The offender having pleaded guilty and being convicted is to be sentenced for the offences described in Counts 1, 2 and 4 on the indictment, as follows:
Count 1: On the 7th day of March 2016 at Ingleburn in the State of New South Wales, did use a prohibited firearm, namely, a semi-automatic rifle, not being authorised to do so by a licence or permit: s 7(1) Firearms Act 1996. The maximum statutory term is imprisonment for 14 years. The standard non-parole period is 4 years.
Count 2: On the 7th day of March 2016 at Ingleburn in the State of New South Wales, did use a prohibited firearm, namely, a semi-automatic rifle, not being authorised to do so by a licence or permit: s 7(1) Firearms Act 1996. The maximum statutory term is imprisonment for 14 years. The standard non-parole period is 4 years.
Count 4: On the 7th day of March 2016 at Ingleburn in the State of New South Wales, intentionally hindered an investigation by police into the commission by Wayne Williams, of a serious indictable offence, namely, the shooting of Mazam Bassal with intent to murder: s 315(1)(a) Crimes Act 1900. The statutory maximum term of imprisonment is 7 years. There is no standard non-parole period.
There are no Form 1 matters.
A certificate pursuant to s 35A Crimes (Sentencing Procedure) Act 1999 reports the acceptance by the Crown of a plea to an offence other than the offence with which the offender was charged or committed for trial and that the requisite consultation had taken place with the victim. The certificate is dated 9 July 2018.
[2]
Agreed facts
The offender, at the time of the commission of the offences, was 31 years of age and the director of a business called Inline Signs, located at 1/17 Heald Road Ingleburn. The business manufactured and installed commercial grade signage. The business premises consisted of a large factory containing three adjoining offices on the mezzanine level above the factory floor.
Mr Wayne Williams was one of the 10 employed persons of the business. His father Mr Peter Williams was also an employee as were Ms Nicole Evans and Mr Sean Wright. By March 2016 the offender had known Mr Wayne Williams for about nine years and shared an intimate relationship with him for more than 18 months.
The offender had known each of Mazam, Terry and Mark Bassal for years. Mark and Mazam Bassal ran a business from nearby premises in Ingleburn and were engaged in running a number of service stations. In late 2015 they hired the offender's company to manufacture and install signs at their Gundagai service station and to carry out other renovations. In early 2016 a dispute developed between Mr Mazam Bassal and the offender in relation to the Gundagai works.
On Friday 4 March 2016 the dispute came to a head when Mr Mazam Bassal threatened the offender's employee Mr Sean Wright during a heated telephone conversation. A few minutes later Mr Mazam Bassal arrived at the offender's Ingleburn factory with an unknown male who told Mr Wright to "step outside" on the basis that he had allegedly shown disrespect for Mr Mazam Bassal during the telephone conversation. The offender told Mr Mazam Bassal and the unknown male to "get the fuck out of the office". Mr Wright apologised to the men. The offender, Mr Mazam Bassal and the unknown male then argued downstairs on the factory floor before eventually Mr Mazam Bassal and the unknown male departed. The offender later told police that by the time they left, things were "fine".
In the meantime, hearing the dispute, the offender's employee Ms Nicole Evans telephoned Mr Wayne Williams and told him of the ruckus. He said he was "on his way". When he arrived, shortly later, the offender was still crying as a result of the dispute.
Mr Wayne Williams carried a long firearm from his car into the factory floor. Apparently angered by the report of Mr Mazam Bassal's visit, he discharged a shot from the firearm into the back wall of the factory. He voiced threats of wanting to harm the Bassal's. There is no evidence that the offender heard those threats. Some hours later Mr Wayne Williams texted the offender apologising for "scaring everyone…". That evening (Friday 4 March 2016) the offender spoke to Mr Wayne Williams about the details of the confrontation with Mr Mazam Bassal earlier that day.
The offender spent the weekend by herself on the Gold Coast. Over the weekend she was in regular text and phone contact with Mr Wayne Williams but there is no evidence that they discussed the dispute or confrontation with Mr Mazam Bassal. The offender returned to work at the Ingleburn factory on Monday 7 March 2016 at about 8.30am.
