R v Campbell

Common Law Principles

1. A sentencing judge has a broad sentencing discretion to ensure that all of the circumstances of the offence and the Offender are taken into account: R v Whyte (2002) 55 NSWLR 252 at [147]. Over time, the Courts through decided cases have developed legal principles which continue to have relevance to guide the exercise of the sentencing discretion: Muldrock at [18]. These principles include totality and proportionality.
2. The sentencing judge must also take into account factors that the common law has established as being relevant to sentence, such as: 1. whether incarceration has been or may be particularly burdensome: Muldrock at [19]; 2. whether the Offender was aware that his use of drugs might lead to an act of violence: R v Gagalowicz [2005] NSWCCA 452 at [36]; and 3. whether an Offender's upbringing is one of profound deprivation: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
3. The sentencing discretion requires a Judge to have regard to the relevant legislation, including the purposes of sentencing, the statutory guideposts of the maximum penalty and the standard non-parole period, the aggravating and mitigating factors, and the principles of the common law. Against that legal framework, the sentencing Judge has to identify the significance of all the relevant factual circumstances of the offending and the Offender. The sentencing Judge is then able to undertake an "instinctive synthesis" whereby he or she "makes a value judgment as to what is the appropriate sentence given all the factors of the case": Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock at [26].
4. As the instinctive synthesis approach to sentencing embodies a value judgment, there is no such thing as a single correct sentence. I will bear in mind the legislation by which I am bound, and the common law principles developed by the Courts, when proceeding on the task of sentencing this Offender.

