R v Archer

The impact on Mr Bradshaw's love ones

1. I was privileged to hear the victim impact statements read by Mr Bradshaw's wife of 30 years, Joanne, and the couple's two daughters, Kirsty and Kylie. Those statements also form part of Exhibit S-A, a bundle of documents tendered by the Prosecutor.
2. It is obvious that Mr Bradshaw was greatly loved by his ex-wife, daughters and other members of the community with whom he interacted. His ex-wife remained friends with him after the couple separated and she moved with her daughters to Queensland. She described the beautiful relationship that Mr Bradshaw had with his daughters and the terrible impact his death has had on her, but more particularly, the two young women. She told the offender "you will never know the heartache and helplessness I felt as a mother to take my two daughters into a room where their father's lifeless body was displayed on a table for them to say goodbye". She described the murder of her ex-partner as malicious and cowardly. She attempted to describe that which is perhaps impossible to describe, namely the shock, devastation and surreal nature of receiving the news that the father of her children had been murdered. She described him as someone who helped the underdog and the underprivileged despite his own circumstances, and a person who knew that life could be hard and a struggle.
3. Kirsty Bradshaw is the eldest daughter of David and Joanne. She described her dad as a kind, loving, caring and hard-working man who went "above and beyond" for the ones he loved. She said he was an amazing father. She described the depression she sank into after she found out about her father's death and visited the Kendall building where he had lived before his death and where the murder took place. She said her father was the kind of man "who took homeless people off the street and gave them a place to stay and something to eat when he could barely afford things for himself". She described her own response to his death as feeling "numb, angry, lost and confused". But most of all, she felt broken and like a part of her died with her father. She was generous enough to share with the Court a number of photographs of her father throughout his life.
4. Kylie is the younger daughter. She said her dad was her world, her hero and that he was kind, patient and had a gentle soul. She described the "unbearable heartache, depression, anger, denial, fear and anxiety" that she has suffered since the murder. Like her mother and sister, she described how difficult it was to see the Kendall building and realise the circumstances in which her father had lived in the period leading up to his death.
5. Each of the family members who provided the statements described how difficult it was to attend the criminal trial and hear falsehoods perpetrated against their father and criticisms of his character. In various ways, they ask the Court for justice.
6. The Prosecutor's application is that I take into account the impact of this murder on the secondary victims in a principled way and in accordance with the previous authorities of this Court. [1] As I said to Mr Bradshaw's family on the day of the sentencing hearing, nothing I can do in sentencing Mr Archer and nothing I can say in this judgment, can do anything to relieve them of the trauma and pain they have experienced and will continue to suffer.
7. I hope that their suffering will ease over time, but I do not know that it will. That is because Mr Bradshaw was such an important person in their lives.
8. I thank each of you - Joanne, Kirsty and Kylie - for your dignity and restraint in providing the statements and assure you that your suffering and loss will be taken into account in the imposition of this sentence.

Background

1. Returning to the facts of the murder, it is necessary to first set out the background very briefly.
2. Both the victim and the offender were residents, perhaps occasional residents, of the housing block known as the Kendall Building. In the days and weeks leading up to Mr Bradshaw's killing, the offender was the victim of some form of breaking and entering of his apartment, in the course of which the perpetrators stole certain items of his property. The evidence established that Mr Archer was very angry about this and took steps to find out who had his property and in particular, his personal computer. He suspected, and accused, Mr Bradshaw of being one of the people who broke into his apartment. It seems that this was not true. However, it was true that Mr Bradshaw had come into possession of the offender's computer, in circumstances that are unimportant and unknown (at least to the Court). The offender took steps to retrieve the computer through other residents of the apartment building.

