R v Bagnato

Supreme Court of NSW|2024-10-18|Before: Cavanagh J, Mason CJ, Toohey JJ

JUDGMENT

On 11 August 2014, Bradley Dillon ("the deceased") was murdered in a Leichhardt underground carpark by Antonio Bagnato ("the offender") and his first cousin, Diego Carbone ("the co-offender"). The deceased died as a result of multiple gunshot and sharp force wounds of the thorax. In other words, he was both stabbed and shot.
The offender has been charged with his murder. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The maximum penalty for murder is life imprisonment (s 19A of the Crimes Act) and the offence carries a standard non-parole period of 20 years imprisonment (s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW)).
The maximum penalty and standard non-parole period serve as legislative guideposts when determining the sentence to be imposed on the offender (Muldrock v The Queen (2011) 244 CLR 120 at [27]).
The offender entered a plea of guilty to the offence on 14 December 2023 at the Downing Centre Local Court and later adhered to that plea in this Court on 1 March 2024.
The co-offender has already been sentenced in respect of the murder of the deceased (see R v Carbone [2018] NSWSC 331).
It is agreed that the offender and the co-offender were participants in a joint criminal enterprise and the offender is to be sentenced on that basis. However, whilst the sentence imposed on the co-offender is relevant having regard to the important issue of parity in sentencing between offenders, I am sentencing on the basis of the agreed facts in these proceedings and having regard to my findings as to objective seriousness and the offender's subjective circumstances.
Any offender must be sentenced for the crime he committed having regard to matters objective to the offender as well as his or her personal circumstances.
The purposes of criminal punishment include the protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. As the High Court observed in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ, those purposes overlap and none can be considered in isolation when determining what would be an appropriate sentence in a particular case.

The deceased

The deceased was 25 at the time of his death. He was in a relationship with Nadine Dillon and had two children. He operated a café in Balmain. As I will explain, prior to his death he became involved in a conflict or dispute which he did not start but which escalated and led to his death.
I received Victim Impact Statements both in writing and orally from the deceased's mother, Kerrie Thompson, his sisters, Cassie, Kylie and Kellie Dillon, as well as his partner Nadine Dillon. They were moving and heartfelt statements. They were expressed with determination and courage.
I expressed my sympathy to members of the deceased's family at the time of the sentence hearing and I do so again in this judgment. I will have regard to the Victim Impact Statements as an aspect of the harm done to the community by the conduct of the offender to the extent permissible by law.

