R v Grattan [2005] NSWCCA 306 at [160] (McClellan AJA, Simpson and Rothman JJ) (“Grattan”); Chang v R [2016] NSWCCA 296 at [52] (Macfarlan JA, Johnson and Schmidt JJ agreeing). In these circumstances, this Court will be hesitant “in entertaining grounds of appeal challenging the form, content or balance of a summing-up”: Haeney at 1-2; Aziz at 331. In the present trial, no objections were taken at trial nor were further directions requested.

What did the Crown say about the balance of probabilities

44. In her closing address, the Crown told the jury on three occasions that the full defence must be proved by the applicant on “the balance of probabilities or more likely than not”. Whilst this was in the context of the full defence, the Crown said: ^[3]

“It’s the Crown’s submission that you would not be satisfied of this partial defence for the same reasons as you would not be satisfied of the complete defence.”

3. Tcpt, 10 October 2022, p 527(44-46).

What did the applicant’s trial counsel say about the balance of probabilities

45. Early on in his closing address the applicant’s trial counsel said “[t]here are two keys that we say are important that I’d like you to take note of, and they are, Dr Edwards, and secondly, the standard of proof”. ^[4]

    4. Tcpt, 11 October 2022, p 565(12-14).

46. The applicant’s trial counsel put to the jury that the applicant could not control himself and that was the “obvious difficulty” the Crown had in proving its case beyond a reasonable doubt. ^[5] Trial counsel emphasised that beyond reasonable doubt was “the highest standard known in the law” and said: ^[6]

“… in relation to [the applicant] showing that he is mentally ill, or has a mental impairment, or a cognitive impairment, and this is under [the MHCIFPA], he has to prove that on the balance of probabilities, that is, that it was more likely than not, you might think, more probable than not, that he was mentally unwell, to the stage of being basically insane.” (emphasis added)

5. Tcpt, 11 October 2022, p 566(8-9).

6. Tcpt, 11 October 2022, p 566(13-18).

47. The applicant’s trial counsel told the jury that the “onus shifts to [the applicant], but he only has to prove it on the balance of probabilities”. Trial counsel said:

“Now, you might ask, what does that mean? Well, to give you an example, members of the jury, if you sue somebody for a debt, they owe you money. You go to Court, and the evidence is heard by a judge. He determines that, that is, whether the money is owed or not, on the balance of probabilities, whether it’s more likely than not that that money is owed from one person to another. That’s where we’re going in terms of the balance of probabilities. It’s completely different to beyond reasonable doubt, which is, as one would expect, when they’re dealing with criminal charges, the highest standard of proof that we know.” (emphasis added)

48. The applicant’s trial counsel reminded the jury on further occasions of the standard of proof and that “the balance of probabilities, the civil standard, and, with respect, not nearly a high standard as the ‘beyond reasonable doubt’ standard”. ^[7] Trial counsel put to the jury the standard of proof that was required of the applicant had “been reached” and he would be found “not guilty by these mental health defences”. ^[8] Trial counsel then went on to the partial defence. He said: ^[9]

“And what I say in relation to if you reject my submissions on that and we come to the question of substantial impairment, he obviously had a substantial impairment and with respect, members of the jury, so much so that he didn’t know whether his actions were right or wrong. He certainly wasn’t able to control himself and he was substantially impaired. So in relation to that part of the case I say he was substantially impaired and you would find him so.”

7. Tcpt, 11 October 2022, p 578(34-35).

8. Tcpt, 11 October 2022, p 579(6-9).

9. Tcpt, 11 October 2022, p 579(11-16).

What did the judge tell the jury about the balance of probabilities

The relevant law concerning a medical condition (MFI 7)

49. Before the evidence of the psychiatrists and neuropsychologists was called in the trial, the judge discussed with counsel in the absence of the jury, a written aide his Honour intended to provide to the members of the jury to assist them with understanding the law relevant to the full defence and to the partial defence. Neither counsel had any objection to the aide, copies of which were provided to the jury when the jury returned to the courtroom. The aide “[t]he relevant law concerning a mental condition” referred to both defences. Under the heading of the full defence (MFI 7, p 4) the following appears:

“(2)    The question of whether [the applicant] had a mental health impairment or a cognitive impairment, or both, that had that effect of either 1(a) or 1(b) is to be determined by you on the balance of probabilities, that is, whether it is more likely than not that he had one or both mental conditions that had that effect.” (emphasis added)

50. In the preceding paragraph of MFI 7, his Honour had set out the terms of ss 28(1)(a) and (b) of the MHCIFPA (see [11] above).

51. Under the heading of the partial defence (MFI 7, p 5), the terms of ss 23A(1) and (3) of the Crimes Act were set out and the following appears that is a recitation of s 23A(4) (see [14] above):

“(3)   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.”

52. At the time MFI 7 was provided to the jury, his Honour explained that it was relevant to the evidence of “the mental state of [the applicant] at the time of these alleged offences”. ^[10] The judge referred to the two defences and took the jury through MFI 7 (p 4), during which his Honour said: ^[11]

“The first offence in time that you would consider is the defence of mental health impairment or cognitive impairment and that defence is as follows:

1.    A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence - and you may think that the act as it’s emerged so far in the evidence is the discharging of firearms - 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, and there’s some qualification about what that means; 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.

…

The question of whether [the applicant] had a mental health impairment or a cognitive impairment or both that had that effect of either 1(a) or 1(b) is to be determined by you on what lawyers call the balance of probabilities. That is, whether it’s more likely than not that he had one or both of those mental conditions that had that effect, that effect being 1(a) or 1(b).

Unless and until you are so satisfied, it is presumed that [the applicant] did not have a mental health impairment or cognitive impairment or both that had that effect. So it’s for [the applicant] to satisfy you that it’s more likely than not that he had 1(a) or 1(b) and you wouldn’t have got to this point unless you were already satisfied that he had a mental health impairment or a cognitive impairment or both.” (emphasis added)

10. Tcpt, 4 October 2022, p 279(26-29).

11. Tcpt, 4 October 2022, pp 282(30)-283(11).

53. The judge told the jury that if they were not satisfied the defence had been made out, they would go to the next page of MFI 7 (p 5), which related only to the charge of murder; the partial defence of substantial impairment which reduced murder to manslaughter. His Honour said: ^[12]

“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.”