The killing of Mr Bradshaw

1. On the evening of 15 February 2020, the offender attended the premises to collect some belongings and stay at the premises of his long-term partner and their children. They lived a short distance away. One of the witnesses who gave evidence at the trial, Ms Julie Roberson, contacted him and said the laptop was at her apartment. Her apartment was on the third floor and the offender packed his belongings and went down to Ms Roberson's flat.
2. When he went downstairs, he was carrying a knife. Ultimately, that knife became the murder weapon.
3. Several witnesses gave evidence of the events that followed.
4. In general terms, the prosecution case was that the offender and the victim came into contact just in, or outside of, Ms Roberson's unit, and the offender immediately attacked him with the knife and a struggle ensued. During that struggle, the offender stabbed the victim once, penetrating his scapula, entering the chest cavity and penetrated his lung into his aorta. Another resident, Mr Watts, pushed Mr Archer away and ushered him from the scene.
5. The defence case at trial was largely based on the offender's version of events. He gave evidence that when he arrived at the unit of Ms Roberson, he was set upon by Mr Bradshaw and Ms Kiplagat. He said the actions he then took were in self-defence. He said that he was punched in the face by Mr Bradshaw twice before producing the knife. He said that he did not deliberately stab the victim but rather, that the stab wound was caused in the course of a struggle in which he was the original victim.

Rejection of the offender's evidence

1. The jury was invited to consider whether the prosecution had excluded, beyond a reasonable doubt, the possibility that the stabbing was an accident or, put another way, that it was not the result of Mr Archer's voluntary act. It was also called upon to consider whether the prosecution had excluded beyond reasonable doubt, the possibility that the offender acted in self-defence. As part of the directions on the latter issue, manslaughter by excessive self-defence was left to the jury. Manslaughter on the grounds of an unlawful and dangerous act (that is, absent a murderous intention) was also left to the jury.
2. The guilty verdict means that the critical features of the offender's account in evidence were rejected. Having observed the offender in evidence, I am unsurprised by the jury's conclusion. The offender's evidence was unconvincing and self-serving.

Findings as to who started the fight and its basic features

1. I am satisfied beyond reasonable doubt that the offender was the original aggressor in the altercation with Mr Bradshaw. I am satisfied beyond reasonable doubt that he deliberately inflicted the stab wound to the left upper back with sufficient force to penetrate the scapula (shoulder blade) and into the left chest cavity. I am satisfied beyond reasonable doubt, as the jury must have been, that the offender did not act in self-defence in any sense. He did not believe it was necessary to conduct himself as he did in order to defend himself.
2. I accept that there was a struggle, but this is based on the evidence of the other witnesses rather than that of Mr Archer. I reject the proposition that Mr Bradshaw was the instigator of the violence. Reliance was placed on the fact that Mr Bradshaw had a very large quantity of methylamphetamine or "Ice" in his system when the post-mortem examination was later conducted. Evidence was also tendered, by way of agreed facts, that Ice can have an impact on some users that result in them becoming aggressive and violent. However, that is not what happened here. There is no credible evidence that Mr Bradshaw did anything other than to respond to the offender's attack on him.
3. I am satisfied that the offender was motivated by anger, and that his anger arose from his belief that Mr Bradshaw was involved in the theft of his property. The fact (as it seems to be) that Mr Bradshaw was in possession of the stolen computer does not justify, or mitigate, the seriousness of the crime. The idea that such a property right would provide any form of excuse for stabbing somebody and causing their death is anathema to the priorities established under Australian law. The facts do not give rise to the mitigating factor of provocation, as provided for under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). I should note that Senior Counsel did not suggest that the theft of the laptop, or Mr Bradshaw's possession of it, did anything beyond providing some explanation for the events that unfolded.
4. I am unable to determine, with any degree of precision, the precise mechanism of death. There were at least three witnesses to the killing itself. There were others who gave evidence and who were close by but claimed not to have seen the altercation itself. I have considered the evidence given at the trial by the witnesses Ms Roberson, Ms Kiplagat, Mr Watts, Ms Haley, Ms Masila and Mr Boney. None of the witnesses was a perfect or reliable historian, and there was not a consistent or precise narrative of how the event unfolded. There were many conflicts in the accounts given. This is understandable given the urgency and brevity of the event. However, it is clear (to the point of being established beyond reasonable doubt), that the offender was the original aggressor, that he produced the knife, that he stabbed Mr Bradshaw in a deliberate act, and that he did so either with an intention to kill or an intention to inflict grievous bodily harm. The other matter of which I am satisfied is that in the initial confrontation, Mr Archer held the knife to or against his victim's neck. This is consistent with Ms Kiplagat's testimony and the evidence of the forensic pathologist who described some superficial "incised wounds" to the neck of the victim. [2]
5. Two issues of fact, which were ventilated at the sentencing hearing, need to be resolved if possible. It is not always possible for a sentencing judge to resolve every issue of fact. Where those facts are aggravating circumstances, it is for the prosecution to establish the relevant fact beyond reasonable doubt. Where it is a mitigating factor, the onus is on the offender to establish the matter on the balance of probabilities.

