R v AMOS

Evidence called for the offender 6A report by Mr John Taylor, forensic psychologist, dated 5 July 2012 was tendered on behalf of the offender (exhibit 1 in the sentence proceedings). 7In his written submissions, Mr Stewart properly acknowledged that the offender, having been found guilty at trial, no discount for plea or for remorse was available. 8By s 54B(2) of the Crimes (Sentencing Procedure) Act 1999 (the "Sentencing Act") a standard non-parole period is prescribed for a case of murder of 20 years.

9Section 3A of Sentencing Act sets out the purposes of sentencing, which are: (a) To ensure that the offender is adequately punished for the offence; (b) To prevent crime by deterring the offender and other persons from committing similar offences; (c) To protect the community from the offender; (d) To promote the rehabilitation of the offender; (e) To make the offender accountable for his or her actions; (f) To denounce the conduct of the offender; (g) To recognise the harm done to the victim of the crime and the community. 10A person who commits the crime of murder is liable to imprisonment for life: s 19A(1) Crimes Act 1900. By s 21(1) of the Sentencing Act, a Court may nevertheless impose a sentence of imprisonment for a specified term. 11Section 21A of the Sentencing Act requires, that in determining the appropriate sentence for an offence, the Court is to have regard to the aggravating and mitigating factors referred to in that section that are relevant and known to the Court. 12When sentencing an offender to imprisonment for an offence, a Court is required, first, to set a non-parole period for the offence (that is, the minimum period for which the offender must be kept in detention in relation to the offence) and then specify a balance of term of the sentence: s 44(1) of the Sentencing Act. 13A standard non-parole period of 20 years is prescribed for the offence of murder by s 54B of the Sentencing Act. However, where a standard non-parole period is prescribed for an offence, a sentencing judge must proceed in accordance with the approach required by law, in particular, as enunciated by the High Court in Markarian v R [2005] HCA 25; (2005) 228 CLR 357 and in Muldrock v R [2011] HCA 39; 244 CLR 120. 14The High Court in Muldrock, (supra), stated that it was an error to characterise s 54A(2) as framed in mandatory terms. Where prescribed for the offender, a standard non-parole period is to be considered in accordance with the approach to sentencing prescribed in Makarian v R, (supra), per McHugh J at [51]. That requires that the sentencing judge to identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment as to what is an appropriate sentence given all the factors of the case. That approach requires the sentencing judge to be mindful of two legislative guideposts relevant to the offence for which an offender is to be sentenced: the maximum sentence imposed and the standard non-parole period. 15The standard non-parole period is not to be taken as the starting point in the sentencing for the mid-range of an offence after conviction: Madden v R [2011] NSWCCA 254 at [35] per Simpson J. 16The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. 17In sentencing an offender, relevant objective and subjective factors are to be taken into account in determining an appropriate sentence. 18The Crown, in its written submissions at [48] helpfully summarised the principles enunciated by the High Court in Muldrock (supra). It is not necessary here to reproduce what is there set out. I have, however, had close regard to them.