Circumstances of the offending

The parties rely on agreed facts. No additional evidence was adduced on the sentence hearing as to the facts and circumstances of the offending.
Not all of the relevant facts have been agreed. There is some dispute remaining as to matters such as the particular role of the offender, the level of planning involved and precisely what happened in the underground carpark at the time of the death of the deceased. It is important to observe that, whilst I may make findings of fact favourable to the offender on the balance of probabilities, I must not make any findings of fact adverse to the offender unless I am satisfied beyond a reasonable doubt of those facts (see R v Olbrich (1999) 199 CLR 270 at [27] per Gleeson CJ, Gaudron, Hayne and Callinan JJ).
The death of the deceased was the culmination of a dispute over money. In 2014, the offender and the co-offender were members of the St Michaels Fight Club which operated out of a gym at Petersham. They ran competition fight nights.
The deceased's sister, Cassie Dillon, was in a relationship with Adrian Riccio. In July 2014, Mr Riccio obtained a loan from Ms Dillon so he could attend a rehabilitation facility in Queensland. The total amount loaned to Mr Riccio was $1300. Ms Dillon had borrowed $700 of that sum from a friend to give to Mr Riccio.
After loaning the amount to Mr Riccio, Ms Dillon attempted to obtain repayment of the loan as well as a further amount of $1000 which someone known to Mr Riccio had allegedly stolen from her handbag in August 2014.
On 5 August 2014, someone known to Mr Riccio provided Ms Dillon with an envelope with a label of $2050 on it. The envelope did not contain the money. It only contained $50. There followed an escalation of the issue between Mr Riccio and Ms Dillon, with threats being made by Mr Riccio and Ms Dillon responding suggesting that she might have to tell her brother about it.
The deceased became involved after Ms Dillon told her cousin, Steven Lord, about what was going on. Mr Lord contacted the deceased and arranged a meeting between the deceased and Ms Dillon at a café. Ms Dillon told the deceased about the money owed to her and showed him the text messages she had received. The deceased then entered the phone numbers of Mr Riccio and his associates into his phone.
Although Ms Dillon did not have the offender's phone number, she did have a phone number for another person who was thought to have contact with the offender. The deceased then called that number and had a conversation. He left the café telling Ms Dillon that he had to go to Leichardt to meet a kid and organise this. Apparently that meeting did not take place.
There followed further threats and exchange of text messages with the deceased seemingly attempting to make contact with the offender. The deceased told another member of the St Michaels Fight Club "if he wants to make threats with toys I can play with toys too". The threatening text messages and conversations continued.
The deceased continued to attempt to contact the offender. He told a friend on 9 August 2014 that he had not been able to get in contact with the offender but was meeting another person from the St Michaels Fight Club in an attempt to calm down Mr Riccio.
On the morning of 11 August 2014, the offender and the co-offender were together. At around 3:30pm the deceased was observed having a conversation in Leichardt with the co-offender. Thereafter, the offender and the co-offender were again in contact, as is established through relevant phone records.
At approximately 4:24pm a mobile phone subscribed to "Ronald Hornyak" (described as a burner phone) was activated. CCTV footage shows the co-offender entering the offender's car in the area of the loading dock at Leichardt marketplace around 4:52pm.
Between 4:56pm and 5:00pm three calls were placed from the Ronald Hornyak phone to the deceased. At 5:15pm the deceased called that phone. After visiting the TAB, he made a second call to the phone at 5:16pm. Further calls were made to that phone over the next few minutes.
As is apparent from the death of the deceased, he and the offenders then attended the Leichardt marketplace car park where the killing took place.
At around 5:35pm a witness who was walking past the underground carpark of Leichardt marketplace could hear a man mumbling in a feeble, timid and scared manner. Another witness observed two men running along George Street away from Leichardt marketplace.
At 5:36pm the offender's car was captured driving away from the area. The deceased was captured by CCTV footage leaving the carpark at 5:37pm and lying on a grass verge. Emergency services attended. Sadly, the deceased died at the scene.
Crime scene examination revealed blood stains in the carpark. Ballistics evidence recovered five 9mm Luger cartridge cases and located a number of impact and ricochet marks throughout the carpark.
On post-mortem examination, the deceased was found to have suffered: 1. a gunshot wound to the chest, travelling from back to front; 2. a gunshot wound to the abdomen, travelling from back to front; 3. a gunshot wound to the left foot; 4. a 14mm long sharp forced injury in the back; 5. a 21mm long stab wound on the right side of the upper back; 6. a 14mm long stab wound in the mid back; and 7. a 13mm stab wound in the mid back.
The offender has pleaded guilty to the murder of the deceased. Plainly the deceased was killed in the Leichardt marketplace carpark shortly before 5:36pm on 11 August 2014. He was both shot and stabbed a number of times.
The offender is to be sentenced on the basis that he was a participant in a joint criminal enterprise. This means that the offender agreed to participate with the co-offender in the commission of a crime against the deceased. However, the offender is not being sentenced on the basis that he agreed to kill the deceased (as it is not known whether the offender stabbed or shot the deceased, and he does not accept that he did).
The offender is being sentenced on the basis that he agreed to participate in a joint criminal enterprise to inflict grievous bodily harm on the deceased. The offence of murder may be committed when an offender intends only to commit grievous bodily harm on a person but that person dies as a result of the infliction of that grievous bodily harm.
Whilst the offender has not admitted precisely what occurred in the carpark, he admits that: 1. No person other than him, Diego Carbone and the deceased were in the carpark when the injuries were inflicted on the deceased. 2. Before entering the carpark, the offender and Diego Carbone had agreed to inflict grievous bodily harm on the deceased. 3. Before entering the carpark, the offender knew that there was a firearm and a knife present and at least one of those weapons could be used as part of the joint criminal enterprise to inflict grievous bodily harm. 4. The deceased was first stabbed and then shot as he was trying to leave the carpark.
Why the offenders determined to at least inflict serious injury on the deceased at that time is not known. I mean by this that why the offenders thought that the deceased should be subject to such punishment because of his earlier conduct is difficult to understand in any rational way.

