Breen v R

Cases Cited: Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen [2013] NSWCCA 115; 231 A Crim R 413
Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295
Ghalbouni v R [2020] NSWCCA 21
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
LN v R [2020] NSWCCA 131
Milat v R; Klein v R [2014] NSWCCA 29
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
RO v R [2019] NSWCCA 183
Turnbull v R [2019] NSWCCA 97

Category: Principal judgment

Parties: Corey Breen (Applicant)
Rex (Respondent)

Representation: Counsel:
S Pararajasingham SC with R Thampapillai (Applicant)
S Lind (Respondent)
Solicitors:
Bannisters Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2013/96802

Publication restriction: Pursuant to s 15A(1) of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names of, or any matter which could identify any witnesses who were children at the time of the offences is prohibited.

HEADNOTE

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

The applicant sought an extension of time and leave (neither of which were opposed) to appeal against two sentences imposed on him on 25 November 2015, following pleas of guilty to two offences of murder. Both offences occurred on 29 March 2013. The victims were the applicant’s father, Paul Breen (count one), and the applicant’s father’s partner, Felicia Crawford (count two).

In sentencing the applicant for count two, the sentencing judge was to take into account nine further offences on a Form 1 (all also committed on 29 March 2013). In respect of count one, the sentencing judge imposed a sentence of 37 years with a non-parole period of 28 years, and in respect of count two, her Honour imposed a sentence of 34 years with a non-parole period of 26 years. The sentencing judge did not give any discount for the applicant’s guilty plea. The sentence for count one was ordered to commence five years after that of count two, resulting in a total effective sentence of 42 years with a non-parole period of 33 years.

The Crown accepted that it would be open to this Court to find three of the applicant’s four grounds of appeal were made out, and that it was open to this Court to find that these errors had the capacity to affect the sentencing judge’s exercise of the sentencing discretion, such that this Court should therefore proceed to resentence. In light of that concession, it was unnecessary for this Court to consider the remaining ground of appeal.

On resentence, the applicant accepted the sentencing judge’s findings of fact and her Honour’s assessment of objective seriousness. The Crown’s key contention on resentence was that no lesser sentence was warranted. The Crown also contended that no discount should be given for the applicant’s guilty plea, that the applicant’s moral culpability was high, and that the Form 1 offences warranted a greater sentence for count two than otherwise would have been imposed.

The Court (Stern JA, N Adams J and Chen J agreeing) held, granting an extension of time and leave to appeal, allowing the appeal, quashing the sentences imposed by the sentencing judge and resentencing the applicant to an aggregate sentence of imprisonment of 42 years with a non-parole period of 31 years and 6 months:

(i) The offences were not carried out pursuant to a deliberately-formed plan of action that had been hatched well in advance, however, there was something of a trajectory which culminated in the offending, and an element of planning and deliberate action involved in the applicant’s actions: [92]-[93] (Stern JA); [104] (N Adams J); [105] (Chen J).

(ii) Two statutory aggravating factors were applicable, namely that the offences were committed in the presence of children under the age of 18, and in the victims’ home: [94] (Stern JA); [104] (N Adams J); [105] (Chen J).

(iii) The nine Form 1 offences showed that materially greater weight had to be given when sentencing the applicant for count two, due to the need for general deterrence and the community’s entitlement to exact retribution. Those offences were themselves serious, with the maximum penalties totalling 147 years’ imprisonment: [95] (Stern JA); [104] (N Adams J); [105] (Chen J).

Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen [2013] NSWCCA 115; 231 A Crim R 413, referred to.

(iv) The Court adopted the sentencing judge’s findings as to the applicant’s remorse and prospects of rehabilitation, though noted that during the applicant’s time in prison he has continued to have outbursts and use language, or have thoughts, of harming people, standing against the conclusion that his prospects of rehabilitation have improved since he was sentenced: [97]-[98] (Stern JA); [104] (N Adams J); [105] (Chen J).

(v) The nature of the offending was such that the Court did not give a discount for the applicant’s guilty plea. This was offending of great heinousness, so offending the public interest that the full sentence should be imposed: [99] (Stern JA); [104] (N Adams J); [105] (Chen J).

R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309; Milat v R; Klein v R [2014] NSWCCA 29, referred to.

(vi) There was no reason to depart from the standard statutory non-parole period of 75%: [100] (Stern JA); [104] (N Adams J); [105] (Chen J).

(vii) In its instinctive synthesis, the Court would have imposed a slightly higher head sentence than the sentencing judge, but by analogy with the Court’s usual practice, did not do so: [101] (Stern JA); [104] (N Adams J); [105] (Chen J).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

RO v R [2019] NSWCCA 183, referred to.

JUDGMENT

1. STERN JA: The applicant seeks an extension of time and leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against two sentences imposed on him on 25 November 2015, following a plea of guilty to two offences of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW): R v Breen [2015] NSWSC 1757. Both offences occurred on 29 March 2013. The victims were the applicant’s father, Paul Breen (count one), and the applicant’s father’s partner, Felicia Crawford (count two). The applicant was born on 15 August 1986 and was aged 26 at the time of the offending.

2. In sentencing the applicant, pursuant to s 32 of the *Crimes (*Sentencing Procedure) Act 1999 (NSW) (CSPA), the Court was to take into account nine further offences on a Form 1 (all also committed on 29 March 2013) for the second of the principal offences. The sentencing judge imposed discrete sentences for each of the two offences which were partially accumulated. In respect of count one, the sentencing judge imposed a sentence of 37 years with a non-parole period of 28 years, and in respect of count two, her Honour imposed a sentence of 34 years with a non-parole period of 26 years. The sentencing judge did not give any discount for the applicant’s guilty plea. The sentence for count one was ordered to commence five years after that of count two, resulting in a total effective sentence of 42 years with a non-parole period of 33 years. The applicant will first be eligible for parole on 28 March 2046.

3. The Crown does not oppose either an extension of time or leave to appeal and I am satisfied, in the circumstances set out below, that both should be granted. The Crown also accepts that it would be open to this Court to find grounds two to four of the four grounds of appeal raised by the applicant are made out, and that it is open to this Court to find that these errors had the capacity to affect the sentencing judge’s exercise of the sentencing discretion. Thus, the Crown submits, this Court should proceed to resentence. For the reasons briefly set out below, that concession is soundly based. In these circumstances it is unnecessary to consider the applicant’s first ground of appeal. Rather, this Court should resentence the applicant afresh, consistent with the authority of Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] (French CJ, Hayne, Bell and Keane JJ).