Agreed Facts

1. As I have previously said, in this matter, the Offender pleaded guilty to the offences. As a result of his guilty pleas, the Offender and the Crown have agreed upon the relevant facts on sentence. It is appropriate to record the facts of the offending, which are a summary of those Agreed Facts.
2. From about 23 April 2020, which was shortly after his release from custody, the Offender lived with his girlfriend, Danielle Russell, in the Queanbeyan area. On 8 February 2021, the Offender and Ms Russell ended their relationship.
3. On 10 February 2021, the Offender contacted Mr Kouaider, whom he had known since he was a teenager. He told Mr Kouaider that he was back in the Cooma area and wanted to catch up. The Offender visited Mr Kouaider's home, where he lived with his mother. The Offender asked if he could stay the night. Until 15 February 2021, when the offences were committed, the Offender stayed at Mr Kouaider's home, sleeping on a mattress on the floor and borrowing Mr Kouaider's clothes. The Offender had with him a black Nike brand backpack.
4. Whilst staying at Mr Kouaider's home, the Offender regularly injected himself with methylamphetamine. He used needles that he obtained from the local hospital. He became focussed on obtaining methylamphetamine. On 12 February 2021, the Offender received his Centrelink payment. He withdrew all his money from his bank account. He then told Mr Kouaider that he was "off to buy meth".
5. Later that day, Mr Kouaider saw the Offender injecting himself with methylamphetamine whilst he was in the house. Mr Kouaider was unhappy with this, and he told the Offender to "… take it down to the creek". Mr Kouaider did not observe the Offender using the drug in the house again but did see him leaving to go down to the creek on a number of other occasions.
6. From 12 February 2021 onwards, Mr Kouaider observed the Offender being under the influence of drugs and becoming increasingly paranoid, including looking out of the window and saying that the cars which were driving past were looking at him.
7. On the afternoon of 14 February 2021, two friends visited Mr Kouaider's house. They brought some cannabis with them. Mr Kouaider, the Offender, and the two visitors smoked the cannabis. During this gathering, the Offender, becoming increasingly paranoid, telling the group, "everyone's watching me, it's like eyes are on me all the time". He looked out the window a number of times. He was grinding his teeth. At one point, he told one of the visitors that he had injected a higher than usual dose of methylamphetamine.
8. Soon after, the Offender's friend, Mr Robertson, and a woman joined the gathering. Mr Robertson brought his dog. Mr Kouaider considered Mr Robertson a father figure to him. Mr Robertson brought a bottle of scotch whisky with him from which he drank.
9. Between 8:09pm on the evening of 14 February 2021, and 12:35am, the Offender and his former girlfriend, Ms Russell, exchanged messages over social media. In these messages, the Offender accused Ms Russell of being unfaithful to him with Mr Robertson or Mr Kouaider.
10. During the course of these exchanges, some of the group, being the Offender, Mr Kouaider, Mr Robertson and Mr Kouaider's mother, Ms Mondolo, decided to walk to a fast-food outlet nearby. During the walk, the Offender told the group that he did not want to go to the fast-food outlet, and that he would wait for them in the nearby park. The rest of the group found that the outlet was closed, and they ended up going to a service station from which they purchased food and began to walk back home.
11. The Offender was waiting outside when the group returned home. They went back into the house together. The Offender then went back outside to inject himself with methylamphetamine. He returned and placed a needle on the TV cabinet, saying that he would clean it up later.
12. Mr Robertson went for a walk towards the creek. Mr Kouaider became worried and asked the Offender to look for him. Soon after, the Offender and Mr Robertson returned. Mr Kouaider heard the name "Danielle", mentioned in their conversation, which was a reference to the Offender's former girlfriend. Mr Robertson was heard to deny ever being with her.
13. The Offender had previously left a knife at Mr Kouaider's house. During his stay in February 2021, the Offender asked Ms Mondolo for the knife a number of times. Ms Mondolo eventually gave the Offender the knife.
14. At one point during the evening of 14 February 2021, Mr Kouaider entered his bedroom and there observed the Offender holding the knife and looking at the blade. When Mr Kouaider entered, the Offender put the knife back into its leather sheath and then into his backpack.
15. Sometime after 2:00am on 15 February 2021, Mr Robertson asked Mr Kouaider to drive him home from Cooma to Adaminaby. Mr Kouaider agreed. Mr Kouaider, Mr Robertson and his dog, and the Offender, got in the car. The Offender brought his backpack, which contained his knife.
16. The group stopped to buy petrol. They did not fill up the car but instead filled a 20-litre jerry can with petrol. They drove on but stopped again and filled up the car with petrol from the jerry can. They resumed driving to Adaminaby. The Offender asked, "is the fuel in the back for me?". Mr Kouaider ignored the comment but thought that the Offender was acting strangely. The Offender then said, "why are youse taking me out here, are you going to kill me?", and "are you going to hurt me?". Mr Kouaider queried the Offender saying: "Why would we want to hurt you?". The Offender responded "I just don't trust you. Are you taking me out to the bush to kill me?".
17. Mr Kouaider then pulled the car over after the Offender told him he had to urinate and after the Offender had tried to climb out of the car window. The Offender then left the area. After searching for him for about 10 minutes, Mr Kouaider found the Offender standing on the road. The Offender returned to the car. The Offender, who had previously been in the front passenger seat, moved to the back seat on the driver's side, and Mr Robertson moved to the front passenger seat.
18. Mr Kouaider continued driving. Mr Robertson turned on the interior car light and began looking for his bottle of scotch whisky. At this time, Mr Kouaider observed the Offender moving his tongue around the inside of his mouth, with his eyes very widely open.
19. The Offender suddenly put his window down and put his head and torso out of the window and looked into Mr Kouaider's window. This frightened Mr Kouaider, who slammed on the brakes, causing the car to skid across the dirt road and come to a stop.
20. The Offender then stabbed Mr Kouaider in the left upper arm whilst holding the knife from his backpack in his left hand. The knife went completely through Mr Kouaider's arm, exiting on the other side.
21. Mr Robertson intervened by challenging the Offender as to what he was doing. The Offender then leant into the front of the car and stabbed Mr Robertson with the knife repeatedly in the chest whilst holding the knife in his right hand. Mr Robertson tried to open his car door, screaming "You're killing me, you're killing me". Mr Robertson eventually managed to get out of the car. The Offender, who also got out of the car, ran towards Mr Robertson, who was about three metres away, obviously in distress, and continued to stab him. Mr Kouaider, who was standing in front of the car, yelled at the Offender to stop. The Offender laughed and continued to stab Mr Robertson around the upper body.
22. The Offender followed Mr Kouaider towards the car and swung the knife at him. The Offender slipped and lost his balance, and the blade made contact with the tip of Mr Kouaider's left index finger.
23. Mr Kouaider yelled at the Offender to drop the knife, and the Offender then said that he had thrown it away. Mr Robertson collapsed into the front passenger seat. Mr Kouaider told the Offender that he had killed Mr Robertson. The Offender reached into the car and started to slap Mr Robertson in the head, saying "he's faking it".
24. A verbal and physical interaction between Mr Kouaider and the Offender continued until Mr Kouaider was able to slip out of the Offender's grip. The Offender then ran off into the trees.
25. Mr Kouaider began driving back to Cooma, with Mr Robertson limp and unresponsive in the front passenger seat. He called 000 on the way, who told him to stop the car and perform CPR. He did so, but was not able to feel a pulse. He decided to continue driving to the hospital.
26. Mr Kouaider reached Cooma Hospital about 4:00am. Medical staff tried unsuccessfully to resuscitate Mr Robertson. He was unresponsive and died a little after 4:15am. He was 38 years old at the date of his death. His death was caused by the stab wounds inflicted upon him by the Offender, including three which penetrated and damaged his lungs and his liver.
27. Medical staff at Cooma Hospital also treated Mr Kouaider. He was later that day transferred to Canberra Hospital. Treating doctors assessed him as having two gaping stab wounds which included significant muscle damage, a cluster of bruises and an incised wound on the tip of the left third finger. On 17 February 2021, he underwent surgery to repair the wounds before being discharged. He was 19 years old at the date of the offences. He will have permanent and long‑lasting sequalae of these injuries including scarring.
28. Later that morning, the Offender was arrested in the vicinity of the area where the stabbing had happened. At Cooma Police Station, after appropriate formalities, the Offender initially denied the offending, saying "it didn't happen" and "I didn't kill Nicholas or wound Zane". During a forensic procedure, he told police that he had some ice the previous day.
29. Police recovered the knife used in the stabbing. It was forensically tested. The results were consistent with the blood being that of the deceased and the trace DNA from the handle originating from the Offender.