[3]
Count 1
Mr Wayne Williams was captured on CCTV arriving outside the Ingleburn factory at 9.50am carrying the prohibited firearm being a Chinese manufactured semi-automatic rifle. He entered the factory with the rifle covered in a cloth sleeve. Neither the offender nor Mr Wayne Williams held a licence or permit for the firearm.
Mr Wayne Williams carried the rifle into the offender's office where she was situate. He placed it on the lounge. She saw bullets in the banana shaped magazine. She saw him load the magazine into the gun. Mr Wayne Williams told the offender to "call Mick" (referring to Mr Mazam Bassal). The offender told Mr Wayne Williams that she did not want to. He persisted saying:
It's better we sought this out while I'm here. We don't want this escalating while I'm not here. So you want to sort it out.
The offender then telephoned Mr Mazam Bassal at 9.59am and asked him to come to the factory. She did not communicate to him that there was any problem. When Mr Mazam Bassal arrived, he passed Mr Sean Wright before entering the offender's upstairs office. Mr Sean Wright observed that Mr Mazam Bassal "appeared to be happy" and Mr Mazam Bassal said to Mr Wright: "all good about Friday?" to which Mr Wright replied in the affirmative.
When Mr Mazam Bassal entered the offender's office, Mr Wayne Williams was at his desk to the left of the entrance. He had placed the rifle across his lap under the desk. When Mr Mazam Bassal entered the room Mr Wayne Williams fired a single shot up into the ceiling near the air conditioner and said:
if you have a problem you need to tell me now…you don't wait for me to leave and then you staunch my missus. You can't staunch my missus while I'm not around…that's not the way it works…
Mr Wayne Williams and Mr Mazam Bassal were "not even half a metre" apart when Mr Wayne Williams fired the shot.
[4]
Liability for count 1
The offender agreed with Mr Wayne Williams that he would intimidate Mr Mazam Bassal by presenting a loaded firearm. She foresaw the possibility he would discharge the firearm (though not at anyone) [as written in the Agreed Facts].
[5]
Count 2
Mr Mazam Bassal left immediately saying words to the effect: "…he would be back…and they would be sorry…".
Mr Mazam Bassal informed his brothers Mark and Terry by telephone of what had happened. Mr Terry Bassal drove to the offender's factory, walked a short way onto the factory floor and called out for Mr Wayne Williams and the offender to come down and discuss things, saying: "if what happened did happen, you've crossed the line". The offender told Mr Wayne Williams to stay upstairs and that she would sort it out. She went down to the factory floor alone and said to Mr Terry Bassal: "Terry I had nothing to do with it they went too far…" to which he responded: "that's bullshit Chantelle, you set this up…". She also told Mr Terry Bassal that a gun was not put to Mr Mazam Bassal's head but was fired into the air, to which Mr Terry Bassal responded: "you'll be sorry for this Chantelle. You should know better. You know us, you know who we hang out with". The offender followed Mr Terry Bassal to his car and as he left he said words to the effect:
…he was going to come back for me [the offender]…we have a death wish…he was going to come back and get me [the offender] because hurting me [the offender] would hurt him [Mr Wayne Williams].
The offender went from the factory floor upstairs to the office and told Mr Wayne Williams words to the effect that "they" were planning to come back to "hurt her".
Mr Terry Bassal met with Mr Mazam Bassal. Mr Mazam Bassal told Mr Terry Bassal that their brother Mr Mark Bassal had already gone to the offender's factory. Mr Terry Bassal drove back to the factory and when he arrived he saw Mr Mark Bassal parked in front of the factory, seated inside his car. Mr Terry Bassal exited his car and walked back to the factory, unaware that as he did so Mr Mazam Bassal was driving into the factory carpark behind him.
As Mr Terry Bassal arrived he saw Mr Wayne Williams father, Mr Peter Williams walking back into the factory and he tried to engage him in conversation. Mr Peter Williams started walking towards the stairs at the back of the factory.
From this point the agreed facts including inconsistent versions of the circumstances surrounding important shooting event, as given to police by the participants. The plea of guilty is entered on the material facts of the nature of the offending, to be found in those versions (paragraphs 13 to 16).
Mr Terry Bassal walked toward the stairs leading up to the office which Mr Peter Williams was ascending and his brothers Messrs Mark and Mazam Bassal entered the factory. There was shouting and yelling between all participants. Mr Wayne Williams and the offender had come to the stairs. The offender was walking down the stairs, Mr Peter Williams was halfway up the stairs and Mr Wayne Williams was at the top of the stairs. Mr Wayne Williams had the rifle beside his leg where it could not be seen.