4. The Crown’s key contention on appeal is that no lesser sentence than that imposed by the sentencing judge is warranted and that this Court should dismiss the appeal under s 6(3) of the Criminal Appeal Act. On resentence, the Crown relies upon an affidavit of Adam Wilczek sworn 13 October 2025, attaching a number of Department of Corrective Services case note reports and other documents produced by the Department of Communities and Justice.

5. For his part, the applicant relies on resentence upon an affidavit which he swore on 3 October 2025 and upon an affidavit of Serae Kopra sworn on 21 October 2025 which included a letter of 27 July 2015 from the Chaplain at the Long Bay Correctional Centre which was omitted from the Appeal Book but which was before the sentencing judge.

6. The applicant accepts that the statement of agreed facts dated 23 July 2015, and the facts on which he was sentenced, are both accurate. He also accepts that both offences are of an extremely high order of seriousness.

7. For the reasons set out below the appeal should be allowed and the applicant resentenced. I would impose the sentence set out at [101] below.

The grounds of appeal on which the Crown has made concessions

8. As I have already observed, the Crown concedes that it is open to this Court to uphold grounds two to four as advanced by the applicant.

9. In ground two, the applicant contends that the sentencing judge erred in finding, as an aggravating factor pursuant to s 21A(2)(m) of the CSPA, that the offences involved multiple victims and a series of criminal acts.

10. Under the heading “Aggravating and Mitigating Factors Under s 21A”, the sentencing judge said at [41] that “[t]he aggravating factors which apply in this case, and are not inherent in the offence of murder, are as follows: …”. The matters her Honour then identified included that (at [42]):

[P]ursuant to paragraph (2)(m), the offences involved multiple victims and a series of criminal acts. I will also be saying more about this later.

11. Consistent with the judgment of this Court in R v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145 at [28]-[29] (Howie J, Grove and Hall JJ agreeing), and as was more recently explained by Hamill J in LN v R [2020] NSWCCA 131 at [133], s 21A(2)(m) applies when the offence is constituted by a series of criminal acts, not on account of an offender being sentenced for multiple offences.

12. In ground three, the applicant contends that the sentencing judge erred in taking into account the applicant’s Children’s Court criminal history (ground 3(a)) and in finding, as an aggravating factor pursuant to s 21A(2)(d) of the CSPA, that the applicant had a record of previous convictions (ground 3(b)).

13. The applicant’s criminal history disclosed a sentence imposed in the Children’s Court for maliciously inflicting grievous bodily harm in 2002 when the applicant was 16 years old (the Children’s Court offence) and a sentence imposed in the Local Court for assault occasioning actual bodily harm in 2009 when the applicant was 23 years old. No conviction was entered for the Children’s Court offence. The sentencing judge found that both of these offences constituted an aggravating factor under s 21A(2)(d) of the CSPA. Under s 15 of the Children (Criminal Proceedings) Act 1987 (NSW), however, the Children’s Court offence should not have been admitted in evidence on sentencing in circumstances where the applicant had not been subject to any other judicially-imposed punishment within the period of 2 years prior to the commencement of proceedings for the index offence. Because ground 3(a) was conceded by the Crown, there is no need to consider ground 3(b).

14. In ground four, the applicant contends that the sentencing judge erred in taking into account the Form 1 offences on the wrong principal offence. As noted above at [2], the list of additional charges under s 32 of the CSPA on the Form 1 signed by the Office of the Director of Public Prosecutions specified nine offences to be taken into account in sentencing the applicant for the offence at count two on the indictment, being the murder of Ms Crawford. However, in her remarks on sentence at [91] and [96] the sentencing judge made it clear that it was the sentence for the murder of Paul Breen that was increased by reason of the Form 1 offences. It is well-established that this is an error: Ghalbouni v R [2020] NSWCCA 21 at [48] (Hidden AJ, Macfarlan JA and Davies J agreeing), as the effect given to a Form 1 matter might vary depending on the nature of the principal offence.

15. As is clear, the Crown’s concessions are well-founded and this Court should resentence the applicant. For this purpose, given that they are not impugned, the sentencing judge’s findings of fact and her assessments of objective gravity and remorse can be adopted: Turnbull v R [2019] NSWCCA 97 at [44] (Simpson AJA, Ierace J agreeing, Wilson J not deciding). The applicant submitted that this Court may also adopt the sentencing judge’s assessment that he has very reasonable prospects of rehabilitation, particularly if he can abstain from alcohol and drugs on release, and that the Court should, against that background, place significance on the further evidence tendered on resentence.

Resentence

Background to the offending

16. The applicant’s parents separated in around 1994. In 2001 Paul Breen had a child, DB, with Ms Crawford. Ms Crawford also had a second child, RC, born in 2005 (during a period of separation from Paul Breen) to a different father. Paul Breen and Ms Crawford were living together, with DB and RC, at the time of the index offences.

17. In July 2009, the applicant was working as a security guard in Terrigal and, whilst at work, assaulted a man (the July 2009 assault). He was convicted of assault occasioning actual bodily harm. As a result of this he lost his security licence and suffered financial hardship. At around this time he made threats to kill various members of his family, including his paternal grandfather and his sister.

18. On 11 August 2009, the applicant wrote a letter to his mother which included the following:

This is a true account of the mind of Corey Alan Breen … It[’]s gone on to[o] long to remain unsaid … I’m the kinda guy you love to be around. I’m happy, fun and would do anything for my friends. But this changes when I’m alone. I get very angry and plot out murders of people I hate. I do it all in my head. I run over it again and again, refining every detail. They are always extremely horrific and extremely brutal … I’m scared someday soon the monster that I’ve kept locked away for so long will finally reach the surface. This can’t happen. Everything will change. People will die and people will suffer … I’m not stupid though. They are evil. I know this but I don’t care … I do know these violent fantasy’s [sic] are wrong but that’s not why I haven’t committed them. The honest answer is this. Because at the moment nothing has pushed me quite that far yet. But I do feel it is close …

(Emphasis in original.)

19. The applicant’s mother then encouraged him to get some psychological help.

20. In June 2010 the applicant met Cassandra Fenech, with whom he commenced a relationship soon after. During his relationship with Ms Fenech the applicant frequently told her that he would kill his father and stepmother. The applicant sometimes threatened to smash his father with a baseball bat or shoot or stab him to death. He became estranged from all members of his family and told Ms Fenech that he blamed his father for everything that had gone wrong in his life.

21. For some time prior to 2011 the applicant was living with Paul Breen and Ms Crawford, and frequently threatened to shoot them or “blow them away”. These threats were common knowledge to the targets of the threats and within his family.