19The Crown in its submissions properly observed that aggravating factors, that are part of the elements of the offence of murder, must be excluded. The Crown submitted that in this case the following are the relevant aggravating factors which are to be taken into account in accordance with s 21A(2) of the Sentencing Act: "(eb) the offence was committed in the home of the victim; ... (n) The offence was part of a planned or organised criminal activity; (o) The offence was committed for financial gain." 20The Crown observed that the offence of robbery was planned by the offender and the co-offender, Rafter. It was on that basis that the Crown submitted that in respect of the offence of murder there was an aggravated by the fact that it was part of a planned or organised activity. The Crown, correctly acknowledged that, the murder itself was not planned. The Crown submitted the motive for the offence was financial gain on the basis that if the robbery had been successful the offender would have received $2,000. 21The Crown also observed that the offender had shown no remorse. Remorse may only be taken into account as a mitigating factor where an offender provided evidence that he or she has accepted responsibility for the offence. In the present case that has not occurred as the offender has denied his involvement in the crime. 22In some cases a finding of "special circumstances" may be found which provides a basis for altering the statutory ratio of a non-parole period to a parole period specified in accordance with s 44 of the Sentencing Act. As the Crown noted, that provision calls for a decision as to whether a finding of special circumstances can and should be made. If so, whether the particular circumstances of the case justifies a lower proportion between the head sentence and the non-parole period. 23The Crown submitted that despite the offender's youth there were no special circumstances given the nature of his crime, which, it was submitted called for condign punishment. 24The maximum penalty for an offence in the case of murder, life imprisonment, is intended for cases falling within the worst category of case for which the penalty is prescribed. 25It is not possible to prescribe a list of cases that fall within the worst category, although included within it clearly are cases involving an extreme level of culpability. Contract killings have been found to fall within the worst category of case and certain cases involving a planned killing for financial gain may also fall within that category. 26In the present proceedings, the Crown properly observed that on the facts proved, the co-offender, Rafter, did not contemplate that the present offender would shoot the deceased, Mr Thurman. The Crown submitted that the offender shot Mr Thurman when there was no need to do so. His action in doing so, the Crown contended, illustrates the dangerous nature of his character. The Crown submitted that the offence committed by the offender was to be assessed as being in the higher level of a callous murder, although not as serious as, for example, a contract killing as described in Burrell v The Queen [2007] NSWCCA 65. 27The Senior Crown Prosecutor amplified this submission in his oral submissions in reply emphasised that notwithstanding there was no premeditated plan to shoot Mr Thurman the facts related to the killing included the fact that he shot his victim eight times and in evidence Ms Webb who said that he told her that he shot him in the body but that as that had not killed the deceased, he shot him in the head. Accordingly, the Crown's submission was that the subject offence was a callous, cold-blooded murder deserving of condign punishment. 28Finally, the Crown submitted the case was just under the worst case scenario, that the culpability of the offender was very high and that a non-parole period substantially more than the standard non-parole period was appropriate.

Submissions for the Offender 29Mr Stewart, on behalf of the offender, properly acknowledged that the fact that the offence was committed in the victim's home was an aggravating factor. As to whether or not the offence could be regarded as part of a planned or organised criminal activity, the submission was that there was no evidence to support that proposition. In particular, it was submitted, the evidence did not establish that the offender attended the vicinity of the victim's premises, having planned or previously decided to shoot at, or murder, Mr Thurman. Mr Stewart submitted that whilst there was planning involved in anticipation of staging a robbery, it could not be said that the murder was at all a planned event. 30The Crown, of course, has the onus of establishing an aggravating factor beyond reasonable doubt. Mr Stewart submitted that there was no evidence upon which a finding could be made to the requisite standard that the offence of murder was planned or premeditated. I have earlier outlined the Crown's concession that the evidence establishes that the robbery was planned, but the murder was not planned. 31In relation to the issue of the offence having been committed for financial gain, Mr Stewart submitted that the evidence is silent as to the state of mind and motive of the offender in the period from when he was waiting outside the residence to when he entered and shot Mr Thurman. 32Accordingly, it was submitted that there should not be a finding of an aggravating factor in terms of s 21A(2)(o) of the Sentencing Act. 33In terms of mitigating factors, Mr Stewart relied upon the fact that the offender does not have a record of previous convictions and in particular, does not have any record of convictions for matters of violence. This, he submitted, was to be taken into account by way of mitigation. 34In answer to the Crown's submission as to the level of culpability involved in the offence, Mr Stewart submitted that the absence of planning/premeditation in relation to the offence of murder and the absence of other factors common to cases in the worst category of case leads to the conclusion that the offence in question in this case falls significantly below the worst case. 35Mr Stewart in oral submissions in relation to s 21A(2)(n) relied upon by the Crown, as an aggravating factor, submitted that notwithstanding the fact that there was a plan, a criminal enterprise, the evidence did not support the proposition that part of the plan was to murder Mr Thurman (Transcript 20 July 2012, p 10). He further submitted there was no evidence of what was in the mind of the offender when he was outside the deceased's home and there was "no planned killing" (T 11). Further, he had not conveyed to his co-offender Rafter, that he was going to shoot Mr Thurman (T 13). 