Intention

1. I am satisfied beyond reasonable doubt that the Offender intended to kill Mr Robertson because of the number and location of the stab wounds, the depth of their penetration, the fact that the attack was a persistent one, including that the Offender pursued Mr Robertson after he got out of the car and was bent over, obviously in distress. My degree of satisfaction is reinforced by the Offender's agreement contained in the signed Statement of Agreed Facts, that his intention was to kill Mr Robertson.
2. His plea of guilty to the offence of wounding Mr Kouaider includes his admission that he did so with an intention to cause grievous bodily harm to Mr Kouaider.

Objective Seriousness

1. The murder of Mr Robertson by the Offender was unprovoked and without reason being proffered by the Offender. The initial attack came without warning and from behind Mr Robertson. It was a persistent and prolonged attack involving more than 15 stab wounds. It was vicious and very violent. It was carried out by the Offender who was intending to kill Mr Robertson.
2. This vicious killing was aggravated by the fact that the Offender used a weapon, being the 20cm bladed knife which he had in his backpack: s 21A(2)(c) of the Sentencing Act.
3. I accept the Crown's submissions, with which the Offender agrees, that the objective seriousness of this murder falls in the middle of the range for offences of murder.
4. The wounding of Mr Kouaider was also without warning or reason. The initial attack was also mounted from behind Mr Kouaider. He had no chance of defending himself. There was only one stab wound which caused the grievous bodily harm. I accept the Offender's submission that the objective seriousness of this offence falls below the mid-range of objective seriousness for offences of this kind.