22. In February 2012, the applicant was angry at Ms Fenech’s mother and took his baseball bat and got into his car and drove away. Ms Fenech rang the applicant continually and was eventually able to speak to him, when he said to her (before hanging up):

This is it Cassie. I’m done. I can’t live like this anymore. I’ve got to do what I’ve got to do.

23. Ms Fenech then drove the applicant to Wyong Hospital where he was assessed. No acute mental health issues, psychosis or depression were diagnosed, but a long history of problems relating to his temper or violent outbursts was recorded, which the applicant related to dysfunction in his upbringing. The applicant’s unresolved feelings of hate towards his parents were also recorded. Upon discharge the applicant told Ms Fenech that he could not tell the medical staff what he was thinking and that if he told them everything he would not be allowed to live with Ms Fenech and her children. In March and April 2012 he was diagnosed as suffering from depression and anger management issues.

24. On a number of other occasions, following disagreements with Ms Fenech, the applicant would arm himself and drive away. Ms Fenech feared that the applicant would kill his father or other family members so she would call him and calm him down.

25. In around August 2012 the applicant sent a text message to his mother as follows, with the understanding of his family being that the reference to “[P]aul” was to Paul Breen:

Please tell [P]aul that if he tries to contact me again [I] will murder his whole fucking family. Having said that [I] just want to be left alone till [I] decide w[h]at comes next.

26. On 14 February 2013, the applicant sent a text message to Ms Fenech which included the following:

I can feel a massive fucking skitz out coming soon and I don[’]t know if I will be able to stop myself this time. I hate our life now we can[’]t do anything or go anywhere and it[’]s depressing me so much …

29 March 2013

27. Some of the conduct set out below was charged and was to be treated as a series of related offences under s 166(1)(b) of the Criminal Procedure Act 1986 (NSW) (CPA) (the related offences). To the applicant’s benefit, the sentencing judge, at [94], erroneously dismissed these as back-up offences under s 167 of the CPA. Whilst below I indicate the conduct that constituted the various related offences, I have not taken these into account on resentencing.

28. On 29 March 2013, the applicant and Ms Fenech had a number of friends over to their home in Gorokan where most people, including the applicant and Ms Fenech, were drinking alcohol. At around 6 pm, the applicant and Ms Fenech had a disagreement, and Ms Fenech asked the applicant to come into their bedroom. When Ms Fenech tried to then walk out of the room, the applicant held her shoulders and threw her onto the bed, then laid on top of her and held her wrists down and did not let her get up. This assault on Ms Fenech was one of the related offences.

29. A friend entered the room and told the applicant to stop. Ms Fenech then walked out into the front yard, where the applicant followed her and took hold of her wrists again. Ms Fenech said, “Stop it Corey, I will call for Vaughan [Nunn, a male guest present at the house], stop it”. The applicant said to her, “Do it then cunt. Do it cunt”. Ms Fenech then yelled out for Mr Nunn while the applicant held her harder. Mr Nunn came to the door and the applicant let go of Ms Fenech and walked away. At the time the applicant was armed with a large hunting knife with a blade length of 19 cm and 4.7 cm wide at the base.

30. Later during the party, the applicant rang Ms Fenech’s mother and said, “Come and get your daughter before I stab her”.

31. The applicant did not hold a firearms licence but had obtained an unregistered .22 calibre “Sportco” brand rifle which he had been keeping disassembled in an unlocked plastic case at the premises. He assembled the gun. This conduct constitutes two of the related offences, possessing an unauthorised firearm without being licensed and possessing an unregistered firearm.

32. The applicant then walked to his car and subsequently returned inside, realising he did not have any ammunition. While the applicant was inside, Ms Fenech removed two spark plug leads from the vehicle and one of the women present at the house took the rifle from the applicant and hid it. Ms Fenech then walked into the kitchen, where the applicant took hold of the back of her hair and forced her over the kitchen sink. Ms Fenech said, “I’m done. You’ve done this for the last time”. The applicant said to Ms Fenech, “You’re done… Your mum’s gone”.

33. The applicant left the house on foot carrying the knife. He approached an unattended parked vehicle and struck the driver’s side window with the back of his knife, twice, leaving marks in the glass, though the window did not smash. This was another of the related offences, intentionally or recklessly damaging property.

34. The applicant wanted to obtain a motor vehicle so that he could drive to the homes of his family members to murder them. Just after 7 pm, he was walking on the roadway, holding the knife, when Gabriala Virgona, who was in her car driving alone on the same road, saw that he was walking on her side of the road in front of her. Ms Virgona drove up behind the applicant and stopped a few metres from him. The applicant then turned around and ran at Ms Virgona, holding the knife up over his shoulder. This conduct constitutes the first of the Form 1 offences, assault with intent to steal a vehicle whilst armed with a hunting knife: Crimes Act, s 154C(2), which are to be taken into account when sentencing the applicant for count two.

35. Ms Virgona then reversed at speed to get away from the applicant. As she continued to reverse, she collided with another car driven by Keith Bowden who was driving home from the Coles Select service station he worked at. Mr Bowden stopped his vehicle. He then saw the applicant with a knife and began to drive forward but was not able to speed up quickly enough. The applicant ran up to Mr Bowden and stabbed the right side of his face through the open car door window. This caused a significant facial laceration. Mr Bowden thought he had been punched and kept driving but soon felt blood flowing down his neck onto his shirt and realised he was beginning to lose consciousness. Mr Bowden then turned around and drove back to the Coles Select service station where he worked. He ultimately had to be taken to John Hunter Hospital where he had to be urgently intubated in theatre to relieve his compromised airway. This conduct constitutes the second of the Form 1 offences, namely assault of Mr Bowden with intent to rob him while armed with a hunting knife and wounding him: Crimes Act, s 98.

36. Police were called to the Coles Select service station and took a report and started to search for the applicant.

37. The applicant took a bicycle from an unknown location and rode to the Lucky 7 convenience store in Gorokan, arriving at around 7:10 pm, hoping to obtain a motor vehicle. Mr Nunn, Ms Fenech and another female guest drove to look for the applicant so that Ms Fenech could calm him down. They found the applicant at the Lucky 7.

38. Peter Romanos was sitting outside the Lucky 7. The applicant stopped outside the door, breathing heavily. Mr Romanos said to the applicant, “Been on a bit of a mission mate?”. The applicant pulled the knife from behind his back and lunged at Mr Romanos’ stomach. Mr Romanos stepped backwards to avoid being stabbed. The applicant then again lunged at Mr Romanos with the knife towards his thigh. The knife cut through Mr Romanos’ shorts, creating a 10 cm-long cut, but did not touch his skin. The applicant then ran into the store, yelling at Mr Romanos, “Give me your keys”. This conduct constitutes the third Form 1 offence, namely assault of Mr Romanos with intent to rob him while armed with a hunting knife: Crimes Act, s 97(1).