The offender's specific intention

1. One important issue is the intention of the offender at the time he stabbed Mr Bradshaw. If I were to find that he acted with an intention to kill (as opposed to an intention to inflict grievous bodily harm), it would be a more serious offence objectively. [3] Accordingly, I would treat this as an aggravating circumstance that must be established beyond reasonable doubt.
2. I am not satisfied beyond reasonable doubt that the offender acted with an intention to kill.
3. I have considered the submissions made by the Prosecutor, which were couched fairly and in appropriately moderate and diffident terms. While there are circumstances that might give rise to a finding of an intention to kill, such as words allegedly spoken by Mr Archer shortly before the killing, I found that evidence to be unpersuasive and far from overwhelming. The evidence of the threats to kill the people who stole from his apartment, even considered in the light of the events that followed, did not establish the more serious intention beyond reasonable doubt.
4. Two circumstances raise a substantial doubt that Mr Archer intended to kill Mr Bradshaw. First, there was a single stab wound and the degree of force required to penetrate the scapula may have been no more than moderate. Insofar as it is capable of quantification, Dr Pokorny's evidence was that the post-mortem examination "suggests there's a moderate to severe degree of force". [4] While the knife penetrated a bone (the scapula), it did so in a location where the bone was only 3mm thick (based on a CT bone scan), [5] and the pathologist agreed in cross-examination that the size of an individual's scapula and its depth beneath the skin varies and also depends on their age, weight, and whether they were upright. [6] Dr Pokorny also emphasised that the blade passed between the ribs and did not pierce or break a rib. [7]
5. Secondly, the offender did not continue the assault after Mr Bradshaw collapsed to the ground. One of the witnesses, Mr Watts, said the offender was standing over the victim and said words to the effect of "Do you want another one?" That evidence does not suggest that Mr Archer believed he had inflicted a fatal stab wound and, if he truly intended to kill Mr Bradshaw, he was ideally situated to continue the assault and stab the victim again.
6. Further, the urgency with which these events unfolded was such that there was little time for him to form an intention to kill. Even assuming he had made some threats towards those who he believed to have perpetrated the burglary of his flat and property, and even allowing that one of those threats was alleged to be a threat to kill, I am satisfied that he acted with an intention to cause grievous bodily harm, rather than an intention to kill.
7. I accept Senior Counsel's submission that murders involving an intention to inflict grievous bodily harm are (generally) objectively less serious than those involving an intention to kill. [8] I also accept that this case falls in that category.

When and why did the offender arm himself with the knife?