Mr Terry Bassal said words to the effect: "hey man I came here by myself - I'm not here to cause trouble. If I wanted to cause trouble I wouldn't be here by myself. Just lets talk about it - this is stupid." At least that is as Mr Terry Bassal describes his conduct but his brother Mr Mark Bassal says that although Mr Terry Bassal did not offer threats, he heard him call Mr Wayne Williams a "fucking idiot". It is apparent from the differing versions of events, that the conversation was heated. The offender's version includes that she was threatened; the Bassal brother's saying that she had a "death wish" and that they could have her "fixed up".
At about 10.38am when Mr Wayne Williams who was still standing on the stairs and the offender was on the factory floor in proximity with the Bassal brothers, the confrontation peaked. The offender says that Mr Mark Bassal was "…running towards me…". It was then that Mr Mark Williams raised the rifle and shouted to the offender "duck" or "move" following which he discharged from the rifle around 11 shots towards the three Bassal brothers. Mr Mazam Bassal was killed. Mr Terry Bassal sustained serious wounds to his back, arm and neck. Mr Mark Bassal sustained a minor flesh wound to his leg.
Bullets ricocheted off the concrete factory floor. The offender was hit in the leg by some collateral "splatter". Other employees present in the factory were hiding behind a guillotine.
[6]
Liability for count 2
The offender agreed with Mr Wayne Williams (whether by way of a new agreement or as a continuation of the original agreement for Count 1) that he would intimidate the 3 Bassal brothers by presenting a loaded firearm (both she and Williams, by this stage, expecting the Bassal's would likely return). She foresaw the possibility he would discharge the firearm (though not at anyone) [as written in the Agreed Facts].
[7]
Count 4
Following immediately after the shooting:
Mr Terry Bassal was on the ground holding his arm yelling "I'm bleeding he shot me…get me out of here, I'm bleeding";
Mr Mark Bassal grabbed Mr Terry Bassal and dragged him out of the factory;
Mr Mark Bassal started doing CPR on Mr Mazam Bassal and was yelling "call an ambulance. Call the police. Call an ambulance…". The offender kept calling out "no" the whole time. When asked by police why she refused the offender said "I don't know, who are they to come into my workplace and tell me they were going to kill me and then when they get shot and they want an ambulance? What if they shot me?"
The Bassal's were not in fact armed.
The offender ran upstairs and made Wayne Williams sit down in an office. She grabbed her phone and told him she would "sort it out" and that she would go and pick up the bullet casings.
The offender went back down stairs and collected five bullet casings which were lying around the base of the stairs. She took them upstairs and hide them in her desk draw in office 3. When asked by police why she collected and hid the bullet casing she replied "I don't know." She gave the same answer to the question: "Was it a decision to maybe hinder any subsequent police investigation that was about to follow?"
Whilst she was collecting the bullet casing the offender called 000.
The general tenor of the information she provided to the operator was false in the sense that she implied that it was the persons who had come to the factory who were armed with guns and had carried out the shooting. When asked if each of the males "outside" had a gun she replied "I think so…". At one point during the 000 call the offender whispered to Mr Wayne Williams "you're not shooting coppers". She agreed that she said that to him at the point she was directing him to go and sit in one of the offices. She confirmed he then sat on the lounge with the gun still in his possession.
The first police officer arrived at the factory at 10.43am, about four minutes after the shooting. SC Craig Bradshaw was standing at the factory entrance with his gun drawn when he saw the offender and Mr Peter Williams start walking down the stairs from the mezzanine level. They both placed their hands on their heads and when instructed, both lay on the factory floor. A short while later, after other police arrived, SC Bradshaw directed the offender to back slowly from the factory with her arms in the air.
Once both the offender and Mr Peter Williams were removed from the factory the police maintained a siege situation in circumstances where they could not see or otherwise determine where "the shooter" was upstairs or what he was doing.
After initially refusing to give police any information about "the shooter", a few minutes after exiting the building the offender had the following conversation with a police officer who was known to her (SGT Jason Azzopardi):
JA: Chantelle, who is the shooter? Who has the gun? Police need to know
Off: No, no, no…
JA: Chantelle, tell me who is in there with the gun so police can communicate with him.