Objective seriousness

It is accepted by the offender that the murder was objectively serious. It is also accepted that the offence involved the actual use of two weapons and that it involved a high level of violence and was committed in company.
The Crown points to the manner of death as being particularly significant in that the deceased died as a consequence of multiple gunshot and sharp force wounds to the thorax. He was shot in the back as he was attempting to flee. Further, the sharp force injuries all entered from the back which is suggestive of a struggle. Although he was both shot and stabbed in the back, he did not die immediately but managed to exit the underground car park before collapsing on the grass verge.
The offender agrees that there must have been a physical struggle between at least the co-offender and the deceased during which the deceased was stabbed. Again, however, there is no agreement that he was actually involved in the struggle.
There are thus a number of aggravating factors, including: 1. The offence involved the actual use of a weapon - s 21A(2)(c) Crimes (Sentencing Procedure) Act. 2. The offence was committed in company - s 21A(2)(e) Crimes (Sentencing Procedure) Act. 3. The offence was committed without regard to public safety - s 21A(2)(i) Crimes (Sentencing Procedure) Act. The deceased was murdered in late afternoon in the car park of a suburban shopping centre. Shots were fired. It was plainly foreseeable that members of the public may be in the area and could have been exposed to danger.
There are two matters of fact which may weigh on the sentence imposed and which remain in dispute being: 1. the degree of planning; and 2. the actual conduct of the offender and his role.
The offender submits that the planning was not so significant as to constitute an aggravating feature. The Crown submits that the offence involved significant planning. In particular, the Crown relies on the use of the burner phone in the name of Ronald Hornyak. The Crown submits that the use of the burner phone in the immediate period prior to the killing of the deceased is suggestive of a significant level of planning, particularly by the offender.
The offender points out that the use of the phone appears to have been opportunistic. The phone was actually first activated on 22 July 2014 and then not used until 3 August 2014. As such it could not be that the burner phone was obtained as part of the planning of the murder of the deceased.
I accept that submission in the sense that the Crown has not established the existence of a further aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act but it does not seem to me that a finding either way weighs heavily on the sentence imposed.
By this I mean that there are a number of other aggravating factors and that even though there was not significant planning, the killing of the deceased was not simply opportunistic or random. The deceased was lured to the car park by the co-offenders. It was their intention to inflict grievous bodily harm on him.
As far as the role of the offender in the death of the deceased is concerned, I accept that it cannot be concluded from the agreed facts that the stab wounds were delivered whilst the deceased was being held in a chokehold by the co-offender. Further, whilst the deceased sustained a number of stab wounds, it does not necessarily follow that they were done with a substantial degree of force. I am mindful of my obligation not to make adverse findings against the offender unless they are established beyond a reasonable doubt.
The offender submits that there are three pieces of evidence which might suggest that the co-offender played a greater role than that of the offender, including that: 1. most of the communications in the period leading up to the death of the deceased were between the co-offender and the deceased; 2. the events in the car park unfolded after the co-offender had met the deceased at the panel beating shop; and 3. there is an available inference the co-offender was involved in the physical struggle with the deceased.
I am uncertain of the basis of that latter inference but I accept the first two matters of fact. Yet those matters do not appear to me to be particularly significant. In the absence of any basis for finding that one or other of the offenders was the shooter or who did the stabbing and, indeed, which of the offenders was involved in the struggle with the deceased, I am unable to distinguish between the offender and the co-offender in terms of their overall role, based on the evidence presented in these proceedings
Certainly, the burner phone appears to have been used by the offender but that is not a phone which was purchased for the purposes of this event. It had previously been owned by the offender. I am unable to make any finding as to whether the offender or the co-offender might have been the organiser or the driver of the events which unfolded in the car park. I am really unable to distinguish their roles. They were both involved in meeting or messaging the deceased in the hours before he was killed. They were both present and in some way active in the events which led to him being killed. I am unable to find that one played a greater role than the other.
The Crown urges a finding that the offending was above the mid-range of objective seriousness. The offender submits that it falls below the mid-level of objective seriousness. I do not accept that the offending falls below the mid-level of objective seriousness, having regard to all the matters to which I have already referred. Yet it must again be emphasised that the offender is being sentenced not on the basis that he had an intent to kill the deceased but on the basis that his intent was to inflict grievous bodily harm. Further, it has not been established that the offender actually shot or stabbed the deceased. In the circumstances, I consider that the offending falls in the mid-range of objective seriousness.