1. Another controversial question was exactly when and why the offender armed himself with the knife and, relatedly, whether that was his general habit.
2. The offender's evidence was that he armed himself with a knife that very night and shortly before he headed down to Ms Roberson's unit. He did this, so he said, to protect himself because he had been assaulted previously, in or near the Kendall building, and was the victim of the burglary to which I have referred. These events were reported to police. He also said, and there was plenty of evidence to support him on this, that the Kendall Building was a dangerous and unseemly place with many drug addicts and criminals hanging around. Finally, he claimed that the victim had threatened him in recent times.
3. There was a dispute at the trial as to whether the offender previously made threats to the victim or vice versa. The offender's evidence on this issue was unconvincing. I accept the tenor of the Prosecutor's cross-examination that Mr Archer appeared at times to be attributing his own conduct to the victim. On the other hand, the evidence relied upon by the prosecution to prove threats emanating from the offender relied on hearsay evidence that was equally unconvincing. I am unable to resolve these questions to any relevant legal standard. I would certainly not be prepared to make a finding adverse to the offender on the issue.
4. Even so, I do not accept the offender's version that he armed himself with a knife, coincidentally, in the few minutes before the fatal stabbing occurred. For how long he carried the knife, and to what extent this was his practice, is unclear.
5. In relation to this issue, the Prosecutor relied on a previous criminal offence committed by the offender to submit: "we certainly know in 2003 at least he was a person who carried a knife". [9] While that may be accepted, the extent to which it informs the circumstances in which Mr Archer carried a knife 17 years later is questionable. Tendency evidence to this effect was not relied on at the trial and I doubt, given the effluxion of time, it would have had the necessary probative value to warrant its admission on that basis. The provisions of the Evidence Act 1995 (NSW) do not apply to the sentencing proceedings, [10] and I accept the evidence has some relevance to the issue. However, I am not prepared to jump to a conclusion that the offender was in the practice of carrying a knife from 2003 up until the time of this offence.
6. I accept that the offender was unsettled by the events where he was a victim of crime - that is, the assaults and the burglary - and that this may have motivated him to carry a knife. There was a lot of evidence of the unseemly characters who lived in and visited the Kendall building. This included evidence from the police officer in charge of the investigation, who said police were called there on a daily basis to deal with people experiencing drug and mental health issues, and this included the investigation of violent offences. [11] However, exactly when Mr Archer started to carry a knife, and how often he carried one, is not clear to me. But I do not accept that he just happened to grab the knife in the minutes before he used it to stab Mr Bradshaw.
7. Whatever the answer to that antecedent question, the fact that the offender was carrying a knife is the reason this incident resulted in Mr Bradshaw's death. The legal consequence is that general deterrence has a significant role to play in determining the appropriate sentence. The sentence should aim to discourage other people from choosing to arm themselves with weapons capable of inflicting such serious injuries.

Objective seriousness of the offending

1. I accept the Prosecutor's submission that the factual dispute as to when the offender armed himself with the knife is not critical to an assessment of the objective gravity of the offence. What is critical is the fact that Mr Archer produced the knife when he did. Had he not done so, Mr Bradshaw would still be alive and his ex-partner and daughters would not be in the state of grief and bewilderment that they are. Of course, a finding that he always carried a knife would be relevant to sentencing and it is also relevant that at least part of his motivation was that he was unsettled by recent events. But in the end, it is an issue I am unable to resolve either for or against the offender. When all is said and done, it is not a matter that greatly impacts on the sentencing exercise.
2. The fact that the offence involved the use of a weapon is an aggravating circumstance pursuant to s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), although it has to be said that many murders are committed through the use of the weapon.
3. I am not satisfied that Mr Archer armed himself with a plan to commit the stabbing of Mr Bradshaw. The evidence suggests that their encounter was a chance meeting, and I accept the submission of Senior Counsel for the offender that the offence occurred because of the coincidence that the two men met at a time when Mr Archer was carrying a knife. To that mix, I would add that Mr Archer was angry over the theft of his property. It is of course, extraordinary that any man's death should result from the theft of some personal property.
4. The offence involved little if any planning and was not premeditated. It was not part of a planned or organised criminal activity: s 21A(3)(b).
5. Because there is a standard non-parole period of 20 years applicable to the offence, it is necessary to engage with the question of whether the offence falls in the "middle of the range of seriousness", but taking into account "only the objective factors affecting the relative seriousness of that offence". [12]
6. Senior Counsel for the offender submitted the offence "falls below the mid-point of objective seriousness." [13] That submission assumed that I accepted, as I have, that the relevant specific intention was to inflict grievous bodily harm (rather than to kill). The Prosecutor's submission was that, if I found no intention to kill, the offence "fell slightly below the mid-range of objective seriousness". [14]
7. I accept these submissions. There is a subtle difference between the language employed by counsel ("mid-point" and "mid-range" and the use of the qualifier "slightly"). Considering all relevant matters, and noting that it obviously remains an offence of great gravity, my finding is that the offence falls comfortably below the middle of the range of objective seriousness. In reaching this conclusion, I acknowledge the use of the knife and the fact that the offender was carrying it, but I place considerable weight on the lack of planning and the spontaneity of the attack, the fact that there was a single stab wound and no intention to kill.
8. While this finding means that the standard non-parole period does not apply, it remains a relevant "guidepost" along with the maximum penalty of life imprisonment. Those penalties reflect the sanctity with which the law treats human life, and the requirement that just and proportionate punishment be meted out to those who cause the kind of grief and devastation that has been caused to Mr Bradshaw's family.