36Mr Stewart also submitted that the offenders' act in shooting the deceased should be seen as "impulsive" rather than planned (T 13). He cross-referenced this to Mr Taylor's report (see report [2.5]). 37Mr Stewart's written submissions additionally addressed the subjective circumstances of the offender. It was pointed out that he is a 23 year old man and he was only 20 years of age at the date of the offence. 38Mr Stewart, like the Crown, noted that he had been in custody since the date of his arrest on 3 February 2010. 39The fact that he is a young man with no prior convictions was emphasised as a matter of importance in assessing the appropriate sentence to be imposed. 40Ms Christine Bathurst was called by Mr Stewart to give evidence at the sentence hearing. Ms Bathurst had known the offender for some years having first met him in 2003. Ms Bathurst's daughter and the offender formed a relationship at about that time. I will refer to her evidence later in these remarks. 41The report of Mr John Taylor, it was submitted, supported the proposition that the offender had had an extremely difficult family history. He lost his father at an extremely young age and his mother was a drug user and an alcoholic. Reference was made in the report to significant abuse and neglect having been suffered by the offender during his childhood, including that he had been taken into foster care at the age of 10 and for a period of a year he lived on the streets. 42From age 15, he was drinking alcohol on a daily basis. From age 16, he was becoming intoxicated every day and maintained that pattern of drinking until going to prison. He admitted to Mr Taylor that he commenced smoking cannabis at the age of 14 and after a short period, ecstasy on weekends. By the time he was 16 years of age, he was using ecstasy almost on a daily basis and he did that for a period of about 12 months and thereafter, only on weekends. 43From about the age of 18, he began to inhale cocaine about once a week. After approximately 12 months, he was using cocaine several times each week. Mr Stewart's submission was, having regard to the offender's childhood and family background, it would be almost inevitable that the offender would develop significant emotional and developmental issues. Reference was made to the observation of Mr Taylor who said at [8]: "However, the nature of his early environment would have had a significant impact on his social and emotional development." 44It is noted in submissions that the offender had told Mr Taylor that he believed he had not any emotional problems in the past and had never undertaken counselling. However, Mr Stewart submitted that the evidence suggests that at the time of the commission of the offence, the offender was a young man with significant emotional issues resulting from a difficult history. Additionally, he had very little insight into the impact that his history and childhood experience had had on his emotional and behavioural development. 45Attention was drawn to Mr Taylor's diagnosis that the offender had a personality disorder with antisocial characteristics, as well as a substance disorder. It was submitted that the disorder was related to the dysfunctional childhood history. 46It was submitted that the offender's history and diagnosis and the conclusions of the psychologist provide a possible partial explanation for how he could have behaved in the manner disclosed by the evidence in the case. 47In terms of the future it was submitted that given the offender's relative youth and his troubled background, the Court would be of the view that he has realistic, if guarded, prospects of rehabilitation. It was noted that he had continuing community support from Ms Bathurst and her daughter. 48Mr Stewart submitted that a finding of special circumstances would justify a lower proportion between the head sentence and the non-parole period. These included his age, his troubled background, the long-term substance abuse, the fact that he had not previously been in custody or that he had for the first time a realistic opportunity to engage in programs and counselling to address issues arising from his history. All of the circumstances referred to in the written submissions were said to be relevant in determining the appropriate length of the minimum period of actual incarceration. 49Ms Bathurst in evidence stated that she had had close contact with the offender once he took up full-time residence in her home in about 2006. She stated that she considered he was a "...beautiful young man, he was hard-working, honest, loyal, very loving" (T at 3). 50She said he worked long hours and became part of her family. He resided in Ms Bathurst's home for the best part of two years and she did not witness any violent behaviour from the offender. Her daughter, who formed a relationship with him, did not complain of any violent conduct by him. The relationship between the offender and her daughter terminated at the end of 2008 and the offender then stopped residing at her premises. Ms Bathurst said she spoke to him a couple of times on the telephone and he visited her home on about two occasions thereafter. She said in evidence that she had been unaware he had any particular interest in firearms. She said did not observe him abusing alcohol in the period that he lived in her house, nor did she see him using drugs. 51Since he has been in custody she has visited the offender on a frequent basis. She said that she intended to maintain her contact and relationship with him by way of support. She believed her daughter would do the same. 52Ms Bathurst agreed in cross-examination that the description that she had given of the offender's character was completely contrary to the evidence that she heard about him during the trial. She agreed that the act of shooting the deceased did not at all equate with her description of his character that she had given in evidence. Similarly, the evidence as to his dealing with guns did not fit with the description that she had given. 53Additionally, she agreed that the evidence at trial as to domestic violence was not consistent with the person she had described in evidence (the offender).