12. Tcpt, 4 October 2022, p 283(42-44).

The summing up

54. On 11 October 2022, the judge commenced the summing up to the jury. His Honour reminded the jury that they must be satisfied of the guilt of the applicant beyond reasonable doubt and gave the standard directions that those words have their everyday meaning, there was a presumption of innocence and the onus was on the Crown to prove otherwise. His Honour said: ^[13]

“There is no burden of proof whatsoever on [the applicant] to prove anything at all in terms of that primary matter of the charge that [the applicant] faces. There is a burden of proof in relation to the two defences that you heard about in this trial, the defence of mental health impairment and cognitive impairment and the partial defence of substantial impairment. There is an evidentiary onus on the defence on the balance of probabilities to make out those defences and I will come to them in more detail later.” (emphasis added)

13. Tcpt, 11 October 2022, p 18.

55. On the next day, the judge provided copies of a “step by step road map” to the jury which became MFI 12. His Honour had provided the draft of that document to counsel and had agreed on the previous day to the applicant’s trial counsel’s request to reiterate substantial impairment in the document. The discussion with counsel took place in the absence of the jury.

56. In the judge’s oral directions, his Honour took the jury through each of the steps set out in MFI 12. His Honour read out under the subheading (2) which explained that if the jury was satisfied on the balance of probabilities that one of the full defences had been established, the jury’s verdict is “[a]ct proven but not criminally responsible”. In relation to the balance of probabilities his Honour said: ^[14]

“So keep in mind that this standard of proof is quite different from the standard that operates on the Crown of beyond reasonable doubt. This standard of proof that the defence must satisfy, if you are to return the verdict of act proven by not criminally responsible, is a lesser standard. It is more probable than not that the defence is made out.

So assuming that you are not satisfied, on the balance of probabilities, that the defence of mental health impairment or cognitive impairment is made out, you then move to consider the third element, under count 1, for murder.” (emphasis added)

14. Tcpt, 12 October 2022, pp 33-34.

57. After explaining the further elements of Count 1, the judge dealt with the partial defence. His Honour said: ^[15]

“… then go to subheading (5), which is subtitled, ‘The partial defence of substantial impairment.’ Now, already, you have the essence of that partial defence set out in MFI 7, but to assist you, I have broken it down to a sequence of steps which appears on page 3 of MFI 12.

So, the first step is are you satisfied on the balance of probabilities that, at the time of the offence, [the applicant] had a mental health impairment, or a cognitive impairment, or both? And again, those definitions are set out in MFI 7, and by the time you get to this point, you would have already considered that in the context of the defence of mental health impairment, or cognitive impairment, so that is a question that, either way, you will be able to readily answer, if you get to the subheading of partial defence of substantial impairment.

If you are not so satisfied, on the balance of probabilities that [the applicant] had one of those two impairments, then your verdict for count 1 is guilty, and that is the end of count 1. If you are so satisfied that he had one or both of those two impairments, you go on to the next element of that partial defence …” (emphasis added)

15. Tcpt, 12 October 2022, pp 38-39.

58. After explaining the meaning of the words “substantial” and “implied”, his Honour said: ^[16]

“If you are not satisfied on the balance of probabilities that [the applicant’s] capacity in respect of at least one of those three matters was substantially impaired by one of those two types of impairments, or both, then your verdict on count 1 is guilty. If you are so satisfied on the balance of probabilities, you then proceed to the next step in that partial defence.” (emphasis added)

16. Tcpt, 12 October 2022, p 40.

59. His Honour then instructed the jury about the next element which was, “(c) [w]as the impairment so substantial as to warrant his liability for murder being reduced to manslaughter?”. Before completing his directions on Count 1 and the partial defence, his Honour said: ^[17]

“The question you should ask yourself is has [the applicant] satisfied you in the circumstances of this case that any impairment to his capacity, if you find that is likely to have existed, was such that he should not be condemned or blamed as a murderer and that, rather, he should be treated as having been guilty of manslaughter. In answering that question, you should approach the matter in a broad common sense way, applying, as I have said, the standards of the community which you are here to represent.” (emphasis added)

17. Tcpt, 12 October 2022, p 42.

60. The judge then turned to Counts 2 to 7, addressing the elements of those offences and referring to the directions that had been given in respect of Count 1. His Honour drew the jury’s attention to the full defence which was set out on page 4 of MFI 7. Paragraph (2) referred to the balance of probabilities “that is, whether it is more likely than not that he had one or both mental conditions that had that effect”. His Honour said: ^[18]

“The relevance of (2) and (3) is to make the point that you have to be satisfied on the balance of probabilities that the defence is made out, if it is to be made out, and that the starting point is that he did not have a mental health impairment or cognitive impairment or both. So the question is whether you are persuaded by the evidence that it is more likely than not, that he had one of those impairments and whether it is more likely than not, that if he had one or both of those impairments, it had one of those two effects that was set out in subheadings (1)(a) or (1)(b).” (emphasis added)

18. Tcpt, 12 October 2022, p 64.

Conclusion

61. My analysis of [40]-[60] above leads me to conclude that the jury would have been thoroughly aware that the explanation of the balance of probabilities as meaning “more likely than not” or “more probable than not” applied to the partial defence as well as the full defence. There is no reasonable possibility that the jury would not have appreciated that the explanation applied to both defences.

62. I am fortified in my conclusion given that counsel did not seek further directions nor did the judge receive a note from the jury on this issue. Accordingly, the applicant has not demonstrated that the contended failure by the judge to explain the meaning of “balance of probabilities” in the context of the partial defence gave rise to a miscarriage of justice: Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872.

63. Ground 1 has not been established.

Ground 2: [the judge] did not adequately summarise the defence case to the jury

The applicant’s submissions

64. The applicant accepted that leave was required to argue this ground. The applicant submitted that the judge’s summary of the defence closing address covered the equivalent of less than a page of transcript. The applicant referred to his Honour’s failure to explain in his summary that “proof on the balance of probabilities meant that the applicant had proved the elements of the full defence was more likely than not, and that was a lesser standard than proof beyond reasonable doubt although these were important features of [the applicant’s trial counsel’s closing address]”. ^[19]

    19. Applicant’s written submissions at par 97.

65. A further submission was that there was a risk of causing confusion as the judge referred to proof beyond reasonable doubt in his summary of the defence closing address which included the following passage:

“The defence says that he was so mentally unwell, which is proved, that without a doubt that - that supports the evidence of Dr Furst that he is so unwell that he could not control himself and he certainly could not work out what was right or wrong.”