39. There were four other customers inside the store including a pregnant woman. Ms Fenech then entered the store yelling, “Stop”. The applicant hit Ms Fenech in her right forearm, causing her to fall against a brick wall near the front entrance. This conduct constitutes another of the related offences, a second common assault of Ms Fenech.

40. Nicole Duncan, who lived nearby and came into Lucky 7 to see what the noise was about, saw the applicant throwing Ms Fenech against the wall. Ms Duncan said to the applicant, “Is that necessary?”. The applicant said to her, “Who are you and what do you want? Fucking slut”. Ms Duncan walked to exit the store, when the applicant punched her head behind her ear, causing her to stumble forwards, to which she said, “What was that for?”. The applicant then said, “Do you want [a] fucking piece of me? Do you, ya slut?”. He then held the knife above his head and swung it at her, which she avoided and ran away. Ms Duncan’s young daughter, who was standing on her front lawn, witnessed this and screamed to her mother to run. Ms Duncan sustained a lump to the head and headaches for several days. This conduct constitutes a further related offence, assault occasioning actual bodily harm.

41. The applicant then chased Mr Romanos, yelling, “Give me your fucking keys. Give me your fucking keys”. Mr Romanos said he did not have any keys and was pushing large shelves of food stock towards the applicant to try to stop him, while also calling out for someone to call the police. The applicant was also pushing shelves over, trying to get to Mr Romanos. Ms Fenech was still calling out to the applicant to tell him to stop, but her friend came and took her away.

42. After running around the store for a time, Mr Romanos exited through the staff door and held it shut as it did not have a locking mechanism. The applicant tried to open it and said, “Open the door”. He was yelling, screaming and banging on the door and stabbed it a number of times, while yelling out, “You fat weak cunt”. He also caused other damage to the store including stabbing an electrical box and breaking the lever off the slushie machine, causing around $2,000.00 of damage. This conduct constitutes another of the related offences, intentionally or recklessly damaging property.

43. At 7:20 pm the applicant sent Ms Fenech’s mother a text message saying, “Ur dead u filthy cunt”. A short time later, Ms Fenech’s mother received a call from Ms Fenech, who by now was with police. Ms Fenech told her mother not to go to her home in Gorokan. Ms Fenech’s mother instead went to a nearby McDonald’s restaurant and waited until it was safe for her to return home.

44. The applicant then rode the bicycle he had obtained earlier, turned into another street in Gorokan, and started banging on the front door of a house. Alicia Lyons was home alone and stood at the front door, calling out, “Who is it?”. The applicant said, “It’s the Red Cross”. Ms Lyons said she was not interested, and the applicant said, “Don’t you care if someone bleeds to death?”. Ms Lyons immediately rang her husband, asking him to come home, as well as her brother-in-law, Ben Greenland, who lived in a nearby street, and asked him to come over, too. Ms Lyons walked into the hallway so that she could not be seen through any of the house windows and waited there. Mr Greenland drove to Ms Lyons’ home and noticed the bicycle lying in the gutter nearby. He got out of his car and began to walk down the driveway, calling out to Ms Lyons.

45. The applicant approached within about two metres of Mr Greenland with his knife raised and pointed at Mr Greenland. Mr Greenland noticed blood on the applicant’s hand. The applicant said, “Give me your keys”. Ms Lyons was standing at her front door. Mr Greenland gave the applicant his keys and the applicant told him to get inside the house. This conduct constitutes the fourth Form 1 offence, namely robbery of keys and a motor vehicle while armed with a hunting knife: Crimes Act, s 97(1). Ms Lyons and Mr Greenland called the police. A police car that was patrolling the area trying to locate the applicant also stopped by and spoke to Ms Lyons and Mr Greenland at their house while they were still on the phone.

46. The applicant then drove Mr Greenland’s car to the home of his paternal grandparents, Colin Breen and Norma Breen, in Long Jetty. He walked into their backyard and could see both of them inside the house when suddenly the rear sensor light came on. The applicant thought that his father, Paul Breen (who lived at another address) may have arrived. The applicant went to the front of the house thinking that he would kill his father first and then his grandparents. This conduct (in relation to each of his paternal grandparents) constitutes the fifth and sixth Form 1 offences, namely possessing a hunting knife with the intent to murder Norma and Colin Breen: Crimes Act, s 33B(1)(a).

47. At about 7:45 pm the applicant approached his grandparents’ neighbours, Nathan Anderson and Bree Upton. The applicant was holding the knife handle in both of his hands, pointing outward from his chest towards Mr Anderson, who was about a metre away. The applicant said, “I am swapping your car. I have a Holden Colorado out the front”. The applicant handed Mr Anderson the car keys for Mr Greenland’s car and told Mr Anderson to hand over his keys, saying, “Nothing to do with you, my grandparents live next door, just a matter of wrong place, wrong time”. Mr Anderson asked if he could get some things out of the boot of his car and the applicant obliged. As Mr Anderson was reaching over the back seat Ms Upton saw the applicant was holding the knife in both hands, standing on his feet and rocking, and she feared he would stab Mr Anderson. Ms Upton said, “Don’t hurt him”, to which the applicant laughed under his breath and said, “I am not going to hurt him”. The applicant then got into the driver’s side of Mr Anderson’s car, a Holden Commodore, which still had the keys in the ignition, directed Ms Upton and Mr Anderson to the back of the garage and had them turn around as he drove off. This conduct constitutes the seventh Form 1 offence, namely robbing Mr Anderson of a motor vehicle while armed with a hunting knife: Crimes Act, s 97(1).

48. Mr Anderson rang police who attended within minutes. Shortly after this Colin Breen realised that it may have been the applicant who had taken his neighbour’s car. Colin and Norma Breen asked the police to check on their son, Paul Breen, cognisant of the long history of the applicant’s threats to kill him. Norma Breen tried to ring Paul Breen but nobody picked up.