Off: It's Wayne Williams
JA: Has he got the gun?
Off: Yes
JA: Whereabouts in the factory is he?
Off: He is upstairs in the office
JA: Can he see out the windows upstairs?
Off: No, you cannot see out
A siege situation remained for the next several hours. At 11.06am the police heard a single gunshot emanating from the upstairs offices. They did not discover until some hours later that Mr Wayne Williams had killed himself by shooting himself in the head with the same firearm in office 1.
Sometime after 1.30pm the offender was briefly taken to Macquarie Fields police station then allowed to leave. At 4pm the next day, 8 March she rang Det Sgt Shane Lee and gave him a version of what had occurred the previous day. She then agreed to come to the police station to participate in an ERISP. The ERISP was conducted at 6.07pm that day. The offender also participated in an Forensic Procedure.
[8]
Nature of offence
As the agreed facts paragraphs [16] following the subheading "Liability for Count 1" and [27] following the subheading "Liability for Count 2" show the criminal participation of the offender was in the nature of extended joint criminal enterprise with Mr Wayne Williams. This meant that the offender's joint criminal liability with Mr Mark Williams was not of the type where she had agreed with him that he shoot at any person. The Crown presents and the offender agrees that the crime committed by her was of the type where Mr Wayne Williams shooting with intent to wound or to kill was outside of the scope of the joint criminal enterprise. Her criminal culpability arose from the fact that she foresaw the possibility that Mr Wayne Williams might discharge the rifle during the commission of the joint criminal enterprise but not at any person. Their joint criminal enterprise was to intimidate only with the use of the loaded rifle.
The offender's guilt is founded on the notion of her criminal culpability as a participant in a joint criminal venture for an incidental crime, when its commission was foreseen but not agreed and lies in her participation in that joint criminal enterprise with the necessary foresight and continuing her participation in the venture with foresight of the possibility of the incidental crime being the discharge of the firearm but not at a person by Mr Wayne Williams: Miller v The Queen [2016] HCA 30; 90 ALJR 918 at [135].
[9]
Objective seriousness
The parties did not require the Court to resolve the inconsistencies in the versions of the Count 2 facts; the Crown putting that the point it "wasn't so important that that needed to be done": transcript page 5, line 42. Whilst conceding that the offender did not know Mr Wayne Williams would discharge the rifle at any person, the Crown did not concede that the competing versions of the facts be resolved on the basis that the offender put herself in the firing line at any time: transcript page 5. The Crown concedes that the offender did not do anything to encourage Mr Wayne Williams in his criminal conduct beyond their agreed enterprise: transcript page 6, line 10. The offender agreed with this partial resolution of the inconsistent versions of fact contained in the Agreed Facts: transcript page 7, line 2.
The influence of the offender over Mr Wayne Williams or vice versa is not discernible from the Agreed Facts. Whereas she was his employer, their relationship included the dynamic of their sharing and established a romantic relationship.
There is an obvious escalation in the offender's criminal culpability between Counts 1 and 2. The submissions of each party identified the escalation. That increased criminal culpability was in proportion to her increased forewarning and opportunity for foresight of the risk that Mr Wayne Williams might discharge the rifle. It is to be observed in the chronological development of the following events:
The facts show the passion of the dispute was obviously escalating from Friday 4 March 2016;
On Friday 4 March 2016 Mr Wayne Williams came to the factory in possession of the loaded rifle in response to the visit of Mr Mazam Bassal and having arrived after the departure of Mr Mazam Bassal, was so agitated as to discharge the firearm into the rear wall of the factory scaring surrounding people;
During the Count 1 offence on the morning of Monday 7 March 2016 Mr Wayne Williams' possession of the loaded rifle was accompanied by his inviting the offender to call Mr Mazam Bassal to arrange his visit in continuation of the dispute; the risk of use of the firearm for the purposes of intimidation being obviously then appreciated by the offender because she initially refused but then on agreeing to the joint criminal enterprise of intimidation by use of the loaded rifle, she did telephone Mr Mazam Bassal and invited him to attend in order "to sort it out".
In the course of the Count 1 offence the offender's foresight of the possibility that Mr Wayne Williams would discharge the firearm although not at anyone was confirmed when he did so by discharging a shot into the ceiling of the factory whilst he was in close proximity with Mr Mazam Bassal.