Consideration of aggravating and mitigating factors and the offender's personal circumstances

1. I will not treat this judgment as a check-list, [15] but I will record some findings concerning the matters of evidence that are significant in my instinctive evaluation of the appropriate sentence in the peculiar circumstances of the case. I will also resolve the limited number of issues upon which the parties joined issue.

Section 21A(2)(d) - Criminal history

1. The offender has five previous criminal convictions. Two are minor drug offences (in 2008 and 2019) and are of no real relevance. There is also an offence of destroying property in 2012. The offender has prior convictions for two offences which meet the definition of a "serious personal violence offence" [16] and is to be sentenced for an offence of serious personal violence, which engages the terms of s 21A(2)(d). The most recent offence of violence was a common assault in 2011 and was dealt with by the imposition of a 12-month bond. The more serious offence was committed in 2003 and dealt with in 2005 when Mr Archer was sentenced to imprisonment for 5 years with a non-parole period of 2½ years. The facts of that offence were tendered by the Prosecutor on sentence. It involved a not dissimilar stabbing offence, charged as a wounding with intent to cause grievous bodily harm. This criminal record amounts to an aggravating factor under the terms of s 21A(2)(d). It disentitles the offender to leniency and is relevant to an assessment of his prospects of rehabilitation and the importance of specific deterrence and community protection in sentencing Mr Archer. [17]
2. However, the one really serious offence of violence is almost twenty years old and a positive aspect of the criminal record is that the offender has twice been placed on bonds, and once on parole, and each time he remained offence free for the required period and for some years beyond. There are substantial temporal gaps in his criminal history. Accordingly, I find that the offender's criminal record is not of such a kind that the sentence imposed should be increased, at least not to any significant degree; the sentence must remain proportionate to the circumstances of the offence. [18] However, as a matter of common sense, the sentence will be longer than that which I would have imposed if I was dealing with a first-time offender.

Section 21A(3)(i) - Remorse

1. At times, Mr Archer has expressed regret for the killing of Mr Bradshaw. However, he continues to maintain the killing was accidental and that he was acting in self-defence. There is nothing that persuades me that Mr Archer accepts responsibility for his own behaviour, and I reject any suggestion that he has established the kind of remorse which may be taken into account as a mitigating feature under s 21A(3)(i).

Section 21A(3)(h) - Prospects of rehabilitation

1. The risk assessment undertaken by Dr Katie Seidler placed Mr Archer at a low-moderate risk of re-offending. The Prosecutor submitted that in light of Mr Archer's repeated denial of any anger issues or anger related to the offending, there is a lack of insight into his behaviour which negatively impacts his prospects of rehabilitation. Mr Archer is now 49 years old and will be in his early sixties when he is released. His criminal record shows sporadic offending over many years, but it has been close to 20 years since he has committed a truly serious offence, which was the only previous occasion when he was sent to prison. That offence also involved stabbing somebody with intent and then telling lies about it. Given his age when he will be released, his obvious intelligence, the support he continues to enjoy from his partner and children, as well as the availability of a period of supervision on parole, I think his prospects of rehabilitation are reasonable. I am unable to find they are "good" and unable to make a positive finding that he is "unlikely" to offend again.