Determination 54The factual findings I am required to make for sentencing purposes, in particular those that inform the objective seriousness of the offender's criminal conduct, including but not limited to the question of intent, must be consistent with the jury's verdict. Any findings of fact adverse to the offender, again including but not limited to the question of intention, must be proved beyond reasonable doubt. 55In determining an appropriate sentence, in this case it is necessary to bring to account all of the relevant circumstances bearing upon the objective gravity of the offence and the subjective factors to which I have referred. Before doing so, it is appropriate to have regard to some observations that assist in applying relevant principles to the circumstances of the case. 56It is well-accepted that whilst all murders are, of course, to be regarded as extremely serious, the range of circumstances which may bear upon the objective gravity of this category of crime is widely variable: R v White [2005] NSWSC 667 at [33]. Questions of planning and premeditation are, as would be expected, important matters in determining sentence. The absence of planning is one factor to be evaluated and weighed along with all other relevant factors in determining the objective circumstances of the offence. In some cases the absence of planning has been considered to be a matter that may reduce the objective seriousness: see R v Shepherd [2006] NSWSC 799. 57In the case of murder, the state of mind with which the offence is committed is an important consideration upon the issue of the objective seriousness or the gravity of the offence. Murder may be established by proof of an act causing death committed when the act is accompanied by one of three states of mind: they are; an intention to kill, or an intention to cause grievous bodily harm or reckless indifference. Those states of mind may often be taken as operating in descending order. 58It has been stated that an intention to kill, as distinct from either of the other two alternatives, is a consideration tending to greater objective seriousness than lesser: Apps v R [2006] NSWCCA 290 at [49] per Simpson J. 59Similarly, in the Versluys v R [2008] NSWCCA 76 at [34], McClellan CJ at CL stated: "It may be accepted that a murder which is not premeditated would usually be less serious than one which involves planning. However, murder is a crime which can be committed under a very wide range of circumstances and the absence of premeditation does not dictate a finding that the objective seriousness of a particular offence falls below the mid-range." 60That case was decided before the High Court's decision in Muldrock (supra) so that statement as to the objective seriousness and absence of premeditation must be considered with that in mind. The fundamental point, however, as expressed in that case is that the absence of premeditation may be offset, at least to an extent, by other factors that point the other way and which may affect the objective gravity of an offence. 61The issue of future dangerousness of an offender may also be relevant. However, that said, it is impermissible to increase an otherwise appropriate sentence merely to achieve preventative detention: Veen v R (No 2) [1988] HCA 14; 164 CLR 465 at 473-474. A risk of re-offending, however, is a matter that may be considered. Having regard to evidence at trial a sentencing judge is entitled to take the relevant circumstances into account in determining the question of future dangerousness: Crown v Garfoth (23 May 1994, NSWCCA, unreported). 62That said, potential dangerousness is not a matter to be given such weight as to lead to a penalty that is disproportionate to the gravity of the offence. 63Another factor may be taken in to account is whether or not the murder was motived by financial greed. Where that is proved it can constitute an aggravating factor: Adanguidi v R [2006] NSWCCA 404; (2006) 167 A Crim R 295 at [4]; R v Smith [2000] NSWCCA 202 at [164] and [166]. 64In the present case, I make findings in accordance with the undisputed statement of facts to which I have earlier referred. The evidence supports, beyond reasonable doubt, the following facts: (i) That the offender and his co-offender Rafter entered into a planned arrangement to recover monies from the deceased. (ii) That the offender and Rafter agreed between themselves that, as necessary, they would recover the monies from the deceased by means of armed robbery (iii) The offender and Rafter embarked upon the criminal enterprise with the offender arming himself with a loaded rifle. (iv) It was part of the agreed criminal enterprise that the offender would use the rifle as necessary to effect armed robbery upon the deceased. (v) A short time after Rafter entered the house and confronted the deceased, the offender took it upon himself to enter the house, point the loaded weapon at the deceased and then fire the .22 calibre semi-automatic rifle eight times thereby killing the deceased. (vi) The deceased was not armed with any weapon at that time. 65On the basis of the above findings, it is clear that the enterprise agreed upon would involve the use of the weapon as necessary to effect an armed robbery. The offence or murder arose