Events subsequent to the murder of the deceased

Two days after the murder of the deceased, the offender fled to Thailand. His co-offender also sought to flee to Thailand two weeks later but he was arrested. On 5 September 2014, the offender cancelled his return flight to Sydney. He remained in Thailand.
On 7 December 2015, he was arrested in Cambodia, apparently having left Thailand to go to Cambodia after the death of a person in Thailand.
As he says in his statement to the Court, he then commenced the most horrendous period of his life.
He remained in custody in Pattaya from 7 December 2015 to 7 February 2017 in very difficult conditions. He was placed in a cell with 150 inmates squashed like sardines. The cell would run out of water and the toilet would smell badly. He would go without a shower for days. His food would be covered in flies and maggots. He was subject to torture.
He was eventually convicted and sentenced to death. From 7 February 2017 to 7 December 2018 he was housed in Bangkwan Prison. He remained on death row from 7 February 2017 to 10 April 2018. He suffered continual stress and the conditions on death row were extremely difficult.
His appeal in Thailand was successful and his sentence was reduced. He was due to be released on 7 December 2018. He was then hopeful of being then deported back to Australia. However, he was rearrested and charged with firearms offences. He remained in custody in Thailand. He was finally extradited back to Australia on 22 July 2022. He first entered custody in New South Wales on 23 July 2022.
Whilst the offender's experiences in Thailand must have been extremely onerous, stressful and frightening, he went there of his own volition. He left the country because he had killed the deceased. I do not accept that he went to Thailand for the purposes of pursuing his Muay Thai career, although I accept that he did that in Thailand.
He became involved in events leading to the death of a man in Thailand. Again, being sentenced to death and waiting on death row for that extended period until that conviction was overturned and he was sentenced in respect of other offences must have been extremely difficult . However, that which happened to him in Thailand (leaving aside his initial wrongful conviction) was of his own making. Subject to the matters I will now comment on, he is not entitled to any reduction in sentence or credit for time served in Thailand.
The offender submits that just when he was about to be released on 7 December 2018, the Australian government made a further extradition request (the initial one having been made on 16 March 2016). According to correspondence annexed to his solicitor's affidavit, the Australian authorities were considering the prospect that the offender might be released in the event that his appeal in Thailand was successful. There is an email from Australian authorities seeking the assistance of Thai authorities in securing his arrest and remand pending a decision on extradition. There is an email from an Australian Federal Police officer to a New South Wales police officer recording: "[T]o avoid the issue of Bagnato being released this week the Royal Thai Police have dug up an old Court of Royal Thai Army warrant for Bagnato … which was issued in December 2015".
The email also states that the minimum sentence for the charge is three years which should be enough time for the Supreme Court to deliver its judgment.
The offender says that prior to the involvement of the Australian authorities, he had been told that he would be released on 7 December 2018. The Thai authorities had informed Australian authorities that they would not hold the offender in custody pending the prosecutor's appeal and that he would be released.
The offender submits that his continued incarceration in Thailand was in part due to the intervention of Australian authorities in ensuring that he remained in custody. The offender submits that the Court should also have regard to the fact the offender has spent almost 9 years in custody to date and that should be taken into account in the application of totality to the sentence to be passed upon him.
In this respect, the offender relies upon the decision in Mill v The Queen (1988) 166 CLR 59 at 66 where the High Court unanimously held that if an offender has served a period in custody outside of the jurisdiction for an offence of a similar nature committed at about the same time, the Court may, if appropriate, have regard to that period spent in custody as part of the application of the principle of totality.
In his written submissions, the offender submits that any sentence imposed upon him should be backdated to 7 December 2018.
However, in oral submissions, the offender moved back from that submission. Rather, it was submitted that I had a discretion to have regard to the time in custody in Thailand and that there should be some allowance made for that period in custody. It was submitted that, if the Australian authorities had not intervened, the offender would have been deported to Australia in December 2018, charged at that time and he would be in a very different position than he is now.
I accept that the correspondence tends to suggest that: 1. the Thai authorities were not intending to keep the offender in custody after 7 December 2018, despite the prosecutor pursuing an appeal; 2. the additional charges followed on the intervention of the Australian authorities; and 3. the appeal judgment of the Supreme Court in Thailand (the prosecutor's further appeal in respect of his sentence) was handed down on 3 January 2020, such that any time spent in prison after that date is referable to his criminal offending in Thailand (excluding the period from 25 March 2022 to 22 July 2022 when the offender was taken into extradition custody).
In my view, the offender is entitled to some allowance for time served in Thailand but only 13 months being the time between him being kept in custody after 7 December 2018 and the Appeal Court judgment in January 2020. I will have regard to that in fixing the commencement date for sentence.