66. The applicant submitted that the passage quoted above did reflect something said by his trial counsel, which was that “the defence says … that he was so mentally unwell, and he’s proved that without a doubt …”, but the applicant pointed out that was said in the context of having said the applicant had to prove his defence on the balance of probabilities.

67. Another submission was that in the judge’s summary of the applicant’s case, his Honour did not refer to the standard of proof required for the partial defence at all.

68. In oral submissions, Mr Stratton argued that the judge should have reminded the jury of the applicant’s trial counsel’s argument that for the applicant “to suddenly act in this on any view bizarre way after living with the community and at a time when he was owning guns for a period of 12 years with apparently no incident, supported the contention that there was a mental illness”. ^[20] Mr Stratton further contended that the judge did not refer to the argument put by the applicant’s trial counsel that the evidence of Dr Eagle should be rejected, because Dr Eagle said that the applicant’s drug use was the cause of his behaviour and it was submitted to the jury there was evidence that the applicant had given up using drugs and there was a possibility that the psychosis had been triggered by the applicant’s withdrawal from drugs.

    20. Tcpt, 9 July 2025, p 12(46-49).

The Crown’s submissions

69. The Crown submitted that when the summing up is read as a whole and in the context of the trial, the summing up was not unbalanced and did not give rise to a miscarriage of justice. The Crown contended that the proper issue was not the length of time devoted to the respective case but the fairness, balance and impartiality of the summing up as a whole citing Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71 at [127] (Bellew J, Bell CJ and Ierace J agreeing) (“Haile”).

70. The Crown argued there was no failure to put essential or important matters referred to by the applicant that could arise to a miscarriage of justice.

Consideration

71. The applicant’s complaint about the judge’s failure to explain the meaning of the balance of probabilities has no merit as does the complaint about the passage quoted at [65] above. His Honour was repeating the rhetorical flourish in the applicant’s trial counsel’s closing address and there is no reasonable possibility that there would have been confusion on the part of the jury.

72. In Odisho v R [2018] NSWCCA 19; (2018) 271 A Crim R 325, Bellew J succinctly summarised the principles that apply to a summing up at [97]-[104] (Price J agreeing):

“[97]   Firstly, and fundamentally, a trial judge is required to put the defence case fairly. Failure to do so will constitute a miscarriage of justice.

[98]   Secondly, the weaker the defence, the more essential it is for that defence to be put to the jury so that it can be considered it in light of the Crown case, and evaluated as part of the overall determination of whether or not the Crown has discharged its onus of proof.

[99]   Thirdly, how a trial judge structures a summing-up, and the extent to which he or she reminds the jury of the evidence, are matters for individual judgment. That judgment is to be exercised according to a number of factors, including the complexity of the issues, the length of the trial and the conduct of the respective cases by the parties.

[100]   Fourthly, whilst it is the function of an appellate court to review and safeguard the fairness, balance and impartiality of a summing-up, that exercise is not conducted by reference to the length of time which was devoted to the Crown case on the one hand, or the defence case on the other.

[101]   Fifthly, just as the question of whether a party’s position has been adequately put to the jury is not measured by the length of time devoted to that position or the number of words spoken, it is similarly not measured by direct comparison with the attention given by the trial judge to the case brought by the opposing party. This is particularly the case in criminal proceedings because the Crown case will, generally speaking, constitute the vast majority (and sometimes the whole) of the evidence, such that more often than not, more time will need to be spent on summarising it.

[102]   Sixthly, when one case is strong and the other case is weak, it does not follow that a balanced summing will be achieved by under-weighting in the strong case, and over-weighting in the weak case. A balanced account will inevitably reflect the strength of the one, and the weakness of the other.

[103]   Seventhly, the law does not mandate that a trial judge ‘compartmentalise’ the summing-up by separately identifying and summarising the defence case. On occasions, the most effective way for the trial judge to fairly put the defence case to the jury is in the course of summarising the issues for their determination.

[104]   Finally, the ultimate question is whether the trial judge has put the case for the accused in such a way as to allow the jury to properly consider the issues raised on the accused’s behalf. It follows that in determining whether a complaint that a summing-up was unbalanced is made out, it is necessary to view the summing-up as a whole, and not in a piecemeal way. The ultimate question is whether the trial judge put the case for the appellant in such a way as to allow the jury to properly consider the issues raised on his behalf.” (footnotes omitted)

73. The issue is not the length of the time devoted to the applicant’s case, “but the fairness, balance and impartiality of the summing up as a whole”: Haile at [127].

74. As has already been mentioned at [45] above, the two key issues which the applicant’s trial counsel brought to the jury’s attention in his closing address was the evidence of Dr Edwards and the standard of proof. His Honour referred to the trial counsel’s submissions concerning the evidence of Dr Edwards in his summary of the defence case and to the submissions concerning the evidence of Dr Furst and Dr Pulman.

75. Earlier in the summing up, the judge had provided a detailed summary to the jury of the evidence of Dr McSwiggan, Dr Pulman, Dr Edwards, Dr Eagle and Dr Furst. His Honour made clear Dr Furst’s disagreement with Dr Eagle’s opinion that the applicant did not have a mood disorder at the relevant time. Of significance to Mr Stratton’s complaint concerning the trial counsel’s argument that Dr Eagle’s evidence about the applicant’s drug use should be rejected, his Honour recommenced his directions on 13 October 2022 with the following: ^[21]

“You will recall that yesterday I read to you some passages from the evidence of Dr Furst and in one of those passages, Dr Furst said that his opinion was that [the applicant] was suffering from basically a mental disorder, a mental illness and that it was triggered, most likely, by the withdrawal from amphetamines and from cannabis. I direct you, as a matter of law, that a mental disorder that is triggered by ceasing the use of drugs is not excluded by part (3) of the definition of a mental health impairment, at page 2 of MFI 7.” (emphasis added)