Background of deprivation and the offender's psychiatric and psychological condition

1. The offender relied on the psychological report prepared by Dr Katie Seidler and the psychiatric report by Dr Sathish Dayalan, which were both prepared in preparation for the trial or sentence.
2. Various provisional diagnoses and observations are made in those reports. In each case, the opinions are based on the history provided by Mr Archer. I am conscious of the comments of Allsop P (as his Honour then was) in Devaney v R. [19]
3. However, Mr Archer has proved to be such an unreliable historian, and his accounts in relation to the events of the night and surrounding this court case have been so self-serving, that I cannot act on the untested assertions he made to the experts. I have taken the history as disclosed into account, and acknowledge the possibility that as a child, he was abandoned by his primary carer, who later committed suicide, that he experienced a degree of displacement during his formative years and was subject to abuse and neglect in those environments, but am unable to find those things proved on the balance of probabilities. His evidence at the trial was littered with inconsistency, self-serving statements, and in some instances, outright lies. For example, he initially told police, falsely, that it was Mr Bradshaw who produced a knife and that it was left at the scene. [20] That was a patent fabrication proved by CCTV footage showing him disposing of the knife as he left the premises. He told a similar lie in 2003 ("he pulled a knife on me") when he was arrested for the serious stabbing incident in Balmain. The Prosecutor pointed out a number of inconsistencies in the histories provided to the experts, especially relating to his use of drugs. Some of these were explained at the hearing and I accept it may be that the experts recorded the history incorrectly or there was a misunderstanding. However, many of the inconsistencies were not explained.
4. I am unable to find that Mr Archer's moral culpability is reduced as a result of the asserted history of childhood deprivation, neglect and abuse. To put it bluntly, I am not satisfied on balance that the histories provided to Dr Seidler and Dr Dayalan are true or which parts of them are true.
5. Mr Archer's mental health history is also unclear. The Justice Health notes for Mr Archer on the 2 March 2021 record a statement from his treating GP (since at least 2015), who said there was no indication of major mental illness. In the course of the same review, a mental health nurse noted "no indication through this review of major mental illness or mood disorder". There is no history of admission to psychiatric in-patient units. The same notes indicate Mr Archer has a historical diagnosis of schizophrenia or schizoaffective disorder. At the sentencing hearing, Senior Counsel corrected this; there has been no "formal diagnosis" of schizophrenia. [21] There are references in the notes that during the period of remand for the current charge, Mr Archer presented with (or perhaps more correctly, reported) anxiety, auditory hallucinations and paranoia.
6. Mr Archer was assessed by Dr Dayalan for the purposes of determining his fitness to stand trial on 7 September 2020. Dr Dayalan qualified his opinions on the basis that no health records were provided to accompany the review and it proceeded entirely on Mr Archer's account of symptoms. Dr Dayalan provided a diagnosis of panic and substance abuse disorders and said a diagnosis of schizophrenia could be considered as a possibility. However, he also noted that Mr Archer's persecutory beliefs were not firmly held and that the reported hallucinations may be the result of illicit substance use and personality vulnerabilities. The notes disclose a history of pharmacotherapy, including antipsychotic medication, which may have been effective at times. The reliance on Mr Archer as the author of this history, combined with the lack of evidence of regular mental health treatment prior to the offending, complicates the task of reaching any firm conclusions relating to his mental health and its relevance to the sentencing proceedings.
7. I have also considered the report of Dr Seidler but, again, it is difficult to act on opinions that are so heavily based on the history provided by Mr Archer.
8. The evidence does not establish on balance that Mr Archer was suffering from any mental illness, psychological condition or cognitive impairment that reduces the objective criminality of this offence, or that absolves him from the substantial moral culpability involved in taking Mr Bradshaw's life because he was angry about losing a computer, or that reduces the weight to be afforded to both personal and general deterrence. On the other hand, I do accept that his conditions of incarceration are unusually onerous and that finding arises from the matters I now turn to discuss.