The Offender's Subjective Circumstances

1. The Offender was born in October 1999 and was 21 years old at the time of the offences. Today, he is 23.
2. He had a reasonably good childhood. He is eldest of the two children. He grew up in a positive and supportive family environment. He did not like school, and left after completing Year 10. Since then, he has had a limited employment history.
3. When he was 15 years old, he moved out of the family home to live with his girlfriend. At this time, he commenced drinking alcohol. He drank to excess on most days and spent most of his savings on alcohol. After his relationship broke down, he did not want to return to his parents' house and he became homeless, often couch-surfing or sleeping on the streets.
4. By the time he was 16 years old, he had commenced using methamphetamine heavily. His drug use thereafter brought him into contact with the justice system, about which it will be appropriate to provide further details.
5. Although he presented to Cooma Hospital on two occasions with suicidal ideations (the first when he was 16 and the second when he was 19 years old), he was not diagnosed with any mental illness. Rather, it was concluded that the suicidal ideations were associated with situational distress.

The Offender's Mental Health

1. As just noted, prior to him committing these offences, the Offender had not been diagnosed with any mental illness, and there was no underlying mental health impairment that contributed to his offending conduct.
2. According to Dr Kerri Eagle, a forensic psychiatrist, at the time of these offences, the Offender's behaviour was consistent with an episode of methylamphetamine-induced psychosis which was limited to the period of intoxication and withdrawal, being a period of days rather than weeks or months.
3. Although the Offender did not display or describe any signs or symptoms of an enduring psychotic illness at the time of the consultation with Dr Eagle, she concluded, based upon his history, that the Offender had a severe substance use disorder which was in remission in a controlled environment, namely, whilst he was in custody.
4. This diagnosis of substance use disorder was based upon a pathological pattern of behaviours related to the use of the illicit substance - here, methylamphetamines. The disorder is a cluster of symptoms which include that the individual continues using the illicit substance despite significant substance-related problems: Diagnostics and Statistical Manual of Mental Disorders 5th Edn 2013 p.483, ("DSM-5").
5. In considering the impact of this diagnosis of a disorder in the context of the common law principles dealing with the relevance of mental health for the purposes of sentencing - see Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177]-[178], what is of significance is not necessarily the allocation of an identified classification in DSM-5, but rather what the evidence shows about the nature, extent and effect of the mental health impairment experienced by the Offender at the relevant times.
6. Here, the only evidence is that of Dr Eagle, which does not suggest that the disorder will have the effect that a custodial sentence will weigh more heavily on this Offender. Mitigation of sentence for this reason is not appropriate.

Offender's Intoxication and Drug Use

1. As earlier noted, the Offender's drug use since he was 16 years old brought him into contact with the justice system. He was first charged shortly after his 18th birthday. He was convicted of a number of offences including one of assault and one of intimidation. He was unable to comply with the terms of a Community Supervision Order which had been imposed. He committed further offences of violence in a domestic setting and was subject to a number of Community Correction Orders.
2. During 2019, he was convicted of breaching a prohibition or restriction in an Apprehended Domestic Violence Order on three separate occasions. He was also convicted of offences of violence, including of assault occasioning actual bodily harm on two occasions. He was sentenced to imprisonment for many of these offences and was in custody from October 2019 until his release in April 2020.
3. At the time of the murder and the wounding, the Offender was subject to a 15‑month Community Correction Order. His liberty in February 2021 was conditional upon compliance with that order.
4. Although I have set out this history in some detail, I am not imposing a sentence on the Offender for his conduct in committing these offences in the past. He has already been punished for that past conduct. However, the records which relate to his past offending, including various pre-sentence reports, together with the expert reports of Dr Kerri Eagle, satisfy me beyond reasonable doubt that: 1. the Offender has a previous record of convictions for offences including offences of serious personal violence: an aggravating factor - s 21A(2)(d) Sentencing Act; 2. the offences were committed whilst the Offender was on conditional liberty, subject to a Community Correction Order: an aggravating factor - s 21A(2)(j) of the Sentencing Act; 3. the Offender was well aware that one of the effects of his taking of methylamphetamine was that he would commit acts of violence or would become aggressive towards others: a matter of serious aggravation - see R v Gagalowicz [2005] NSWCCA 452 at [36]; and 4. the Offender did not have a physical need to consume methylamphetamine. He chose to purchase and use it. When he used it, he "loved it". He only used it when he could afford to do so. His drug use, certainly at the time of the offending relevant here, came about because he freely chose to use it in the exercise of his moral compass: an aggravating factor - see R v Henry (1999) 46 NSWLR 346 at [196]-[201].
5. The Sentencing Act requires that the methylamphetamine-induced psychosis which was affecting the Offender at the time of the offending conduct is not to be taken in account as a mitigating factor: s 21A(5AA) Sentencing Act.
6. Contrary to the Offender's submissions, neither the fact that the offences occurred whilst he was undergoing a methylamphetamine-induced psychosis, nor the existence of a substance use disorder, are such as to ameliorate the need for general deterrence as a relevant factor of weight to be considered on sentence. Nor does his use of drugs mitigate his moral culpability for the offence.
7. I am satisfied that general deterrence remains an important purpose to be considered in the sentence imposed on the Offender. This sentence should make clear to the community at large that acts of violence, including murder, and lengthy terms of imprisonment are the consequence of the ingestion of methylamphetamine: see R v Fang (No.4) [2017] NSWSC 323 at [81].