21. Tcpt, 13 October 2022, p 95.

76. After reminding the jury of the definition of a mental health impairment in MFI 7, his Honour went on to say: ^[22]

“So to the extent you might be confused by Dr Furst’s evidence that [the applicant], in his opinion, had a mental disorder, that he had had for some time and that it was triggered by him stopping using ice and cannabis, either all together or dramatically reduced it, the fact that it was triggered, if you accept his evidence, by him stopping using those drugs, that does not exclude that mental disorder from coming within the definition of a mental health impairment.” (emphasis added)

22. Tcpt, 13 October 2022, p 96.

77. As to Mr Stratton’s complaint that the judge did not remind the jury of the applicant acting in a bizarre way, his Honour commenced his summary of the defence case by stating: ^[23]

“Coming to the defence, [the applicant’s trial counsel] submitted to you that the only logical conclusion you could come to as to why [the applicant] engaged in such bizarre behaviour as to start shooting on 17 March 2020 is that he was mentally and cognitively impaired.” (emphasis added)

23. Tcpt, 13 October 2022, p 106.

78. When the summing up is considered as a whole, all of the issues raised on the applicant’s behalf were put before the jury in such a way as to allow the jury to properly consider those issues. The summing up was fair, balanced and impartial.

78. Accordingly, Ground 2 has not been established.

79. The applicant’s appeal against his convictions has been unsuccessful. Before turning to the appeal against sentence, it is convenient to summarise some of the findings made by the judge in the SJ.

Some findings by the judge

81. The judge was satisfied that the applicant had a cognitive impairment as defined in s 4 of the MHCIFPA consequent to his brain injury. His Honour found that there was a nexus between the cognitive impairment and the applicant’s decision to resort to shooting at his neighbours and those around him during the incident.

82. Conformably with the jury’s verdicts, the judge noted that the applicant’s impairment at that time did not bring him within s 28(1)(b) of the MHCIFPA. His Honour found that in respect of each count, the applicant knew that the act was wrong.

83. In relation to Count 1, the judge noted that the jury had found that the partial defence was not made out. His Honour said to the extent that the finding of cognitive impairment mitigates his sentence, he found “that it is on the basis that his ability to control himself was not substantially affected by his cognitive impairment”: SJ[127].

84. The judge found that all of the offences, which involved the discharging of firearms across a public street with multiple persons present were committed without regard to public safety and involved a grave risk of death to other persons: ss 21A(2)(i)-(ib) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”). Counts 1, 4, 5, 6 and 7 were committed in the presence of a child: s 21A(2)(ea) of the CSP Act. His Honour said that a relevant consideration in the determination of the objective seriousness of each offence was (SJ[129]):

“A relevant consideration in the determination of objective seriousness of each offence is the circumstance of intended, sustained terror in which it was committed. [The applicant] used the 6.5mm rifle to shoot into [the House] and other locations for the express reason that it was a more powerful and accurate weapon than his .22 rifle. In relation to the first three offences, the terror felt by those who were trapped in [the House], as well as those who rescued them, was extreme. As noted, the occupants were evacuated by police at about 6:45pm through a back window. Until then, for about 45 minutes, the eight adults, three young people aged 17 and the two infants were subjected to the horror of the rifle discharges smashing through the front wall, windows and against the door, in some instances penetrating internal walls. Four of the occupants were injured while inside the house during the attack, one fatally. A composite video was tendered in the trial that incorporated smartphone video and body worn video by police that captured the sound of the shooting as well as images of persons taking cover. It conveyed something of that horror. Some witnesses who gave evidence, including police witnesses, were clearly traumatised by relating and thus reliving that experience. A consequence of the sustained nature of the attack was that the injured victims were unable to obtain immediate medical attention and their escape or rescue was delayed.”

85. When assessing the objective seriousness of Count 1 the judge referred to the applicant’s videoed interview where the applicant said his intention in shooting into the House was to kill Stewart: SJ[130]. The applicant believed Stewart was somewhere inside the House and was aware that others were present there as well.

86. When the deceased was shot, the lounge room windows were covered by a curtain and a blind and the front door was closed. The judge referred to Stewart’s evidence that there was only a “small gap” through which visibility from within the lounge room to the front of the House was possible: SJ[130]. His Honour was satisfied that the applicant could not have seen the deceased inside the lounge room. His Honour found that the applicant did not specifically target the deceased.

87. The judge found the applicant intended to kill Stewart by firing repeatedly into the House, although he could not see a specific person and the fatal round was discharged with that intention. His Honour said it was irrelevant that the person the applicant killed was not the person he intended to kill.

88. His Honour found the level of objective seriousness for the murder was “well above the mid-range of objective seriousness”: SJ[131].

89. As to Count 2 in relation to the discharge of a firearm with intent to cause grievous bodily harm to Pamela Dickinson, the judge was satisfied beyond reasonable doubt that the applicant targeted Ms Dickinson and Carol as they ran on the verandah to the front door, at least with the intention of causing them really serious physical injury: SJ[132]. His Honour said the bullet that ultimately caused Ms Dickinson’s injuries may have first hit something else, causing it to fragment. His Honour concluded that the two overlying puncture wounds observed on Ms Dickinson’s back were made either by a bullet or pieces of bullet shrapnel from a round that had initially hit something else and fragmented. The injury although traumatic, was not life threatening.

90. His Honour noted that an aggravating feature was that Ms Dickinson was shot as she entered her own home: s 21A(2)(eb) of the CSP Act. His Honour assessed the objective seriousness of the offence to be “slightly above mid-range, taking into account the circumstances that I have referred to”: SJ[133].

91. As to Count 3 being the discharge of a firearm with intent to cause grievous bodily harm to Albert Tonks, the judge was satisfied beyond reasonable doubt that the applicant specifically targeted Mr Tonks as he stood up, having taken cover behind Cindy’s car, at least with the intention of causing him a really serious injury: SJ[134]. His Honour said that the bullet hit something else, likely a part of the car, and a fragment ricocheted, grazing his skin but not entering his body. The fragment hit Mr Tonks with sufficient force as to fracture his collarbone. His Honour assessed the objective seriousness of the offence to be “slightly above mid-range, for the same reasons”: SJ[135].