49. The applicant then drove the car to the home of his friends Martyn Watts and Kirrily Shelton. He knew that Mr Watts and Ms Shelton were recreational shooters and he had previously been into a “gun room” in their home, which contained 36 firearms, including rifles and shotguns. The room had a combination lock on the door and four locked safes within it, with all the firearms registered and properly secured. The applicant wanted to take a shotgun to use it to kill his family. The applicant told Ms Shelton to open the front door, holding the knife at his waist at this point. They went to the kitchen where the applicant told her to open the safe. Ms Shelton refused, to which he said, “Just open it”. The applicant held the knife up and shook it but did not hold it in Ms Shelton’s direction. This conduct constitutes the eighth Form 1 offence, namely possessing a hunting knife with the intent to intimidate: Crimes Act, s 33B(1)(a).

50. Ms Shelton opened the gun room with a coded keypad, opening the cupboard doors and unlocking one of the safes where she thought the applicant could put the knife to store it safely. She said to the applicant, “Put it in”, to which he said, “Get me the shotgun”. The applicant held the knife above her head, resting it on the cupboard. Ms Shelton did not think he would hurt her, and said, “If you’re going to be stupid I am going to shut it then”. Ms Shelton then locked the top box in the safe, putting the keys in the safe door to lock it, when the applicant took hold of her hand, squeezing it tightly with the keys in it. Ms Shelton said, “You’re hurting me. Let go,” and threatened to call Mr Watts. The applicant said, “Go on. Call him. I didn’t realise anyone would be home. I was just going to break in”. Ms Shelton threatened to call the police to which the applicant said, “Just give me a 30 second head start. That’s all I need”. Whilst at Ms Shelton’s house the applicant: asked for Ms Shelton’s phone which she gave him; pulled Ms Shelton’s hand from the door while she was still holding the keys; held the knife above her head again while resting his hand on the wall; smashed the knife against the glass panel at the front door causing it to crack; then told her to open the door to let him out, which she did; and returned her phone and left at about 8 pm.

51. In the meantime, Ms Fenech told the police that “[the applicant] has a list of people he is going to get”, and mentioned Paul Breen as one of the people on that list.

52. The applicant drove directly to Paul Breen’s house. Paul Breen was sleeping on the lounge in front of the television. Ms Crawford was in her bedroom watching television. DB (then 12 years old) and RC (then 7 years old) were in RC’s bedroom playing. The applicant used the butt of the knife to smash through the two glass panels in the unlocked front door. It is an agreed fact that he did this for effect.

53. Paul Breen screamed, “Oh my God! Corey!”. The applicant then kicked the front door open. Hearing the commotion, DB went to the hallway of the house where he could see into the lounge room. The applicant entered the house and stabbed Paul Breen 15 times. Ms Crawford then entered the hallway and was screaming, “Corey! Corey!”. DB witnessed his father being repeatedly stabbed in the torso area and later described the noise that his father was making and the movements of his body as he was stabbed. Paul Breen received six stab wounds to the chest, with four of them entering his heart and one entering his left lung. There was also a stab wound to the right side of his forehead, penetrating the skull, and superficial incised wounds to the nose, right upper lip and left face, as well as a wound to the right shoulder and upper right lower leg and a defensive wound to his left-hand thumb and third finger. Paul Breen died immediately from his wounds and the resultant blood loss. The doctor who conducted the postmortem concluded that severe force was used to inflict these injuries.

54. DB ran out of the hallway through Ms Crawford’s bedroom into the rear yard where he tried to get RC to safety, but she would not come with him, so he ran to the neighbour’s house and told them what was happening and asked them to call police.

55. Ms Crawford told RC to run. Ms Crawford then ran out of the house into the attached garage, which had been converted into a bedroom. The applicant opened a door, finding Ms Crawford behind it, and pinned her with it. He stabbed her with severe force, twice to the left lateral posterior chest area, penetrating her left lung, twice to her back, penetrating tissue and chest muscles, once to the back of her neck causing an incised wound, once to the back of the left index finger causing an incised wound, and twice to the left side of the head.

56. RC was present at the start of the attack on her mother. At 8:03 pm, Brooke Champley, Ms Crawford’s eldest daughter, received a call from Ms Crawford’s mobile phone. It recorded RC letting out a single scream, and then it was silent with the exception of a dog barking loudly in a distressed manner for two and a half minutes. A man’s voice could be heard faintly in the background at some points. At the end there were some footsteps near the phone and the phone was then turned off.

57. After seeing the beginning of the attack on her mother, RC ran around a corner until she thought the applicant was gone. Ms Crawford staggered back to the main bedroom. She lay on her bed, unlocked her mobile phone and handed it to RC, telling her to ring 000. Blood was coming from Ms Crawford’s wounds and out of her mouth. RC tried to use the phone but there was no reception. Shortly thereafter Ms Crawford fell off the bed and died in the presence of her daughter.

58. DB and a number of neighbours were standing in front of the neighbours’ houses. They saw the applicant calmly walk to the Holden Commodore, look at them, and drive off. RC was still inside the house and thought that the applicant was also there and was going to kill her. She then ran out through the attached garage onto the street where the neighbours were.

59. DB and RC had to spend the night at Gosford Hospital.

Arrest and interview of the applicant

60. At around 8:05 pm police were driving to Paul Breen’s house when they saw the Holden Commodore stopped near an intersection. The applicant put his right arm up to cover his face. Police saw that it was covered in blood. They pursued the applicant who drove at speeds of up to 120 km/h in a 70 km/h zone and narrowly missed colliding with other vehicles. After the police pursuit, the applicant stopped the car and ran into an industrial/retail area, past a number of businesses. Police chased him for about 100 metres. He ran up an elevated footpath in front of some shops and then ran into a dead end, while still armed with the hunting knife. The police called on him to drop the knife which he did, throwing it to the ground. He then dropped to his stomach allowing police to handcuff him. Police then arrested him.

61. The applicant was talking about the murders, calling his victims “cunts” and said:

I achieved my mission.

62. The applicant was then conveyed to Wyong Police Station where he was interviewed by police. I have watched the video recording of the applicant’s interview. It is an agreed fact that the applicant’s account of what he did was given in a calm, casual and factual way. He said he surrendered easily because he did not want to be shot by the police.

63. In relation to the stabbing of Mr Bowden, the applicant said:

I’m pretty sure drove off [sic] and I stabbed him in the head … or the neck or somewhere … I don’t know but I remember stabbing someone … He was going past me slow so I took a swing at him. I don’t know whether I got him in the head or throat or in the chest or what not but yeah I definitely, I definitely had a stab at him but and I definitely connected too.

64. The applicant said to the police that he drove to Long Jetty because he was planning on murdering his grandparents, saying:

I was going to butcher them … Really don’t know what happened with that … Had my knife in my hand ready to roll.

65. He said that a security light came on and after five to ten seconds he heard a car pull up and thought it was probably his father, saying:

And I thought sweet, cool, you know, kill a couple of birds with one stone.