Mitigating Factors

1. The Offender submitted that the offences, even though committed as part of a single course of conduct, were not part of a planned or organised criminal activity. I accept that this is so and that this is a mitigating factor which I take into account: s 21A(3)(b) of the Sentencing Act.
2. However, in the circumstances here, it is not a matter to which significant weight can be attached. That is because the offending, comprising violence resulting from a methylamphetamine-induced psychosis, is inherently not of a kind that could be part of a planned or organised criminal activity.
3. The Offender did not submit that the Court should find that he was not likely to reoffend. On the contrary, he submitted that an assessment of his likelihood of reoffending was "… necessarily imprecise …". As a mitigating factor, it is a matter for the Offender to persuade the Court, on the balance of probabilities, that a finding that he is unlikely to reoffend ought to be made. The evidence and submissions have failed to persuade me that I should make such a finding: s 21A(3)(g) of the Sentencing Act.
4. There is certainly a prospect, if the Offender remains abstinent from illicit drugs, that he will not reoffend. However, that prospect is insufficient for a mitigatory finding.
5. Given his youthful age at the time of the offending, and that it can be reasonably anticipated that the Offender's access to drugs whilst in custody should be severely limited, I am prepared to find that the Offender has reasonable prospects of rehabilitating himself. This is a mitigating factor: s 21A(3)(h) of the Sentencing Act.
6. The Offender has not given any evidence on his sentence hearing, nor asked for any statement or other written material to be taken into account. He is not obliged so to do. However, the consequence is that there is no evidence or other material before me that suggests that the Offender has accepted responsibility for his actions and acknowledged the injury and loss caused by his actions. He is not entitled to any mitigation of his sentence for any display of remorse: s 21A(3)(i) of the Sentencing Act.
7. The Offender has pleaded guilty. The parties are agreed that he is entitled to a discount of 10% on any sentence which the Court would otherwise have imposed. This reflects the utilitarian value of his plea. Having regard to the overwhelmingly strong Crown case, the timing of the pleas and the absence of any other expression of remorse, I am not prepared to place any weight on the pleas of guilty as being an indication of remorse.
8. The Offender also submits that the Court should take into account that his conditions of incarceration have been more onerous because he has been subjected to 80 full days and 14 half days of being locked in his cell as a result of the effects of the COVID-19 pandemic. In addition, he submits that the generally more restrictive conditions on those in custody (including with respect to receiving visitors), also imposed as a result of the pandemic, should be taken into account. It is appropriate to take these matters into account in mitigation of any sentence which would otherwise be imposed, and I do so.