92. When considering the applicant’s moral culpability, the judge said that the applicant “was motivated by retributive rage for perceived and unfounded wrongs which he believed some of his neighbours had perpetrated against him and which, even if true, were trivial in nature”: SJ[130]. His Honour found the applicant intended to cause significant suffering to those who were subjected to the attack, relevantly, the victims of the specific offences.

93. The judge found that the applicant’s cognitive impairment was relevant to an assessment of his moral culpability for each of the offences: SJ[140]. His Honour said that it was also relevant to the application of general deterrence and retribution citing Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53]-[54] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). His Honour found that in the context of the applicant’s long-standing desire to commit these offences and the length of time over which they were committed, particularly Counts 4 to 7, his cognitive impairment did not reduce the need for specific deterrence.

94. The judge noted that the applicant had been convicted of common assault when he was aged 21 and 22 years old and an assault occasioning actual bodily harm when aged 28. The applicant was also convicted of behaving in an offensive manner when aged 20 and stalking when aged 26. His Honour noted that the applicant had not previously been sentenced to imprisonment: SJ[141].

95. The judge referred in some detail to the applicant’s background: SJ[142]-[147]. His Honour noted that according to the history obtained by Dr Pulman, the applicant had a disturbed and troubled childhood, that included a violent father, sexual abuse when he was a young child by the son of one of his father’s girlfriends and a disrupted childhood. The applicant had been to so many different primary schools he could not recall how many. When in primary school he was diagnosed with attention deficit hyperactivity disorder (“ADHD”) and was prescribed dexamphetamine.

96. The judge noted that when aged 9, the applicant was placed in his grandparent’s care, who were Jehovah’s Witnesses and very strict. The applicant absconded when aged 14 and was subsequently held in juvenile detention where he was again sexually assaulted. His Honour said that the applicant completed an apprenticeship with TAFE and at the time of the head injury was working as a baker. His Honour had observed at SJ[106] that the applicant’s medical records demonstrated he had suffered a brain injury in the course of an assault in 2000.

97. The judge recounted the additional details taken by Dr Eagle from the applicant which included his parents separating when he was 6 years old and his mother leaving the country with his sister when he was about 9. His Honour noted Dr Eagle’s opinion that this was an important point in the applicant’s life as he was abandoned by his mother at a young age. His Honour noted that the applicant told Dr Eagle that his father burnt him with a cigarette lighter and that he hit him with an ironing cord when he was a young child: SJ[145]. His Honour further referred to the applicant’s written submissions saying he had a child with his partner and had adopted a child of his partner’s. However, after 10 years, his partner left him because of his aggressive behaviour.

98. His Honour also noted the letter from one of the applicant’s daughters which referred to the protective and caring relationship she enjoyed with him.

99. The judge took into account the applicant’s exposure to violence of and by his father, his history of child abuse and general neglect as relevant features of the applicant’s background for sentencing purposes pursuant to the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [43] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (“Bugmy”). His Honour said the manner in which it was relevant in the circumstances of this case was not exclusively mitigatory citing Bugmy 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.”

100. The judge found that the applicant had not accepted responsibility for the offences and had little insight into their effect on the victims and their families: SJ[151]. His Honour found that the applicant’s degree of remorse was qualified and his prospects of rehabilitation were uncertain: SJ[151]-[152]. His Honour said it was difficult to predict whether, or to what extent, he may evolve in his understanding of the offences. The applicant had little insight. Positive indicators were his minor criminal history and his past attempted rehabilitation for his brain injury.

101. The judge disregarded the effects of the methylamphetamine and cannabis for the purpose of the sentencing exercise: s 21A(5AA) of the CSP Act.

102. The judge applied a modest reduction in the sentences pursuant to s 22A of the CSP Act for the applicant’s facilitation of the administration of justice by being a party to agreed facts which reduced the amount of evidence adduced by the Crown.

103. When finding special circumstances, the judge said (SJ[156]):

“I find special circumstances are made out on the basis of [the applicant’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.”

104. His Honour provided the following indicative sentences (SJ[161]-[162]):

1. Count 1: 34 years imprisonment with a NPP of 24 years;

2. Counts 2 and 3: 14 years imprisonment with a NPP of 10 years;

3. Counts 4 to 7: for each count, 9 years imprisonment with a NPP of 6 years and 6 months; and

4. Section 166 Certificate: 2 years for each offence.

105. The judge imposed an aggregate term of imprisonment of 42 years with a NPP of 30 years (see [3] above).

Ground 3A: [the judge] erred in finding that the murder charge (Count one) was well above the mid-range of objective seriousness; and

Ground 3B: [the judge] erred in finding that the counts of discharging a firearm with intent to inflict grievous bodily harm (Counts 2 and 3) were slightly above the mid-range of objective seriousness

106. These grounds of appeal can be conveniently dealt with together.

The applicant’s submissions

107. The applicant referred to the judge’s finding that the applicant could not have seen the deceased inside the lounge room and did not specifically target him. However, the applicant intended to kill Stewart by firing repeatedly into the House. As a result, his Honour found that the objective seriousness of the offence was well above the mid-range of objective seriousness.

108. The applicant argued that it was not open to the judge to make such a finding and referred to two cases which were submitted to be similar as they involved an offender being sentenced for murder involving a death caused by shooting, where there was at least one other very serious offence of violence and where the offender was convicted after trial: R v Filippou [2011] NSWSC 1607 (“Filippou”); R v Abdallah (No 7) [2014] NSWSC 829 (“Abdallah (No 7)”).

109. As to Counts 2 and 3, the applicant referred to his Honour’s findings that the puncture wounds to the victims were caused by a round that had initially hit something else and fragmented. In each case, the injuries were traumatic, but not life threatening.

110. In oral submissions, Mr Stratton conceded that the surrounding circumstances “were … very relevant” but argued “the fact that the injuries were very limited … was not given sufficient weight”. ^[24]

     24. Tcpt, 9 July 2025, p 17(5-10).

111. Mr Stratton relied upon the observation of Howie J (with whom McClellan CJ at CL and Simpson J agreed) in McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439 at [37] (“McCullough”). Mr Stratton also referred to the authorities of Chandler v R [2022] NSWCCA 124 (“Chandler”) and R v Tuala [2015] NSWCCA 8; (2015) 248 A Crim R 502 (“Tuala”).