Subjective circumstances

On sentence the offender relies on the following material: 1. his letter to the Court dated 7 October 2024; 2. forensic psychology report of Anita Duffy dated 4 September 2024; 3. affidavit of Michael Blair, solicitor, dated 3 October 2024; 4. affidavit of Rosa Zullo dated 4 October 2024; and 5. a number of references including prison references and certificates which the offender has obtained in prison.
My findings as to the offender's pre-offending circumstances are taken from the offender's letter to the Court, the history provided to the psychologist and the evidence given by his sister, Rosa Zullo.
The offender is currently 35. He was 25 at the time of the offence. At the time of the offending, he had been in a relationship with his partner for seven years and had a child.
Prior to the commission of this offence, the offender had no criminal history in New South Wales. I take that into account as a mitigating factor (s 21A(3)(e) of the Crimes (Sentencing Procedure) Act).
The offender grew up in Sydney with his parents and two siblings. He describes his father as an old school Italian man who disciplined him harshly as a child. He was hit with a belt or fist and he often had black eyes or a bloodied nose. He says that, of all the siblings, he was targeted most by his father. This is supported by his sister who says that the offender was always in trouble with his father. He felt he was picked on and not loved. The offender says he grew up scared of his father and left home at the age of 14 to get away from the beatings.
He says his family concealed the fact that he left home as it was customary for the children to remain at home until they were married. Yet, although he says he left home and was treated harshly by his father, during his teens and early 20s he worked with his father and their relationship improved to some extent.
He had learning difficulties at school. Although he was never diagnosed with ADHD, his psychologist supports that diagnosis. Despite his learning difficulties, he completed the high school certificate. Thereafter, he commenced an apprenticeship as a Chef and attended TAFE. He bought a meat business at the age of 21, before his friend and his brother took over the operation of that business.
He was a regular gym attendee and was pursuing a boxing career. He was a member of the St Michaels Fight Club and became a co-owner of a nightclub in Oxford Street approximately six months before the offence. He was very keen on Muay Thai and was an active participant in that sport both in Sydney and later in Thailand.
He says that he has always had trouble sleeping and suffered from depression and suicidal intent in his teens. He was prescribed medication for acne and suffered significant side-effects. He said he took an overdose of his tablets on several occasions. He felt that he was always a skinny kid but training in the gym changed that.
He maintains that he has been adversely affected by the harsh punishments given to him by his father during his formative years. He now recognises it as a form of physical and emotional abuse which affected his subsequent behaviour. He says he started using drugs in his teens, using cocaine and ice at the age of 15. He continued using drugs until he was around 18.
Ms Duffy interviewed and assessed him on 17 June and 2 July 2024 via AVL whilst he remained in Silverwater in the Metropolitan Remand and Reception Centre. She says that he now suffers from severe depression and anxiety. Based on her testing, he satisfies the requirements for a diagnosis of ADHD, which she suggests has remained undiagnosed for some time. He also suffers from PTSD which is likely to be a response to his time in Thailand.
The offender submits that these matters impact on the offender's moral culpability for the offence.
The difficulty with that submission is that there is evidence that despite his childhood difficulties, he had reconnected with his father and had been in full-time employment and developing businesses from quite a young age. His ADHD and learning difficulties do not appear to have impacted upon his ability to pursue business interests even from a young age. His PTSD plainly stems from that which happened to him in Thailand.
I do not accept that the offender's psychological status at the time of the offending was such that it should impact upon his moral culpability (see Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1). I do not accept a causal connection between any psychological condition and the offending conduct.
The offender also relies on his traumatic and violent childhood as matters impacting on the sentence in accordance with Bugmy v The Queen (2013) 249 CLR 571 ("Bugmy"). It is not necessary for the offender to establish any causal connection between the Bugmy factors and the offending (Lloyd v R [2022] NSWCCA 18 at [27] per McCallum JA, Hamill and Cavanagh JJ agreeing), but the extent to which his traumatic childhood impacts on the sentence remains a matter of individual assessment.
The offender did not suffer childhood deprivation as that term might be generally understood. He had a good education and came from a generally supportive family but he was subject to violence at the hands of his father. I recognise this as providing some explanation but not justification for his subsequent violent behaviour. In that sense I have regard to his traumatic childhood as a factor for which he is entitled to some leniency but only to a limited extent.