Victim Impact Statements

1. The Court read the Victim Impact Statement of Mr Robertson's mother, and as well heard the Victim Impact Statement of Mr Kouaider read to the Court. These statements made clear that the death of Mr Robertson and the infliction of really serious physical injuries on Mr Kouaider have caused significant harm and distress.
2. I consider that it is appropriate to take these statements into account. I do so on the basis that harmful impact on Mr Robertson's family, and on Mr Kouaider, is an aspect of the harm done to the community as a whole by the Offender's conduct: s 30E(3) of the Sentencing Act.

Special Circumstances

1. I am not satisfied that I should make a finding of special circumstances with respect to the Offender for either of the offences: s 44(2) of the Sentencing Act.
2. In my view, the statutory ratio provides a period of parole which is adequate to assist the Offender to reintegrate into the community at the completion of his non‑parole period. There is no other reason advanced by the Offender which is sufficient to justify a finding of special circumstances.

Offence of Murder

1. The offence of murder is one of the most serious offences with which the law deals. It involves the criminal taking of a human life. It is a violation of the sanctity of human life which is a concept at the heart of a civilised community. Any conviction for murder warrants a substantial sentence. In the Offender's case, the purpose of punishment (having regard to his moral culpability for the offence) is significant. So too is the need to denounce his conduct in the circumstances. General deterrence is a factor of significant weight to be taken into account on sentence. The community must be protected from any future crimes of the Offender. Specific deterrence is relevant.
2. The Offender, a young man, has committed two offences and is to be sentenced for each one separately so as to ensure that his separate attacks on each of Mr Robertson and Mr Kouaider are appropriately denounced, and that his conduct in each offence is punished. The sentencing principle of totality means that, ultimately, the sentences imposed must properly reflect the Offender's overall criminality.
3. Having discussed all of the facts relevant to the offence of murder, I note that I have found that it falls in the middle range of like offences. The murder here was a violent and brutal assault without reason, carried out whilst the Offender was suffering from the psychotic effects of methylamphetamine.
4. There is no doubt that the Offender's conduct which led to Mr Robertson's death was caused solely by the temporary effects of the ingestion of methylamphetamine by him. That was a matter of his choice. He is criminally responsible and morally culpable for his actions, and is to be sentenced on that basis.
5. Having considered all of the matters to which I have referred, I determine that the appropriate sentence for the offence of murder, after the application of a 10% discount, to be 24 years imprisonment with a non-parole period of 18 years.

Offence of Wounding with Intent

1. The offence of wounding with intent in the circumstances here falls slightly below the mid-range of offences of like kind. The circumstances giving rise to this offence have been fully described in the course of this judgment. Again, the behaviour of the Offender leading to this wounding was caused solely by his self‑intoxication with methylamphetamine. As I have said, it was his choice to take the methylamphetamine. He is criminally responsible and morally culpable for this offence.
2. I determine the appropriate sentence for this offence, after the application of the discount of 10%, to be 7 years and 2 months imprisonment with a non‑parole period of 5 years and 4 months.
3. It will be necessary for there to be some concurrence and some accumulation of these two offences. In my view, in the application of the principle of totality, the sentence for murder should commence 2 years and 6 months after the commencement date of the sentence for wounding with intent.

Serious Personal Violence

1. I am required to warn the Offender, which I now do, of the existence of the Crimes (High Risk Offenders) Act 2006 and the fact that that Act applies to the offences of murder, and wounding with intent, of which he has been convicted and for which he is about to be formally sentenced.
2. At some future point in time, an application may be made that notwithstanding the completion of his sentence, the Offender should continue to be detained or else be subject to an Extended Supervision Order impacting upon his liberty.

Sentence

1. Samual Campbell, I impose the following sentences upon you: 1. For the offence wounding of Zane Kouaider, I impose a sentence of imprisonment comprising a non-parole period of 5 years and 4 months with a balance of term of 1 year and 10 months to commence on 15 February 2021. 2. For the offence of the murder of Nicholas Robertson, I impose a sentence of imprisonment comprising a non-parole period of 18 years with a balance of term of 6 years to commence on 15 August 2023. 3. The first date upon which the Offender will be eligible to be released on parole is 14 August 2041.

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: 20 July 2023