112. It was submitted that the judge was in error in finding that the objective seriousness of Counts 2 and 3 were slightly above the mid-range of objective seriousness and in determining indicative sentences for these counts of a head sentence of 14 years and a NPP of 10 years.

The Crown’s submissions

113. The Crown submitted that the judge did not err in his assessment of objective seriousness for Counts 1, 2 and 3. The Crown contended that the applicant had not identified any error on the principles stated in House v The King (1936) 55 CLR 499; [1936] HCA 40 (“House v The King”).

114. The Crown submitted that there were three factors that aggravated the commission of the offences which warranted material weight. There was a comprehensive absence of any regard for public safety; a very grave risk of death to the persons in the houses targeted by the applicant; and very young children were present which was known to the applicant.

115. Furthermore, the Crown contended that it was relevant to the objective seriousness of the offences that the circumstances created by the applicant were of intended, sustained terror over 45 minutes until the victims were rescued. The Crown argued that the applicant’s resolve to inflict terror and harm was evident in his deliberate decision to use the 6.5mm calibre rifle because it was more powerful and accurate than the .22 calibre rifle. The Crown referred to the significant number of people in the premises and in the neighbouring houses. The Crown further referred to the deceased’s family members witnessing him dying and injured victims being unable to obtain immediate medical assistance because the offending was drawn out.

Consideration

116. It has long been held that the assessment of the objective seriousness of an offence is quintessentially for the sentencing judge; that there is a need for appellate caution and restraint in this Court substituting its own view of the objective seriousness for that of the sentencing judge and the question to be asked is whether the assessment of objective seriousness was open to the sentencing judge: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ), [46] (Simpson J) (“Mulato”); R v White [2025] NSWCCA 111 at [66]-[69] (Bell CJ, Payne JA and N Adams J agreeing) and the authorities there cited. The applicant must establish House v The King error: Mulato at [46].

117. In assessing the objective seriousness of each of the offences, the judge properly took into account the aggravating factors and circumstances identified at [84] above.

118. His Honour’s assessment of the objective seriousness of the murder included the applicant firing repeatedly into the House with the intention of killing Stewart. As the judge observed at SJ[49], the police investigation of the House revealed at least 14 bullet impact holes in the front wall. At least 11 bullets had impacted the front door or the part of the wall in front of or above the lounge room. Three bullets 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 had pierced through the front of the House into the lounge room, a bedroom, the wall between that bedroom and a second bedroom, and then the rear wall of the House.

119. The extent of the damage demonstrates the applicant’s determination to kill Stewart even though he was aware others were in the House. His Honour correctly observed citing Royall v The Queen (1991) 172 CLR 378 at 393 (Mason CJ); [1991] HCA 27, that it was irrelevant the person the applicant killed was not the person he intended to kill.

120. The applicant did not identify any specific House v The King error but placed some reliance on Filippou and Abdallah (No 7). In Filippou, Mathews AJ at [24] categorised both murders as falling within the mid-range of objective seriousness. In Abdallah (No 7), Campbell J at [108]-[112] assessed the murder to be objectively serious and the degree of moral culpability to be high.

121. The limited utility of seeking to compare other cases is well known. What is required is an examination of the whole of the circumstances that give rise to the sentence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304] (Simpson J); Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (“Hili”). Neither Filippou nor Abdallah (No 7) demonstrate that it was not open to his Honour to assess the objective seriousness of Count 1 to be well above mid-range.

122. The circumstances of the commission of the murder are very different to Filippou, which involved the offender shooting one of the victims through the neck and the other through the left side of the chest. One of the victims was shot a second time in the chest. Furthermore, they are different to Abdallah (No 7), where Campbell J found at [78] that the offender fired six shots at the victim all of which struck the target. In the present case, the applicant’s intention to kill was carried out by shooting across the street into the House many times for about 45 minutes during which the deceased suffered a gunshot wound to his chest and abdomen by a bullet that had been discharged by the applicant’s 6.5mm rifle. There was much time for the applicant to seriously reflect on what he was doing and to stop shooting. However, he continued motivated by his rage for perceived and unfounded trivial wrongs.

116. The applicant’s criticism of the judge’s assessment of the objective seriousness of Counts 2 and 3 focused on what were referred to as the “very limited” injuries suffered by Ms Dickinson and Mr Tonks. ^[25] Reliance was placed upon what was said by Howie J in McCullough at [37]:

“Malicious wounding is principally a result offence. Generally speaking the seriousness of the offence will significantly depend upon the seriousness of the wounding. That is not to say that the manner in which the wound was inflicted, the reason for the infliction of the wound and the circumstances surrounding the wounding are irrelevant. The same can be said for an offence involving the infliction of grievous bodily harm: the more serious the harm inflicted the more serious the offence …”

25. Tcpt, 9 July 2025, p 17(9-10).

124. The applicant also referred to the finding of objective seriousness of being slightly below the mid-range in Chandler at [7] (Bell CJ, Button and N Adams JJ agreeing), where the offender shot the victim in the right lower leg just below the knee joint. The offence was aggravated at the time by the offence being committed in company. Further reference was made to Tuala which was a Crown appeal against the offender’s overall sentence of 5 years and 7 months with an NPP of 4 years and 10 months. The offender shot the victim in the arm and legs when demanding that the victim repay a debt. For each of the shooting offences, he was sentenced to 5 years imprisonment with an NPP of 4 years and 3 months. The Crown appeal was dismissed. It is unclear what finding was made by the sentencing judge of the objective seriousness of the shooting offences.

125. As Howie J in McCullough makes clear the circumstances surrounding the wounding are not irrelevant. The objective seriousness of the offence is not determined solely by a consideration of the injuries: Vragovic v R [2007] NSWCCA 46 at [32] (Adams J, Howie and Price JJ agreeing); Testalamuta v R [2007] NSWCCA 258 at [31]-[33] (Hidden J, McClellan CJ at CL and Rothman J agreeing).

