The Offence
2Mr Riley supplied Mr Thompson with illegal drugs (amphetamines) on a regular basis and Mr Thompson consumed amphetamines and sold amphetamines at least to the extent necessary to support his addiction.
3Some time prior to 14 December 2009, Mr Thompson planned to rob Mr Riley. On 14 December 2009, Mr Riley left work early because he had tonsillitis. He attended a medical practice and was diagnosed. The medical practice was in Charlestown. He returned home, contacted his mother and then his girlfriend. After these two mobile phone calls he attended a pharmacy at Cardiff. He attended the pharmacy at or about 5.38pm on 14 December 2009. Mr Riley then returned some DVDs that he had borrowed and returned home. He was never seen alive again.
4Mr Thompson lived with Ms Fennell in premises at Greta. Another co-accused, Mr Hamilton, lived in a shed in the backyard of the property.
5On 14 December 2009, there were a number of telephone conversations between Mr Thompson and Mr Riley. At 6.23pm on 14 December 2009, there was a text message sent to Mr Riley's phone. His phone was then switched off at or about 6.30pm that day. Mr Thompson's mobile phone records disclose that Mr Riley was his only phone contact during 14 December 2009. The next use of Mr Thompson's phone was a text message sent by him to Mr Hamilton at 12.10am on 15 December 2009. Thereafter, Mr Thompson made a mobile phone call to Ms Fennell. That mobile phone call was at 4.23am on 15 December 2009.
6Mr Riley's mobile phone was reactivated at 11.30am on 15 December 2009 using Mr Hamilton's SIM card. The mobile phone was later recovered from Mr Hamilton.
7On the morning of 18 May 2010, police officers spoke with Ms Fennell, who had, since the date of the offence, separated from Mr Thompson. During the course of the electronically recorded interview, Ms Fennell told the police that she had not been home on the day in which the murder occurred, but on returning home Mr Thompson had indicated to her that he wished to speak to her. Ms Fennell told police that Mr Thompson said that he had arranged to meet Mr Riley to purchase two ounces of speed. Mr Thompson, according to Ms Fennell, said he had met with Mr Riley in order to rob him of the drugs. For that purpose he produced a rifle. Ms Fennell told police that Mr Thompson had said that the deceased lunged at the gun and he, Mr Thompson, panicked and the gun discharged.
8Apparently, Mr Thompson inherited the gun from his father. He also possessed ammunition for it. The gun used was a .410 shotgun.
9Mr Thompson, as earlier noted, planned the robbery. He knew Mr Riley was not armed. The shotgun used to kill Mr Riley had been unlawfully shortened and Mr Thompson took two rounds of ammunition with him. Further, before the shooting, Mr Thompson had armed the shotgun by pulling the trigger guard back off the shotgun, cracking the rifle and loading it. He then pulled the hammer back in order to allow the trigger to be pulled all the way back and this enabled him to discharge the shotgun. All of the steps had been taken, other than the pulling of the trigger, prior to meeting with Mr Riley (see Transcript, p 12-13).
10Mr Thompson's intention was to rob Mr Riley. He did so, according to his evidence, because of his desperate financial and family situation. But Mr Thompson would not have known that Mr Riley had any significant amounts of money in his possession. If, as is stated, Mr Thompson was intending to rob Mr Riley in order to resolve his financial problems, Mr Thompson's intention must have been to rob Mr Riley of drugs and thereafter to sell those drugs.
11After shooting Mr Riley, Mr Thompson took the drugs that he had arranged for Mr Riley to bring to the location. He searched Mr Riley's wallet and removed $2,300 in cash that Mr Riley had in his possession. He also took Mr Riley's mobile phone. Mr Thompson placed Mr Riley in the rear of Mr Riley's vehicle and drove that vehicle into nearby bushland.
12Mr Thompson returned home in his own vehicle and, on the way, removed the SIM card from Mr Riley's mobile phone and threw it away. He told Ms Fennell and Mr Hamilton what he had done. After seeking and obtaining advice from Ms Fennell and Mr Hamilton, Mr Thompson broke the shotgun into three pieces and arranged for the disposal of each piece in a different location. Mr Thompson burnt the clothing he was wearing at the time of the murder.