Remorse

The offender submits that he has demonstrated remorse.
The Crown submits that the offender's post offence conduct can bear upon the assessment of remorse and contrition and his prospects of rehabilitation (see R v Wilkinson (No 5) [2009] NSWSC 432 at [62] per Johnson J) and that the offender's flight to Thailand and his subsequent conduct is indicative of a lack of remorse and contrition. His flight is not an aggravating feature but this conduct does need to be considered when assessing remorse and prospects of rehabilitation.
The offender relies on his letter to the Court and the expressions of remorse contained in the report of Ms Duffy, his psychologist. He opens his letter by saying how he is sorry and takes full responsibility for his part in the death of the deceased and every day he wishes it never happened. No doubt there are many reasons for that wish. Much of his statement is directed to what has happened to him and what happened to him prior to the offending. However, he also makes reference to the Victim Impact Statements, again, expressing some hope that the family of the deceased might at some stage forgive him.
I accept that he is remorseful but any finding of remorse must be tempered by the fact that he fled to Thailand and spent some years avoiding arrest and has come rather late to the idea of remorse and contrition.

Prospects of rehabilitation

I am more positive about his prospects of rehabilitation for a number of reasons. Firstly, I am in receipt of material from his time in custody in Australia which tends to suggest that he is making positive steps towards rehabilitation including undertaking a number of courses.
I also have regard to the opinion of Ms Duffy to the effect that he expresses strong interest and motivation for treatment. I accept that his time in custody in Thailand has had a significant impact upon him. It would be hard to overstate the difficulties he experienced in Thailand. I do not mention this to suggest that he should get some form of benefit or credit because of his hardship in Thailand, but it is only that the material I have seen tends to suggest that his time in Thailand has had a significant impact upon him. I also have regard to the prison and other references provided on behalf of the offender. His behaviour in prison in New South Wales and the absence of any criminal history prior to committing this offence are other factors which suggest that he has good prospects of rehabilitation. I thus accept that his prospects of rehabilitation are good.

Deterrence

I am satisfied that the sentence must reflect both the need for general deterrence and specific deterrence (but both to a lesser extent than might otherwise be the case). As I have already indicated, the very arduous conditions to which the offender was exposed in the years since the offending perhaps detract from the need for specific deterrence.

Difficulties in custody

I accept that the offender suffers from PTSD and that will make his period in custody more onerous. Whilst it must be that his period in custody in Australia will be less onerous than that in Thailand, I am assessing whether his period in custody will be more onerous compared to other prisoners serving sentences in Australia. His ongoing PTSD will surely make it so. He suffers from flashbacks, nightmares, and an inability to sleep. Hypervigilance is a common symptom of PTSD. All of these symptoms will make his time in custody more difficult.

Delay

The offender asks that the lengthy delay between the crime and these proceedings should be taken into account to his benefit.
In R v Blanco (1999) 106 A Crim R 303, Wood CJ at CL (Bell and Smart AJ agreeing) held at [16]: "The reason why delay is to be taken into account when sentencing an offender relates first to the fact of the uncertain suspense in which a person may be left; secondly to any demonstrated progress of the offender towards rehabilitation during the intervening period; and thirdly, to the fact that a sentence for a stale crime does call for a measure of understanding and flexibility of approach: see, in addition to Todd and Mill, the decisions in Harrison (1990) 48 A Crim R 197 at 198-199 and King (1998) 99 A Crim R 288."
Plainly the delay between the commission of the offence and the sentencing (10 years) is caused by the offender's own conduct in fleeing the jurisdiction and then becoming involved in criminal conduct in Thailand.
He has pleaded guilty on his return but the delay in the bringing of the charge has not led to the offender being kept in a state of suspense. He must be taken to have known what he did and known that on his return to Australia he would be charged. In my view, the delay is of his own making and is not a factor to which weight should be given in assessing the sentence.