in the course of and occurred as part of a planned or organised activity, namely the planned offence of robbery. That, on the evidence and facts to which I have referred was an aggravating factor under s 21A(2) of the Sentencing Act. 66At some point between the co-offender Rafter entering Mr Thurman's home and the shooting, the offender formed the intent to kill the deceased. The evidence does not permit a finding to be made beyond reasonable doubt that the offender had formed an intention to kill the deceased prior to him entering the deceased's house. The fact that after he entered it pointed the semi-automatic .22 calibre rifle directly at Mr Thurman and then fired it plainly establishes, beyond reasonable doubt, that at the time of firing the weapon he had the intention to kill the deceased. The shooting of Mr Thurman occurred very soon after he stood up and indicated to Rafter that he refused to pay the alleged drug debt. 67Whilst the evidence does not support a finding of pre-meditated intention in the offender to kill the deceased before he entered Mr Thurman's home, the circumstances in which he fired the semi-automatic rifle discharging eight projectiles at the deceased, significantly adds to the objective seriousness of the offence. It was and I find to the requisite standard a callous murder involving a high level of culpability. 68On the evidence and the findings I have made, the factors which aggravated the offence of murder were: (i) Firstly, as I have stated that the offence was part of a planned or organised criminal activity; (ii) Secondly, that the offence was committed for financial gain; (iii) Thirdly, that the offence was committed in the home of the victim, Mr Thurman. 69I have earlier set out the submissions on behalf of the Crown and the offender. I have given close consideration to all submissions and have, in particular, brought into account all the mitigating and subjective factors that have been raised on behalf of the offender in determining sentence. 70In making that determination I have taken into account that this is a case of a young offender of 20 years of age, who had no prior convictions, and who had a deprived upbringing. 71The principles that apply to the sentencing of young offenders and the importance of their rehabilitation are well-established and are to be applied in this case in the context of the facts. By reason of an offender's immaturity, an offence can be attended by some excess, or a particular act of sudden violence may occur, which someone who is more mature would not engage in. This may occur with an immature person has been brought up in a violent environment, where all too readily violence is a first response to any kind of opposition. The evidence does not establish sufficient circumstances to put this case in that category. 72In R v Gordon (1994) 71 A Crim R 459, Hunt CJ at CL with whom McInerney and Sully JJ agreed, addressed the factors relevant to the sentencing of a 19 year old offender in respect of serious offences. His Honour there observed: "Although the respondent was not a person to whom the provisions of s6 of the Children (Criminal Proceedings) Act 1987 applied - namely, someone under the age of eighteen years - his youth is not to be disregarded in the sentencing process. Far from it. But it does mean that general deterrence remains of primary importance and, where a youth conducts himself in the way an adult might conduct himself and commits a crime of considerable gravity, the protective function of the criminal courts would cease to operate unless deterrence and retribution remained significant considerations in sentencing that youth: ... The respondent, moreover, had already accumulated by that age the appalling record to which reference has earlier been made." (at 469) 73See also the judgment of the Court of Appeal in R v AEM & Ors [2002] NSWCCA 58 at [96] to [102] in relation to the interrelationship to general deterrence and the youth of an offender. 74The evidence at trial established beyond reasonable doubt that he returned to the deceased's home after killing Mr Thurman and set about finding the deceased's money. 75The offender has, having refused to accept responsibility for the murder, demonstrated neither regret, nor remorse, at what he had done. 76Based on the tests administered by Mr Taylor and his analysis of the offender's personality and background, it is clear that he has a personality disorder with anti-social characteristics and a substance abuse disorder. His anti-social attitudes, no doubt on the evidence, may be traced back to his having been raised in a dysfunctional and abusive early family environment. That, of course, in no way mitigates the seriousness of his offending. It however, provides a background which throws some light on the deep seated behavioural issues identified by Mr Taylor. 77These matters, in other words, provide insight and explanation, but of course, they do not in any way provide any justification for the tragic and the extremely serious offence of murder in this case. 78They are factors all to be brought into account on sentencing and are to be given appropriate weight in the consideration of issues of reformation and rehabilitation of the offender when determining sentence.