13Later on 15 December 2009, together with Ms Fennell and Mr Hamilton, Mr Thompson drove in Mr Thompson's car to where he had left Mr Riley and Mr Riley's vehicle. There, Mr Thompson entered Mr Riley's car, drove it to Mount Sugarloaf, with Mr Riley still in the boot. Mr Thompson pulled into a small car park, removed Mr Riley from the boot of the car and dragged him to the swamp in Minmi Creek, where Mr Thompson dumped him.
14Mr Thompson then set fire to Mr Riley's vehicle, using petrol he had brought with him from home. Ms Fennell who, with Mr Hamilton, had followed Mr Thompson in the other car then drove Mr Thompson home.
15Initially Mr Thompson gave police an account, which was wholly exculpatory. It was only after Mr Thompson learnt that Ms Fennell had assisted police with their enquiries that Mr Thompson confessed to the murder. The foregoing is predominantly derived from a Statement of Agreed Facts and the transcript of the electronically recorded interviews that are in evidence. Oral evidence was also adduced, in particular, from Mr Thompson.
16Mr Thompson alleges that Mr Riley lunged at him, causing panic as a consequence of which the gun discharged. I am not satisfied that Mr Riley was killed in that way. At the time that the shotgun discharged, Mr Riley was holding two bags of amphetamines, one in each hand. It is most unlikely, given the presence of a firearm and the fact that Mr Riley had his hands full of illegal drugs, that Mr Riley lunged at Mr Thompson and caused, albeit in a state of panic, Mr Thompson to discharge the firearm.
17Nevertheless, I am not satisfied beyond a reasonable doubt that the discharge of the firearm was deliberate. As a consequence, I cannot take into account any notion that Mr Thompson deliberately discharged the shotgun or deliberately killed Mr Riley.
18The Crown does not allege an intention to kill or cause grievous bodily harm. The charge of murder is based upon a killing that has occurred in the course of the commission of a felony.
19Yet, the killing occurred in the course of a planned armed robbery in which the weapon was deliberately armed and dealt with so as to facilitate the shooting. The planning included the organising of a fake drug deal, the luring of the deceased to a secluded area, being even further into the bush than where the two had previously dealt in drugs, and Mr Thompson's consideration that, once robbed, Mr Riley would have no knowledge of Mr Thompson's home or work address and, because of the illegality of the underlying conduct of both Mr Riley and Mr Thompson, Mr Riley would not inform, or would be unlikely to inform, the police.
20Further, as already stated, the robbery was motivated by greed and was to be used to facilitate a further supply of drugs. The Crown submits that I should take into account aggravating features described in s 21A of the Crimes (Sentencing Procedure) Act 1999 (hereinafter "the Act"), and in particular ss 21A(2)(b), (c) and (n). However, notwithstanding that defence counsel does not cavil with that approach, the aggravating factors described in ss 21A(2)(b) and (c) are elements of the offence. It is difficult to imagine a murder that did not involve the actual or threatened use of violence, although one could have a murder that did not involve the actual or threatened use of a weapon.
21The aggravating feature described in s 21A(2)(n) is in a different category. I have already remarked as to the planning involved in the totality of the offence. Although, I do have regard to the fact that the killing was not an intended or planned result.
22Overall, the provisions of s 21A(2) of the Act do not aggravate the offence beyond that which is involved in determining its objective seriousness. I accept the Crown submission that the offence falls in the mid-range of objective seriousness for the crime of murder. While the Crown submits that the objective seriousness is in the upper end of that mid-range, there is no need to be more precise than that the offence is clearly within the mid-range.
23Traditionally the crime of murder has always been regarded as the most serious of crimes because it involves the felonious taking of human life. The legislature has set a maximum sentence of life imprisonment for the worst case of murder and a standard non-parole period of 20 years. These are the guideposts by which the sentence that I must now impose must be measured.
24As is clear from the difference between the maximum penalty and the standard non-parole period, even within a crime perceived as the most serious because of our society's view of the sanctity of human life, there is a range of culpability associated with the crime. I have determined the objective features, which measure the culpability of Mr Thompson and I must now deal with his subjective circumstances. Before doing so I should briefly set out the purposes of sentencing in a case such as this.