Parity with the co-offender

An important principle in sentencing the offender is that there should be some level of parity with the co-offender. There were only two persons involved in the joint criminal enterprise. Both were there at the scene at the time that the shots were fired, and the deceased was stabbed. Both were sentenced on the basis not that they formed an intention to kill but they intended to inflict grievous bodily harm. Having said that, on sentence of the co-offender, Garling J was satisfied that the co-offender played a lesser role to that of the offender.
Consistency in sentencing and equal justice requires that like offenders should be treated in a like manner (Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [28] per French CJ, Crennan and Kiefel JJ ("Green")). However, different degrees of culpability and different circumstances permit some variation in sentencing despite the parity principle (Green at [28]; Postiglione v The Queen (1997) 189 CLR 295 at 301).
It is important to note that these proceedings are different to those of the co-offender. The co-offender was sentenced following a trial. He did not plead guilty. The findings on sentence were made based on the evidence at trial.
The offender has pleaded guilty. He pleads guilty based on agreed facts. Those agreed facts do not include any admission by him that he shot or stabbed the deceased. The co-offender was also sentenced on the basis that he did not shoot the deceased but it was the offender who shot the deceased.
The co-offender was sentenced on the basis of the greater role of the offender in the planning, including the bringing of the pistol to the scene of the murder. The agreed facts do not include any agreement as to those matters.
I am thus sentencing the offender on a slightly different basis to that of the co-offender. Further, the offender receives a 25% discount for his plea of guilty. The co-offender did not receive any such discount because he did not plead guilty. Additionally, there are some differences between their subjective cases, albeit the differences might be slight.
It is only necessary to say that I have regard to the importance of parity in sentencing the offender but the basis on which the offender is being sentenced is not identical to the basis on which the co-offender was sentenced.

Discount for plea

The offender entered a plea to murder in the Local Court at the earliest opportunity. He is entitled to a 25% discount by virtue of that plea.

Comparable cases

The Crown relies on a number of said to be comparable cases: 1. R v Botrus (No 6) [2021] NSWSC 199 2. R v Safarjalani (No 2) [2019] NSWSC 105 3. R v Kearns (No 2) [2013] NSWSC 1652 4. R v Willmott [2012] NSWSC 824 5. R v Hazairin Iskandar [2012] NSWSC 1324
It is not necessary that I comment on those cases. The cases relied upon by the Crown fall within a broad range of circumstances and a range of total sentences between 20 and 30 years. All the cases involve different subjective circumstances.

Special circumstances

The offender submits that the Court should find special circumstances which justify a departure from the standard non-parole period. The offender points to the lengthy period of time he has spent in custody in Thailand, that time spent in custody will be more onerous for him than other prisoners and the need for a substantial period of supervision on parole to facilitate his reintegration into the community. Whilst the Crown acknowledged that it would be open to the Court to find special circumstances, the Crown's position was that I should nonetheless not do so given the need to denounce the offender's conduct and impose a sentence that reflects the gravity of the offence and the offender's moral culpability.
However, I am satisfied that in circumstances where the offender has already been in custody for a long period and having regard to the opinion of his psychologist, Ms Duffy, he will need a slightly longer period on parole for the purposes of assisting his rehabilitation and re-integration into the community.

Sentence

The sentence I would have imposed but for the 25% discount is 23 years. I have regard to my finding of special circumstances in fixing a slightly longer period on parole.
Anthony Bagnato, for the offence of murder, I impose a sentence of imprisonment consisting of a non-parole period of 12 years with a balance of term of 5 years and 3 months.
The offender was taken into custody in NSW respect of this matter on 22 July 2022. The Crown accepts that the sentence should commence from when the offender was taken into Thai custody solely pending extradition, that date being 25 March 2022. Ordinarily, the sentence would commence on that date. As I have already indicated, I am satisfied that the offender was in prison in Thailand for an additional 13 months having regard to the role of the Australian authorities in ensuring that he was not released. For the purposes of fixing the term of the sentence, the sentence will thus be backdated to 25 February 2021.
The offender will be first eligible for parole on 24 February 2033. His total sentence will expire on 24 May 2038.
As the offender is convicted of a serious violence offence, it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence of murder. I ask the offender's solicitor to undertake that task on the Court's behalf. 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: 23 December 2024

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