The Count 1 offence events culminated with Mr Mazam Bassal's expression of escalation of passion of the dispute in his threat to be back and that the offender and Mr Wayne Williams would be sorry.
After the Count 1 offence the offender took no action to avoid the continuation of the possibility of Mr Wayne Williams discharging the firearm in an environment of him, the offender and the Bassals expecting further engagement at the factory.
The offender's venturing to the factory floor and saying to Mr Terry Bassal at the time of his attendance in response to the Count 1 offence that "it went too far" whilst ameliorating conduct, was also conduct acknowledging her foresight of the escalating risk of engagement between herself, Mr Wayne Williams and the Bassal's whilst Mr Wayne Williams possessed the loaded rifle.
The offender was alerted to the escalating passion of the dispute by Mr Terry Bassal's threat that he was going to "come back" to "get" the offender in order to "hurt" Mr Wayne Williams and she participated in the escalation by then informing Mr Wayne Williams that "they" were coming back to "hurt" her.
Following the departure of Mr Terry Bassal and with the foresight of the elevated possibility of discharge of the firearm by Mr Wayne Williams available from the above referred to escalation of the dispute to threats of personal harm, the offender did nothing to remove Mr Wayne Williams, the loaded rifle or herself from the factory or from confrontation with the Bassal's.
The semi-automatic rifle carried by Mr Wayne Williams and the "banana-shaped" magazine are shown in photograph 4 of the Crown Sentence Summary, Exhibit A. The Agreed Facts refer to and therefore incorporate that photograph. The offender saw bullets in the magazine and watched Mr Wayne Williams load the magazine into the gun prior to the arrival of Mr Mazam Bassal on the morning of 7 March 2016. That the firearm, the subject of the offences, was a weapon capable of semi-automatic fire from a magazine containing multiple bullets of 39 millimetres, are facts which on worldly experience, identify the firearm as more capable of causing harm than a smaller calibre, single shot, less powerful firearm. Those features of the nature of the firearm are relevant in consideration of the objective seriousness of the "use" of a prohibited weapon under s 7(1) Firearms Act, the Count 1 and 2 offences.
The offender addressed objective seriousness of the offending as follows:
The person in the position of the offender here, has accessorial liability by virtue of that principle on foresight of possibility. So that must always mean in our respectful submission that their criminal responsibility on any view is considerably less than the principal offender. We accept your Honour that any discharge of a firearm, even in circumstances where it's not fired at someone, nevertheless carries with it potential for danger. But again, that has to be qualified or read and/or understood in light of the last matter I raised, which is that you don't know, you are not planning, it's not part of your core agreement that the gun will be discharged and again I keep saying, albeit not at anyone. Your responsibility is not that you were part of that core agreement, if you were, that would be a joint criminal enterprise, this is an extended joint criminal
enterprise. So the discharge of the weapon is not part of the core agreement, your access or liability, is by extension that you foresee it as a possibility.
HIS HONOUR: But how do you say that when the second count occurs after the firearm was discharged by the individual in the first count?
KORN: Your Honour, I will deal with that but since your Honour asks me, I will deal with it now. I deal with it this way, everything I've said about principle, remains the same. The question is because after all the extension principle is that you foresee the possibility of the discharge of the firearm. It is clear and we accept and it's clear your Honour because we accept that the threshold will be passed in respect of count 2. We accept that if you continue to use the word "possibility" because that that's the formula, that's the legal formula. The fact of the possibility is significantly higher for count 2 than count 1.
But the principle remains the same but the fact of or the reality of the possibility, your knowledge, your foresight of that possibility is significantly higher in respect of circumstances where there has been the discharge of the shot on Friday, which wouldn't automatically make you think that there will be a discharge on the Monday. But clearly by the time you get to count 2, when you put both of those two matters together and one is clearly an escalation of the other. Then clearly whilst the formula, the legal formula, remains the same, the degree of foresight or the degree of possibility becomes significantly higher.
A display if rejection of Mr Wayne Williams criminal conduct of shooting people;
An action sensibly productive of directing him to a quiet place, away from line of sight of the Bassal's, police who were bound to arrive and other persons whilst he remained in possession of the firearm; and
Protected police.