66. However, he said that when he went around the front, it was his grandparents’ neighbours.

67. In relation to the break-in at Ms Shelton’s house, the applicant said he was asking himself, “What am I doing scaring one of my good mates?”. He said that while the knife was by his side, he was not trying to threaten Ms Shelton with it, but that she could clearly see he had it. He said he took her phone so he could get a head start. He also said that he intended to use a firearm to shoot “Paul, Felicia and more”.

68. In relation to smashing the glass panels on his father’s door, the applicant noted that the door was not locked and also said:

I don’t really know why I smashed through the glass, ah, just probably just a scare tactic just to give him the fucken spooks before I killed the cunt.

69. In relation to the murder of Paul Breen, the applicant said:

Went over, stabbed him to death. I’m pretty sure I hit him around the torso a few times, ah, I’m pretty sure I stabbed him in the head a few times. Hopefully I did. Hopefully the cunt’s fucken dead.

70. In relation to the murder of Ms Crawford, the applicant said:

I stabbed that fucken slut to death. Ah, I got her a few times in the torso and that and hopefully I got her in the neck and the fucken head. Hopefully she’s fucken dead … stabbed the fuck out of her, I think I got her in the head a few times too so that fucken diseased cunt’s dead. I can’t fucken stand that cunt.

71. The applicant said he had “absolute pure hatred” for his father and stepmother as his father had beaten him while he was a kid and his mother, Debra Breen, would not do anything about it. He said of the July 2009 assault referred to above at [17] that his father “just wouldn’t support me [through it]”.

72. During the interview the applicant also said:

You got me right in the middle of it all, um, if the clutch didn’t burn out I was on my way up my mother’s house, she lives a fair way out. Um, I probably would have knifed her and her fucken boyfriend and my brother and my sister and whoever else was up there… But it would have went on much longer had the fucken clutch not burnt out.

73. In relation to the applicant’s mother, this constitutes the ninth Form 1 offence: possessing a hunting knife with the intent to murder Debra Breen: Crimes Act, s 33B(1)(a).

74. The applicant went on to say:

It's always sort of been like… it’s like a time bomb sitting in my head. I knew sooner or later I was going to go and fucken get my old man and the rest of the cunts. Um, and just tonight was the night.

Objective seriousness

75. The sentencing judge made a number of findings going to the objective seriousness of the offending which are not impugned by the applicant:

76. that each of the offences were committed in the presence of a child under 18 years of age: CSPA, s 21A(2)(ea): at [41];

77. that the emotional harm caused to the two children and other family members was substantial, as indicated by the victim impact statements: CSPA, s 21A(2)(g): at [41];

78. that the offences were committed in the home of both of the victims: CSPA, s 21A(2)(eb): at [42];

79. that, whilst there was an element of spontaneity, once the applicant had decided he was going to kill family members he set out in a determined way to achieve this aim, such that the offences were premeditated in the sense that they were not spontaneous actions, but the applicant’s actions that evening were not “pursuant to a deliberately formed plan of action which had been hatched well in advance”: at [52];

80. that the applicant “must have been affected by some form of drug at the time of the [police] interview: at least by the Venlaxafine [sic] which he had reportedly taken earlier that day, and possibly also by some form of illegal drug”: at [57];

81. that, in the case of both of the victims, “their last moments must have been filled with unimaginable fear and horror”, being “a highly significant matter when considering the objective seriousness of the offences”: at [63];

82. that each of the offences were not committed in isolation and were part of the one episode of criminal conduct: at [64], referring here to Adanguidi v R [2006] NSWCCA 404; 167 A Crim R 295 at [32] where this Court (Hislop J, Spigelman CJ and Sully J agreeing) said that “the three murders occurred at essentially the same time and place and were all part of the one episode of criminal conduct … In these circumstances the Court may have regard to the whole of the conduct in determining the level of culpability involved in the commission of each offence”; and

83. that the harm done to the family members is an aspect of the harm done to the community as a result of the offences and, having regard to the victim impact statements of DB, RC, Brooke Champley (Ms Crawford’s eldest daughter), Debra Breen (the applicant’s mother), Colin Breen (Paul Breen’s father), and the applicant’s sister, was very substantial, going well beyond what might be considered a “normal” consequence of murder if indeed there is such a thing: at [74]. In this regard, the sentencing judge noted in particular that the victim impact statement of DB indicates that his life has been “irretrievably damaged” by the events on the evening of the offending and that RC similarly was suffering from the effects of severe stress: at [66]. The sentencing judge found that the devastating consequences for these two children was a foreseeable consequence of the offending and was a “very significant aggravating factor”: at [67]-[68].

84. Ultimately, the sentencing judge found that the offences “are of the utmost seriousness … almost to the top of the range of objective seriousness for murder” but not so high as to require a mandatory life sentence under s 61(1) of the CSPA: at [77].

Subjective factors

77. Dr Olav Nielssen, forensic psychiatrist, was instructed by the applicant to prepare a report dated 23 July 2015 and he also gave oral evidence. Perhaps unusually, Dr Nielssen did not identify any aspect of the applicant’s upbringing or mental health as having contributed to him having perpetrated the offences. He diagnosed a substance use disorder on the basis of his history of past heavy use of drugs and alcohol but he said nothing about this contributing to the offending. Consistent with this, the applicant did not submit to this Court that there were any subjective factors reducing his moral culpability.

78. Dr Nielssen prepared his report on the basis of having seen transcripts of the applicant’s police interview on 29 March 2013, but without having watched the video of the interview. He said that the applicant’s answers to the police were “animated and uninhibited, in a way that seemed consistent with intoxication”. The sentencing judge watched the video of the applicant’s police interview and said at [56]:

The delight he expressed in having murdered the two victims is quite chilling.

79. Her Honour said that the applicant did not appear to be under the influence of alcohol during the interview, but said further at [56] that:

On the other hand, the offender’s lack of judg[e]ment and inhibitions during the interview is surprising, to say the least, from an otherwise intelligent person.

80. Her Honour found at [57] that:

In all the circumstances, I cannot escape the conclusion that the offender must have been affected by some form of drug at the time of the interview: at least by the Venlaxafine [sic] which he had reportedly taken earlier that day, and possibly also by some form of illegal drug. It is also possible that his extraordinary frankness during the interview was prompted by some form of unconscious relief that the “monster” inside him had finally emerged, so he was no longer going to have to wrestle with his internal battles.

(Emphasis in original.)