Onerous conditions of custody

1. I accept that Mr Archer suffers from a number of medical conditions and that these make his conditions of incarceration more onerous. The conditions and ailments are set out in various medical reports and include: 1. Ulcerative Colitis for which he takes a daily steroid based medication. 2. Osteoporosis and Rheumatoid Arthritis as a result of the medication treatment for Ulcerative Colitis. 3. Gastro-oesophageal reflux disorder. 4. Ongoing pain in various parts of his body which limit his movements. 5. Minor head injuries and neurocognitive concerns (e.g. memory deficits, word finding difficulties and impaired verbal expression). 6. Sciatica. 7. Anxiety, panic attacks and nightmares. 8. Auditory hallucinations and compulsive urges. 9. Periods of depression and history of suicidal thoughts. 10. Insomnia.
2. While some of these conditions are essentially self-diagnosed or dependant on a history that emanates from Mr Archer, it is clear that he has a number of established conditions that have made, and will continue to make, Mr Archer's time in custody more onerous than it would for somebody not suffering from similar disabilities.
3. Similarly, I accept that Mr Archer's period of incarceration to this point has been more onerous as a result of the stringent protocols introduced by Corrective Services in order to protect inmates and staff from the spread of the COVID-19 virus. The measures have been discussed in other cases, but it means that prisoners spend far more time in isolation and lockdown and that they have very limited visits. There are documented cases of inmates suffering psychological trauma both as a result of those restrictions and also the general worry arising from the possible spread of COVID-19 within the prison system.
4. The combination of those matters satisfy me that the offender's conditions of incarceration are more onerous and that is a matter that impacts on an assessment of the appropriate total sentence and, more particularly, on the appropriate length of the non-parole period.

Section 22A: Facilitation of the course of justice.

1. Senior Counsel for the offender submitted that the offender should receive some benefit pursuant to section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for his efficient running of the trial and the facilitation of the course of justice. The trial was run efficiently, and two statements of agreed facts were tendered, alleviating the need to call various witnesses. I estimate that something in the order of two to four days of court time was saved. I am satisfied that this is a matter warranting leniency in the form of a discernible "discount" from the sentence that would otherwise be imposed. [22] The facilitation was not in the same category as cases such as R v Spinks and R v Brooks where I allowed discounts of 5%. [23] I propose to reduce Mr Archer's sentence by 2.5%

The competing purposes of sentencing

1. In accordance with s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), I have taken into account the objectives of punishment and purposes of sentencing.
2. The sentence I will shortly impose ensures that the offender is adequately punished for the offence, that his conduct is denounced and that he is made accountable. The sentence is calculated to prevent crime by deterring the offender and others from committing similar offences. The structure of the sentence represents an attempt to mitigate the severity of the sentence with a view to promoting the offender's rehabilitation. The offender's criminal history has been recognised as a factor which lends greater weight to the need for retribution, personal deterrence and the protection of the community in this case. [24] I also recognise the harm done to the victims of the crime and do what can be done to vindicate the dignity of Mr Bradshaw.