The offender did not handle the firearm. She is did not to be in a joint criminal enterprise with Mr Wayne Williams to discharge the firearm at any person. Accepting the joint submission of the parties that his doing so was beyond the offender's contemplation of the possible risk; I assess the offender's criminal culpability and the objective seriousness of her offending in the Count 1 offence to fall well below the mid-range range for offences of this type but more serious than the lower end of the range because having first decline to invite Mr Mazam Bassal to attend because of her appreciation of the risk, she subsequently elected to do so.
In my opinion, the criminal culpability and objective seriousness of the offender's conduct in the Count 2 offence is properly conceded by her as more serious than for Count 1 and falls in about the mid-range for offences of this type.
In my opinion the offender's criminal culpability and objective seriousness of conduct in relation to the Count 4 offence falls toward the lower range for the offences of intentionally hinder an investigation of police, even after having regard to the seriousness of Mr Wayne Williams offences.
[10]
Subjective factors
The offender was born in Malta on 7 February 1985. She was 31 years of age at the time of the offences and is now 33. With her parents she migrated to Australia at age three. Her parents separated when she was five. Her mother resides here and her father, with whom she has never really had a relationship, resides overseas. She is of dual citizenship. She was schooled to completion of Year 11.
The offender has two sons aged about 13 years and 11 years. She was married for nine years. Her children are presently in the care of their father who is 43 years of age and she sees them monthly whilst she is in prison.
The offender's affidavit of 9 July 2018 was read without objection. The Crown did not cross-examine her on her evidence.
After the subject events of 7 March 2016, she was arrested and bailed at 9.30pm. Her mother was waiting for her. They went to her aunt's home at Campbelltown for two nights and after picking up her two sons, they went to her mother's home on the South Coast. On 10 May 2016 she reported to Campbelltown Police Station where she was charged with further offences including murder and she has remained in custody since that time. This was her first time in custody. At Mulawa Women's Detention Centre she was originally assessed as a prisoner at risk, probably on account of it being her first time in custody, the seriousness of the charges, the high media profile of Mr Wayne Williams actions, that she had lost her partner to suicide and that two days before being taken into custody she had attempted suicide by way of throwing herself in front of a train from which plan her cousin Anthony dissuaded her by reminding her that she was needed by her two sons.
The offender's affidavit expresses remorse for Mr Mazam Bassal's children and for Mr Wayne Williams' children, stating that they "are the real victims from what happened that day". Otherwise she says that she feels "very sorry for everyone that was effected". In late March 2016 she found out that she was pregnant with Mr Wayne Williams child, which pregnancy she elected to terminate. What is concerning is that nowhere in her affidavit does she say anything about remorse for the loss of life of Mr Mazam Bassal or for the serious injuries suffered by his brothers. In oral submissions, transcript page 31, line 15, the Crown put that there was "some artificiality because of the fact that your Honour can't take into account, and ought not take into account, any need for remorse in relation to the death and grievous bodily harm…".
Whilst the offender cannot be sentenced for participation in the intentional shooting of people by Mr Wayne Williams because those actions of his were beyond her crime; nevertheless, in my opinion, the offender's affidavit fails to show remorse for her Count 4 offences which hindering was to protect Mr Wayne Williams and real remorse for what was wrong in her participation with Mr Wayne Williams using the loaded semi-automatic rifle for intimidation in the context of the disastrous events which she witnessed within the scope of her culpability for extended joint criminal enterprise. This shows a lack of appropriate remorse for her two commissions of the serious crime of use a prohibited firearm. The statutory maximum of 14 years imprisonment and the standard non-parole period of 4 years are Parliament's goalposts indicating the seriousness of the crimes and her expression of remorse in that context is inadequate.
Given that she suffers a serious depressive and anxiety state to which the observance of Mr Wayne Williams shooting of the Bassal's and his own suicide has added the worsening of post-traumatic stress disorder; I accept to some extent some qualification of the inadequacy of her expression of remorse, in the context that her capacity for expression of remorse might be discounted by her mental health.
The reports of Dr Tim Watson-Munro dated 1 February 2017 and 6 July 2018 detail her significant mental health issues, her significant psychopharmacological and psychotherapy needs and hardship she suffers in prison as a consequence. The affidavit of the offender's mother Jackie McFarlane made 9 July 2018 was read without objection and Mrs McFarlane was not required for cross-examination. Consistent with the affidavit of the offender and with the reports of Dr Watson-Munro, Mrs McFarlane describes a plan for rehabilitation of the offender, in which she is willing to participate in when she is released from prison. The elements of that plan may be summarised as follows:
In the community she will be more able to participate in appropriate psychopharmacological and psychotherapeutic treatment than she finds readily available in prison and she is willing to follow an appropriate mental health plan toward getting her mental health back in order.