126. I am not prepared to accept Mr Stratton’s description of the injuries each victim suffered as being “very limited”. There were two overlying puncture wounds to the lower thoracic area of Ms Dickinson’s back. The fragments of the bullet were considered to be too small to be safely removed. In her victim impact statement, Ms Dickinson described how traumatised she is and that she leaves home only for necessities. The knowledge that shrapnel remains in her body continues to be a source of her anxiety. Mr Tonks sustained a wound to the lateral aspect of the right shoulder with a collarbone fracture when the projectile struck that region.

127. The circumstances of Counts 2 and 3 are very different to Chandler and Tuala. In both counts, the applicant’s offending was seriously aggravated by the disregard for public safety, the grave risk of death to other persons, the number of shots that were fired across the street and the length of time the shooting continued. Ms Dickinson and Carol were targeted by the applicant as they ran on the verandah to the front door. Another aggravating feature of Count 2 was that Ms Dickinson was wounded as she entered her own home.

128. Mr Tonks was specifically targeted when he stood up, having taken cover behind Cindy’s car. Cindy’s vehicle had 17 areas of bullet impact damage. Other vehicles parked on the same side of the road as Cindy’s vehicle suffered multiple bullet impact damage. The circumstances surrounding the wounding of each victim were plainly terrifying and the seriousness of the applicant’s offending was of a high order.

129. I am not persuaded that the judge erred in his assessment of the objective seriousness of Counts 1, 2 and 3. Accordingly, Grounds 3A and 3B are not established.

Ground 4: [the judge] erred in not giving effect to his Honour’s finding that there were special circumstances justifying a variation from the statutory ratio between the non-parole period and the parole period of the aggregate sentence

The applicant’s submissions

130. The applicant referred to the judge’s finding of special circumstances and the NPP being 71.4% of the aggregate head sentence: s 44(2B) of the CSP Act. The applicant pointed out the aggregate NPP was only 1 year and 6 months less than had the statutory ratio been applied.

131. The applicant submitted that given the judge’s finding (at SJ[156]) that the applicant needed a “lengthy period of parole to ensure that his rehabilitation and readjustment to living in the community”, a variation of the statutory ratio by 3.6% producing an additional period of supervision of 1 year and 6 months, did not give any meaningful effect to his Honour’s finding of special circumstances.

The Crown’s submissions

132. The Crown submitted that the degree of adjustment to the statutory ratio was a matter of discretion upon which the non-parole period must appropriately reflect the criminality involved in the offending: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [63] (Spigelman CJ). The Crown further submitted that the relatively minor adjustment was properly within the judge’s discretion in the circumstances of the case. Furthermore, the Crown contended the focus of the inquiry should not be solely on the percentage proportions that the non-parole and parole periods bear to the total term but to the actual period involved. The Crown pointed out that the adjustment of a 1 year and 6 months was in addition to the substantial period of time during which the applicant would be on parole.

Consideration

133. The relevant principles applicable where a ground is raised contending an error in the manner in which a sentencing judge’s finding of special circumstances is applied are well known and have been restated in a number of decisions of this Court: See, eg, Caristo v R [2011] NSWCCA 7 at [26]-[31] (R A Hulme J, Giles JA and Adams J agreeing) (“Caristo”); MD v R [2015] NSWCCA 37 at [38]-[43] (Gleeson JA, Johnson and Hall JJ agreeing) (“MD”); Crane v R [2024] NSWCCA 87; (2024) 107 MVR 272 at [92]-[99] (Yehia J, Stern JA and Rothman J agreeing). A finding of special circumstances is discretionary and this Court will be slow to intervene: Caristo at [28]; MD at [40].

134. The applicant’s complaint that the additional period of 1 year and 6 months did not give meaningful effect to the finding of special circumstances has no merit.

135. The modest reduction in the statutory ratio was accompanied by reasons and was specifically intended: CM v R [2013] NSWCCA 341 at [39]-[40] (R A Hulme J, Ward JA and Harrison J agreeing). As is evident from the passage of the SJ[156] quoted at [103] above, his Honour took into account the lengthy period the applicant would be on parole if no adjustment was made to the statutory ratio and intentionally allowed an additional period on parole which his Honour acknowledged was “relatively minor”. The degree of adjustment was well within his Honour’s sentencing discretion.

136. Ground 4 has not been established.

Ground 3: the sentence imposed upon the applicant was manifestly excessive: (3) the indicative sentences for Counts 1, 2 and 3 were manifestly excessive; and (4) [the judge] gave insufficient weight to the subjective factors

The applicant’s submissions

137. The applicant’s submissions were intertwined with his complaint of error in the assessment of objective seriousness which has been dealt with under Grounds 3A and 3B (see [106]-[136] above). Whilst accepting that the indicative sentences are not amenable to appeal, the applicant submitted that an erroneous approach to indicative sentences may be a guide as to whether the aggregate sentence was erroneous. The applicant argued that the indicative sentence imposed for Count 1 was manifestly excessive. The applicant further submitted that the indicative sentences for Counts 2 and 3 were erroneous.

138. The applicant contended that his strong subjective case did not appear to have been given much weight by the judge. The applicant referred to his Honour’s citation of Bugmy at [44] and submitted this was in the context of a discussion of the principles in Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 (“Veen (No 2)”), where there was evidence of an offender’s continuing danger to society. The applicant submitted that in his case there was no evidence of a prior history of serious violence or of continuing dangerousness.

139. As to his prior criminal record, the applicant complained that the judge did not refer to the absence of any prior convictions for 12 years before the offending which was a very significant feature of his criminal record. Furthermore, his Honour should have taken into account, the absence of a history of serious violence and his efforts to seek treatment for his psychological problems in assessing the need for specific deterrence.

140. The applicant referred to the judge’s finding that his prospects of rehabilitation were uncertain which was based on his little insight for his offending. The applicant argued that at no stage did he dispute that he had shot the victims.

141. In relation to Counts 2 and 3, the applicant referred to his Honour’s findings of objective seriousness and the SNPP being 9 years. The applicant submitted that given that in each case the indicative sentence was 14 years with an NPP of 10 years, his strong subjective case was at best a negligible feature.

The Crown’s submissions

142. The Crown argued that the judge carefully weighed the subjective features of the applicant’s case. The Crown submitted that his Honour’s reference to Bugmy at [44] was appropriate and also referred to Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) (“Munda”).