81. Her Honour also found at [77] that the trigger during the afternoon of 29 March 2013 for the events that followed was probably connected with the alcohol and drugs that he had earlier consumed, but made no finding that alcohol or drugs contributed to the offending itself.

82. As to this, Dr Nielssen’s evidence was that the applicant had told him that he believed he had had a handful of Venlafaxine tablets during the day (he was prescribed Venlafaxine as an antidepressant at the time). Dr Nielssen gave evidence in cross-examination that this may have contributed to the applicant being uninhibited during the police interview.

83. This evidence is not said to go to the applicant’s moral culpability or to the seriousness of the offending. Rather, the applicant submits it is relevant to his prospects of rehabilitation.

84. As to these prospects, Dr Nielssen’s opinion was that the applicant had good prospects for eventual rehabilitation to the community, but that the main issue to be addressed was his substance use disorder as his abuse of stimulant drugs was likely to have contributed to his unstable mood and state of mind at the time of the offending. In his oral evidence Dr Nielssen said that the applicant had “quite a scope for personal development” and “the IQ to take full advantage of anything that’s put to him”. He reiterated that the key to the applicant’s rehabilitation was his ability to deal with his use of drugs and alcohol upon release from prison. Dr Nielssen agreed that many people who indicate their intention to refrain from substance abuse do not live up to their expectations when they are released from custody. However, he said that “the long period of abstinence [in custody] seems to help maintain abstinence”.

85. Dr Yvonne Skinner, forensic psychiatrist who was instructed by the Crown, in her report dated 7 August 2015 diagnosed the applicant as suffering from both a “[s]ubstance abuse disorder” and a “[p]ersonality disorder characterised by anger, impulsivity and affective instability”. (Dr Nielssen said in his oral evidence that diagnoses such as the latter lack scientific validity and are unreliable.) Dr Skinner disagreed with Dr Nielssen that the applicant was unlikely to pose a threat to other family members on release, but agreed that the main issue to be addressed was the applicant’s substance use disorder and that, if he could maintain abstinence, the risk of reoffending was greatly reduced. She said that his “prospects for rehabilitation must be considered guarded”.

86. The sentencing judge accepted that the “deep remorse” which the applicant had expressed was genuine: at [85]-[86], and also accepted Dr Nielssen’s opinion as to the applicant’s prospects of rehabilitation: at [77].

Submissions

87. As already observed, the applicant accepts the sentencing judge’s findings of fact and assessment of objective seriousness. He contends that this Court may find that the offences involved limited planning. He further contends that his prospects of rehabilitation and the protection of the community are of particular relevance on resentence. He contends that this Court could adopt the sentencing judge’s assessment of his prospects of rehabilitation and her Honour’s finding as to his genuine deep remorse.

88. He contends that this Court may find that the index offences were an uncharacteristic aberration. He submits that the additional material that is before this Court on resentence shows that he: has availed himself of opportunities to engage in regular work in custody; has completed available programs in custody; has demonstrated a capacity to eventually become a contributing member of society; has not been involved in acts of physical violence although he has, on occasion, expressed verbal threats to staff; and that, where possible, has sought to engage with mental health professionals and has generally participated in a meaningful way. The applicant also submits that it would be open to this Court to reduce his sentences for his guilty plea, under s 22 of the CSPA, noting that the sentencing judge did not do so, and that this Court should apply the statutory ratio of 75% between the overall non-parole period and the total effective sentence.

89. The Crown’s key contention, as already noted, is that no lesser sentence is warranted. The Crown contends that no discount should be given for the applicant’s guilty plea, and relies upon R v Thomson*; R v Houlton* (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [157]-[158] where this Court (Spigelman CJ, Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) held that “[t]here are crimes that so offend the public interest that the maximum sentence, without any discount for any purpose, is appropriate”. The Crown says that the applicant’s moral culpability is high, referring to the sentencing judge’s finding that the applicant intended to kill both victims after “nursing violent fantasies for a considerable time”: at [45]. The Crown also notes that the Form 1 offences here warrant a greater sentence for count two than otherwise would have been imposed. The Crown further contends that no lesser non-parole period is warranted. The Crown also relies upon the extracts from the applicant’s custodial records, which I discuss further below at [97].

Consideration

90. Save where impugned, the applicant is to be resentenced on the basis of the agreed facts and findings of the sentencing judge which I have set out above.

91. There can be no doubt that, as the sentencing judge found at [77] and as the applicant accepts, the applicant’s offending went “almost to the top of the range of objective seriousness for murder”. The facts that I have summarised make this abundantly clear and show the horrific nature and devastating impact of his offending. As the sentencing judge observed at [63], the “scare tactic” of breaking the window in the front door of his victims’ home which the applicant said in his interview was “just to give him the fucken spooks before I killed the cunt” must have meant that the victims’ last moments “must have been filled with unimaginable horror”. The impact of the offending upon the families of the victims, and upon those who were forced to witness such horrors, including DB and RC who were children at the time, is difficult to fathom.

92. Consistent with the sentencing judge’s finding, the applicant must be sentenced on the basis that the offences were not pursuant to a deliberately-formed plan of action that had been hatched well in advance. However, there is no doubt on the evidence that the applicant, in the period between August 2009 and the evening of the offending, had thoughts and made threats of killing family members including Paul Breen and Ms Crawford, sometimes describing how he would kill his father, including by stabbing. In that sense, there was something of a trajectory which culminated in the offending.

93. There is also no doubt that there was an element of planning and deliberate action involved in the applicant arming himself and taking somewhat elaborate steps, including theft and assaults and attempts to obtain a firearm, to carry out what he described as his “mission” to kill Paul Breen and Ms Crawford. Whilst this occurred only over a relatively short period of time, this was far from a spur of the moment display of violent offending. As Dr Nielssen put it, the applicant’s behaviour was “purposeful”.

94. The aggravating factors that apply are that the offences were committed in the presence of children under the age of 18: CSPA, s 21A(2)(ea), and in the victims’ home: CSPA, s 21A(2)(eb).