The offender will move to live with her mother on the South Coast and therefore be removed from the environment of places and persons associated with the events of 7 March 2016.
Whereas the offender's ex-husband and father of her children has had 100% care and control of the children during her imprisonment, on her release she plans to ween herself back into their lives and return to the 50/50 sharing of custody relationship which preceded her imprisonment.
The offender will receive strong family support from her mother, her brother and her aunty who she describes as having been more of a "mum model" than even her mother.
The offender intends her future career to be either in finance or (her affidavit provides) the law. Her aunty, from whom she would learn, has 30 years of experience in the financial industry in Sydney.
The offender plans to study law and appreciates the difference between obtaining a law degree and obtaining admission to practice, given her criminal record.
The offender has no antecedent criminal history but for offences of drive whilst suspended, drive whilst disqualified and drive with a low-range PCA. Her denial of use of illicit drugs and consumption of alcohol is reported by Dr Watson-Munro, without qualification.
Prior to the subject offending the offender successfully operated her business Inline Signs for 14 years, reporting that at its peak it was turning over $500,000 per month, including from working with major clients such as Westfield and Coles.
In all of the circumstances I accept the opinion of Consultant Forensic Psychologist Dr Watson-Munro that "Given an absence of a prior forensic history and her strong desire to move forward with her life, I believe that with treatment, support and supervision her prognosis is positive." I also accept Dr Watson-Munro's assessment that behavioural breaches whilst imprisoned appear to be in significant part a function of her mental health issues and the qualified opportunity of Justice Health to meet her treatment needs, in particular therapeutic needs whilst imprisoned. In the community, provision of appropriate therapeutic treatment is likely to be far more available, for obvious reasons.
The offender does not put that her mental health contributed to her offending: transcript page 18, line 1.
In my opinion, the offender's limited criminal antecedent history, that her present incarceration is her first, that previously she was a valuable contributor in the community her apparent capacity for betterment of herself through education and her favourable prognosis for rehabilitation are all special circumstances to be considered in the instinctive synthesis of design of an appropriate sentence. They are solid special circumstances.
It is agreed that the offender offered to plead guilty to Counts1 and 4 at the first available opportunity. The Crown concedes that the usual utilitarian discount of 25% would be appropriate. Applying the principles of the guideline judgment R v Thompson; R v Houlton (2000) 49 NSWLR 383, I am of the opinion that a 25% discount of sentence is appropriate for Counts 1 and 4.
Before committal, the Director substituted the Count 2 offence for what was described to me as an original allegation of murder after which point negotiations described to me as being in relation to the viability of the charge were ongoing: transcript page 10, line 15. Guided by the procedural history and indications of counsel for the parties, a utilitarian discount of 15% of sentence is appropriate for Count 2 applying the principles of the guideline judgment R v Thompson; R v Houlton (2000) 49 NSWLR 383.
It is fundamental to each of the s 7(1) Firearms Act offences that use of the semi-automatic .38 calibre rifle carrying a loaded magazine (from which Mr Wayne Williams fired 11 times) is a type of criminal conduct carrying the potential for serious harm appreciated by the statuary sentencing guideposts set by Parliament. Nevertheless, in sentencing, it is the offender's conduct only which is to be taken into account and not the death and injury caused by the criminality of Mr Wayne Williams: R v De Simoni (1981) 147 CLR 383 at 389.
[11]
Orders
1. You are convicted of the following offences:
1. Use a prohibited firearm not being authorised to do so by a licence or permit: s 7(1) Firearms Act 1996;
2. Use a prohibited firearm not being authorised to do so by a licence or permit: s 7(1) Firearms Act 1996; and
3. Intentionally hindering an investigation by police of a serious indictable offence: s 315(1)(a) Crimes Act 1900.
1. I revoke the s 9 bond ordered 29 March 2015 sequence H57706961.
2. On account of breach of the s 9 bond ordered 29 March 2015 sequence H57706961 you are sentenced to 6 months imprisonment commencing 10 May 2016.