Victim impact statements 79I have read the victim impact statement of Ms Geraldine and Mr Tom Thurman dated 12 July 2012. They have stated in concise terms the enormous loss they have experienced with the tragedy of their son's death and the difficulties they have experienced since then and until the guilty verdict was given. 80The statement of Ms Kim Thurman eloquently states the enormous impact that the tragedy of her brother's death has had upon her. 81These statements by law cannot be used by me to increase the offender's sentence: R v Previtera (1997) 94 A Crim R 76. I, however, acknowledge the grief and distress of the deceased's family and express, on the community's behalf, sympathy and compassion for them. 82In the determination of the appropriate sentence, I have also had regard to the subjective factors to which I have earlier referred, including, in particular, the offender's relatively young age and deprived upbringing. The deprivation undoubtedly had some bearing upon these developments leading to the crime. 83Finally, I have also had regard to the fact that the nature and the circumstances of the offence provides some support for the existence of a risk of re-offending by the offender in terms of future dangerousness. As I have earlier stated, however, this of itself, is not a factor that permits an increase in an otherwise appropriate sentence. It may be considered as a factor which modifies either in whole or in part a potentially mitigating feature of the case. I have taken it as but one factor that is to be considered as a mitigating factor, along with the mitigating factor to which I have referred. 84Taking all circumstances into account and based on the findings that I have earlier referred to, I have concluded that the appropriate non-parole period is a period of 21 years imprisonment with a balance of term of seven years. 85In relation to the question of special circumstances, I have considered the matters raised in submissions on behalf of the offender. I have also had particular regard to matters set out in Mr Taylor's report. That report indicates that the offender has at least a moderate risk of recidivism, although I note the variations in the various assessments set out in Mr Taylor's report at [2.8]. The results of psychometric testing diagnose him as having an anti-social personality disorder and an above average predisposition to engage in substance abuse. Mr Taylor has opined that the offender does have some prospects for rehabilitation and that these prospects would be assisted if he were able to maintain his supports in the community. However, on the basis of this assessment any prediction as to the prospect for rehabilitation must be considered to be guarded. 86I do not consider that the evidence would support or warrant the finding of special circumstances. Accordingly, I decline to make such a finding. 87Taking into account all factors that are relevant to sentence I conclude that the appropriate overall sentence is 28 years. Applying the statutory ratio of the non-parole period to the parole period produces a non-parole period of 21 years which I consider to be the appropriate minimum period for which the offender must be kept in detention in relation to the offence. 88As I have earlier stated the prescribed standard non-parole period for the offence of murder is 20 years. In accordance with the provisions of s 54B(4) of the Sentencing Act, I record that the longer non-parole period to be imposed of 21 years, as against the standard non-parole for the offence, takes into account the fact that the offence was committed in the home of the deceased, a factor within s 21A(2)(e) of the Sentencing Act and that the offence was part of a planned or organised criminal activity a factor within a 21A(2)(n) of the Sentencing Act. 89Luke Edward Amos for the murder of Richard Thurman, I convict you. I sentence you to a term of imprisonment with a non-parole period of 21 years which is to commence on 3 February 2010 and to expire on 2 February 2031 and a balance of term of 7 years to commence on 3 February 2031 and to expire on 2 February 2038.

ORDER 90The offender is sentenced to a term of imprisonment with a non-parole period of 21 years to commence on 3 February 2010 and to expire on 2 February 2031 and a balance of term of seven years to commence on 3 February 2031 and expire on 2 February 2038. 91The earliest date of eligibility for release to parole is 2 February 2031. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2012