Sentence and orders

1. Based on those findings, synthesising those factors, and applying the purposes of punishment and relevant sentencing principles, a total sentence of 20 years is appropriate. This will be reduced by 2.5% for the facilitation of the course of justice. The total sentence will be 19½ years.
2. I will find special circumstances under s 44 of the Crimes (Sentencing Procedure) Act based on the offender's health issues and the difficulties currently being experienced by inmates as a result of the COVID-19 pandemic. The offender's past compliance when placed on conditional liberty is also a matter that militates in favour of a lengthy period on parole. The adjustment I am making to the non-parole period is not great as a matter of percentage or proportion, but, subject to the decisions of the Parole Authorities, it should result in a reduction of about 1½ years from the minimum period that Mr Archer would otherwise be required to serve in custody. The non-parole period will be 13½ years.
3. Accordingly, the orders I make are the following: 1. Richard Archer, for the murder of David Bradshaw, you are convicted and sentenced to a non-parole period of 13 years and 6 months commencing on 16 February 2020 and expiring on 15 August 2033. 2. There will be a balance of term of 6 years expiring on 15 August 2039. 3. You will eligible for release on parole at the expiration of the non-parole period, I recommend that you be released on that date, if you remain of good behaviour whilst in custody. 4. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I am required to warn you that the Act applies to the offence of murder and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Endnotes

1. R v Hines (No 3) [2014] NSWSC 1273 at [77]-[85] (Hamill J), R v Halloun [2014] NSWSC 1705 at [46] (McCallum J), R v Do (No. 4) [2015] NSWSC 512 at [50] (Davies J), R v Johnson [2015] NSWSC 31 at [54]-[55] (Hamill J). See also R v Sumpton (No. 4) [2015] NSWSC 684 at [40]-[43] (Hamill J) upheld in Sumpton v R [2016] NSWCCA 162 at [153]-[156] and applied in R v Ruttley (No 7) [2017] NSWSC 1582 at [87].
2. Trial Tcpt, 28/05/21, p 212.
3. See for example Apps v R [2006] NSWCCA 290 at [49] and Versluys v R [2014] NSWCCA 98 at [19].
4. Trial Tcpt, 28 May 2021, p 215.
5. Trial Tcpt, 28 May 2021, pp 211, 217.
6. Trial Tcpt, 28 May 2021, p 216.
7. Trial Tcpt, 28 May 2021, p 217.
8. Apps v R [2006] NSWCCA 290 at [49], Versluys v R [2014] NSWCCA 98 at [19].
9. POS, 28 October 21, p 8.
10. Evidence Act 1995, s 4(2).
11. Trial Tcpt, 31 May 21, pp 320-321.
12. Crimes (Sentencing Procedure) Act 1999, s 54A.
13. MFI S-2, paragraph [26].
14. MFI S-1, paragraph [34] read with transcript of proceedings on sentence (28/10/21), pp 21-22.
15. Ghamraoui v R [2009] NSWCCA 111 at [23].
16. Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 4.
17. Higgins v R [2020] NSWCCA 169 at [83], R v M.A.K; R v M.S.K. [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [51], Adegoke v R [2013] NSWCCA 193 at [34], R v Wood [2014] NSWCCA 184 at [78]-[79], Van Der Baan v R [2012] NSWCCA 5 at [30].
18. Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 (Mason CJ, Brennan, Dawson, Toohey JJ), Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354 (Mason CJ, Deane, Dawson, Toohey and McHugh JJ), R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15] and [30] (Spigelman CJ), Van Der Baan v R [2012] NSWCCA 5 at [30] (Hall J), Adegoke v R [2013] NSWCCA 193 at [34]-[35] (Fullerton J).
19. [2012] NSWCCA 285 at [88].
20. Trial Tcpt, 1/6/21 pp 349-350; Trial Tcpt, 2/6/21 pp 417-418, 422.
21. Trial Tcpt, 28/10/21, 18.23-26.
22. Droudis v R [2020] NSWCCA 322 at [104]-[105] and Khudadadi v R [2021] NSWCCA 259 at [26]-[33].
23. Cf R v Brooks (No.5) [2017] NSWSC 824 at [58]-[61], [78] and R v Spinks [2021] NSWSC 649 at [74] - [76].
24. R v Wood [2014] NSWCCA 184 at [78]-[79]. 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: 18 November 2021