95. As to the nine Form 1 offences, which are to be taken into account when sentencing the applicant on count two, these show that materially greater weight should be given when sentencing the applicant for that count, due to the need for general deterrence and the community’s entitlement to exact retribution: Abbas v The Queen; Bodiotis v The Queen; Taleb v The Queen; Amoun v The Queen [2013] NSWCCA 115; 231 A Crim R 413 at [23] (Bathurst CJ). As is clear from what I have already set out, those offences were themselves serious, including multiple assaults, one of which involved the stabbing of Mr Bowden in the face. Mr Bowden required emergency surgery on account of his injuries. The maximum penalty for the offence pertaining to him was 25 years’ imprisonment: s 98 of the Crimes Act. Of the remaining eight offences on the Form 1, three offences had maximum penalties of 20 years’ imprisonment: s 97(1) of the Crimes Act, four offences had maximum penalties of 12 years’ imprisonment: s 33B(1)(a) of the Crimes Act, and one offence had a maximum penalty of fourteen years’ imprisonment: s 154C(2) of the Crimes Act. Thus, the maximum penalties of the Form 1 offences totalled 147 years imprisonment. Moreover, one of the Form 1 offences arises from the applicant’s expressed intention to “knife[]” his mother, and his explanation that this would have occurred if the clutch had not burned out after he left Paul Breen’s house.

96. All of the matters set out above make this a case in which this Court must impose a sentence that vindicates the dignity of the victims, the community’s consideration of the offending, and provides protection to the vulnerable against the repetition of violence: Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).

97. Given the position taken by both the applicant and the Crown on this appeal, I adopt the sentencing judge’s findings as to the applicant’s genuine deep remorse (noting that it was a generous finding on the evidence before her Honour) and that he had very reasonable prospects of rehabilitation, particularly if he can abstain from drugs and alcohol on release. The events disclosed by the applicant’s affidavit of 3 October 2025 show that he has participated appropriately in both employment and therapeutic initiatives during his time in prison. These are all positive developments. The case notes attached to Mr Wilczek’s affidavit sworn 13 October 2025 also attest to this. They do also, however, disclose that the applicant has continued to have outbursts and to use the language, or have thoughts, of harming people. In particular, and without detracting from other positive comments in the case notes about the applicant during his incarceration:

98. On 4 April 2017 a psychology case note recorded him saying that he was “still able to identify when a blackout rage was likely to happen” albeit that he said that he would inform staff when he felt he was required to be locked in his cell.

99. On 21 July 2017 he was recorded to be aggressive and abusive.

100. On 20 March 2019 it was recorded that he became angry and disrespectful to a staff member.

101. On 24 May 2021 a psychology case note recorded him saying that he reported elevated stress levels, increased frustration and that minor things were resulting in displays of anger including kicking a door. He also disclosed some fleeting thoughts of harming others but no intent to act on those thoughts. It was noted that whilst he was presenting as elevated, his tolerance for negative emotion was reduced. On the same day another case note recorded that he was agitated and had had altercations with staff in the Café in the previous weeks.

102. Later in 2021 there were a number of reports of the applicant speaking aggressively to correctional staff, and becoming irate, and on 11 October 2021 his attitude and behaviour was said to have changed and to be worrying.

103. On 8 July 2022 an incident was recorded where the applicant was yelling and becoming abusive towards a staff member, and on 3 August 2022 he was noted to be “particularly elevated”. That day he was recorded as saying to another inmate, “what do I have to do start stabbing cunts to be left alone?”. The next day he was recorded as saying, of his medication, that “[i]t was like putting a band aid on a shark bite”.

104. On 12 January 2023 it was said in a psychology case note that there was a chronic risk of harm to others which “may be easily triggered”. The most significant trigger whilst in custody was said to be “negative interaction with staff, exacerbated by distrust of staff in general”. In a further psychology case note dated the following day, some “paranoid like thoughts” were noted.

105. On 3 February 2023 in a psychology case note it was noted that he “appear[ed] to have made some indirect comments around harm to staff recently”. He was also recorded as saying, after a negative interaction, that “it doesn’t feel good that he didn’t physically harm the staff yesterday”.

106. On 22 February 2023, when the applicant was asking to be moved from a remand prison, he was reported as saying that he felt that he was “almost at exploding point and [was] primed to ‘go off’”.

107. On 4 October 2023 the applicant was reported to have said, “I’m getting my one out back if I don’t you will need to bring a body bag”. He was reported to have made a similar comment on 29 March 2024, to which he added, “I’ll knock them and the officer that brings him. I’m doing 32 years I don’t give a fuck”.

108. On 30 September 2024 the applicant was reported as saying that if a painting of his that had been taken down was “not found asap [he was] going to kick off”.

109. None of these incidents involved any physical violence to anyone, and they also have to be considered in the context of the positive aspects of the steps the applicant has taken during his incarceration. They do, however, stand against the conclusion that his prospects of rehabilitation should be assessed as having improved when compared with the sentencing judge’s assessment. This is particularly so given the verbal threats and thoughts of harming people that were described over the period from August 2009 up until the index offences.

110. Also, consistent with the principles set out above, the nature of the offending is such that I would not give a discount for the applicant’s guilty plea as the community interest in retribution, punishment, community protection and deterrence can be met only by imposition of a penalty with no allowance for, or a reduction of, that discount: CSPA, s 22(1A). This was offending of great heinousness, so offending the public interest that the full sentence should be imposed without any discount for the applicant’s plea: Thomson at [158] (Spigelman CJ); Milat v R; Klein v R [2014] NSWCCA 29 at [69]-[92] (RA Hulme J, Bathurst CJ and Hall J agreeing).

111. For my part, I see no reason to depart from the standard statutory non-parole period of 75% of the sentence: CSPA, s 44(2).

112. In my instinctive synthesis, I would have imposed a sentence slightly higher than the sentencing judge. However, by analogy with the Court’s usual practice as explained by N Adams J in RO v R [2019] NSWCCA 183 at [119]-[123], I would not impose a greater sentence. Under s 53A of the CSPA I would impose an aggregate sentence of 42 years, with a non-parole period of 31 years and 6 months. Whilst this is no lesser head sentence than that imposed by the sentencing judge, it is overall a lesser sentence (for the purposes of s 6(3) of the Criminal Appeal Act) by reason of my imposition of the statutory ratio. The indicative sentences that I would have imposed are:

113. 35 years with a non-parole period of 26 years and 3 months for count one; and

114. 37 years with a non-parole period of 27 years and 9 months for count two.

115. The sentence commences on 29 March 2013. The non-parole period expires on 28 September 2044. The sentence expires on 28 March 2055.

Conclusion

103. The orders I propose are:

104. An extension of time and leave to appeal is granted.

105. The appeal is allowed.

106. The sentences imposed by Mathews AJ on 25 November 2015 are quashed. In lieu thereof the applicant is sentenced to an aggregate sentence of imprisonment of 42 years to commence on 29 March 2013 and to expire on 28 March 2055 with a non-parole period of 31 years and 6 months to commence on 29 March 2013 and to expire on 28 September 2044.

107. N ADAMS J: I agree with Stern JA.

108. CHEN J: I agree with Stern JA.

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