143. As to specific deterrence the Crown contended that the judge placed appropriate weight upon the applicant’s long-standing desire to commit the offences and the length of time over which they were committed. The Crown argued the fact that the applicant did not dispute he had shot the victims did not necessarily reflect insight or responsibility as it may have reflected the strong Crown case on the physical elements of the offences.

144. The Crown submitted that this Court should be circumspect about the applicant’s assertion that his subjective case was “strong” and had to be assessed against the findings by the judge and the evidence before his Honour.

145. The Crown submitted that the indicative sentences were not excessive.

Consideration

146. This Court has often stated that to succeed on a ground where a complaint of manifest excess is made the applicant must establish that the sentence was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J); Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (“Markarian”); See, eg, Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J, Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing); Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ). Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [46] (McHugh, Hayne and Callinan JJ); Markarian at [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). Sentencing judges are required to reach a sentence for an offence by balancing many different and conflicting features: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [75]-[76] (Gaudron, Gummow and Hayne JJ) (“Wong”); Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [34] (French CJ, Hayne, Kiefel and Bell JJ). It follows that sentencing judges are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and applicable sentencing principles: Markarian at [27]. Appellate intervention is not justified simply because the sentence imposed in the court below is markedly different from sentences imposed in other cases: Wong at [58] (Gaudron, Gummow and Hayne JJ); Hili at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Nor is it to the point that this Court might have exercised the sentencing discretion differently: Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336 at [168] (N Adams J). Recently, in TH v R [2025] NSWCCA 121, Bell CJ observed at [5] (by reference to what his Honour had said in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42]):

“As noted in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [42(iv)], an applicant seeking to challenge a sentence on the ground of manifest excess has a ‘very heavy practical burden’, and must show a kind of disproportion which is so ‘manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law’ …”

147. The applicant was critical of the judge’s reference to Bugmy at [44] (see [99] above), and submitted that it was not apt as there was no prior history of serious violence or evidence of continuing dangerousness. There are a number of matters that may be said about this submission. His Honour’s quotation of Bugmy at [44] did not include the whole of that paragraph. The whole passage reads:

“Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. 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.” (footnote omitted)

148. The High Court’s discussion in Bugmy at [44] was a statement of principle and was not confined by Veen (No 2). Furthermore, the necessity to balance an offender’s difficult circumstances against the seriousness of the offending was affirmed by the High Court in Munda at [57]:

“The circumstance that the appellant has been affected by an environment in which the abuse of alcohol is common must be taken into account in assessing his personal moral culpability, but that consideration must be balanced with the seriousness of the appellant’s offending. It is also important to say that it should not be thought that indulging in drunken bouts of domestic violence is not an example of moral culpability to a very serious degree.”

149. It is plain that the judge gave much consideration to the applicant’s subjective case. His Honour referred at SJ[98]-[123], to the expert evidence at trial as to the applicant’s mental conditions and at SJ[141]-[147], to the applicant’s background which had been provided to Dr Pulman and Dr Eagle. His Honour took into account the applicant’s cognitive impairment in assessing his moral culpability and childhood exposure to violence, his history of child sexual abuse and general neglect having regard to the principles enunciated in Bugmy. His Honour was well aware of the gap in the applicant’s prior criminal history and his offending as his Honour had recounted the applicant’s age when he was convicted for each of the prior offences.

150. The very nature of the applicant’s prolonged violent offending and the psychiatric evidence including Dr Eagle’s testimony that the applicant had “always had difficulty managing his anger”, required weight to be given to specific deterrence and the protection of the community.

151. It was well open to the judge to find that the applicant had little insight into the effect his offending had on the victims and their families. His Honour carefully considered the expert evidence, the victim impact statements and the applicant’s letter in which he referred to his children and grandchildren having “lost” him because they could only see him in prison. The evidence that he was the shooter was overwhelming. It did not necessarily follow from the fact that he did not dispute he had shot the victims he had insight for his offending.

152. In my view, the judge carefully considered the applicant’s subjective case which he balanced against the gravity of the applicant’s offending. I do not agree that the judge gave insufficient weight to the applicant’s subjective factors.

153. Whilst I have referred in some detail to the objective seriousness of Counts 1, 2 and 3, a recitation of the damage to 2A Woodward Avenue (Count 4); 9 Cutler Drive (Count 5); 30 Cutler Drive (Count 6) and 32 Cutler Drive (Count 7), reveals how serious these offences are.

154. Upon 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, a door, a fridge, through the kitchen wall to an adjourning bedroom and then through an adjoining wall to the living room. At the time of the shooting, an adult couple was inside the house with their child who was aged 3 or 4 years old.

155. Upon inspection of 9 Culter Drive, police determined that at least 12 shots had been fired into that house from the applicant’s residence. Bullet impact damage was observed to the front exterior 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 ward robe 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. At the time of the shooting, a 13 year old child was inside the house.

156. At 30 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. At the time of the shooting, there were 6 people inside, including two children aged 13 and a child aged 11.

157. At 32 Cutler Drive, police identified bullet impact holes on the carport and house. Three bullets had penetrated the house. One had entered through 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. At the time of the shooting, there were 5 people inside including three children aged 4, 12 and 15 years old. The 12 year old child was sheltering in the doorway of his parent’s bedroom when one of the bullets came through the wall. He saw a puff of gyprock dust as the bullet came through the wall and continued straight past him.

158. These are very serious examples of a very serious offence.

159. It should not be overlooked that at the time the applicant shot into the House, there were 13 people inside including infant children and 3 young people aged 17 years old.

160. The dangerously high scale of the applicant’s shooting is further demonstrated by the police collecting 226 fired cartridges from inside the applicant’s residence.

161. I am not persuaded that any of the indicative sentences are manifestly excessive. The applicant’s offending was extraordinarily serious and the applicant has not established that the aggregate sentence is manifestly excessive.

162. Gound 3 has not been established.

Orders

163. I propose the following orders:

1. Extend the time for leave to appeal against conviction and sentence.

2. Leave to appeal against conviction is granted.

1. Dismiss the appeal against conviction.

2. Leave to appeal against sentence is granted.

3. Dismiss the appeal against sentence.

164. N ADAMS J: I agree with Price AJA.

165. SWEENEY J: I agree with Price AJA.

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Endnotes

Decision last updated: 12 September 2025