3. You are sentenced to a non-parole period of 2 years and 2 months commencing 10 August 2016, terminating on 9 October 2018.
4. The balance term of 1 year and 2 months to commence on 10 October 2018, terminating on 9 December 2019.
5. In relation to the Count 4 offence you are to enter into a good behaviour bond pursuant to s 9 CSP 1999. I order for you to enter into the bond for period of 18 months commencing today.
6. Conditions which apply during the period of the bond:
1. Appear before the court at any time if called upon to do so.
2. To be of good behaviour.
3. To report to the officer in charge of Community Corrections Nowra within 14 days.
4. To advise the clerk of the court of any change of residential address.
5. To accept the supervision of and obey all reasonable directions of the Community Correctives Service for as long as that service considers it appropriate.
[12]
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: 08 October 2018
The Crown submitted and the accused agreed that the rationale for determining objective seriousness lay in the offender's culpability for her foresight of the potential for danger: transcript accused page 23, line 10 - page 25, line 35; page 25, line 41 to page 26, line 50. Plainly her foresight was far greater for Count 2. The accused described that as "an increased knowledge of the risk of it happening": transcript page 16, line 50.
The objective seriousness of the Count 4 offence of hindering an investigation by police into the commission by Mr Wayne Williams of the seriousness indictable offence he had committed, involved criminal culpability of hindering investigation into the intentional killing of Mr Mazam Bassal and serious wounding of Messrs Terry and Mark Bassal. The offender hindered whilst aware of the seriousness of Mr Wayne Williams criminal conduct, the subject of police investigations. The offender's actions were calculated to interfere in that process.
The offender's hinder conduct was committed in the emotional environment of her having observed her long-term intimate partner, slaying and wounding people which events she had not expected. The Crown submitted that her actions "were not numerous (collecting and hiding gun casing and making a misleading 000 call) and were done in the heat of the moment": written outline of Crown submissions on sentence. The Crown written submissions included the further relevant information:
…neither activity was likely to mislead the police for very long - there were other bullet casings and fragments all over the factory area and it soon became quite apparent to the police that there had been no other weapons produced by anyone at the scene. Additionally, despite initial silence, the offender shortly confirmed a number of important facts to the police [the Crown referred to her conversation with SGT Azzopardi].
Little was submitted on behalf of the offender and in my mind appropriately so, given the fairness of the above referred to Crown description of the objective seriousness of the Count 4 offending.
In my opinion, an important ameliorating action taken by the offender in precisely the period of her actions the subject of Count 4 is that she directed Mr Wayne Williams to go into the office, telling him "you're not shooting coppers…". Taking the Agreed Facts at face value, as the Court must, that action was all off:
An aggravating matter is that at the time of the offending the offender was at liberty on condition that she be of good behaviour pursuant to a Section 9 Bond for 2 years for driving while disqualified. At the time of the offences she had been compliant with that bond for almost 11 months.
Sentencing for these firearm use offences and for hindering investigation of police of a very serious crime, must include consideration of the protection of society, deterrence of the offender and of others who might be tempted to offender, retribution and reform, which proposes overlap: Veen v The Queen (No 2) (1988) 164 CLR 465. Promotion of rehabilitation of the offender is not inconsistent with those principles of punishment: s 3A(d) Crimes (Sentencing Procedure) Act.
General deterrence is an important element of sentencing for firearm offences. The offender's agreement with Mr Wayne Williams that he use such a significant firearm, particularly when loaded, to intimidate other persons and with foresight of the possibility that he might discharge it though not at persons, is conduct demanding of the imposition of stern sentences to send a message to others who might be willing to participate in such use of firearms: R v Skinner [2018] NSWCCA 185 at [72].
The offender is to be sentenced firstly in relation to her breach of the good behaviour bond and subsequently for each of the counts. The whole of the offending occurred during a period of about 1 hour or less. Whilst each of the counts carries a distinctly different criminal culpability, they occurred in broadly a single course of criminality and sentencing invites application of the principle of totality of criminality. Were separate sentences to be designed for each count, significant concurrence would be required otherwise there would be a risk that the combined sentences would exceed that which is warranted to reflect the total criminality. This is so regardless of what might be properly considered as a different episode and type of criminality involved in the Count 4 hindering: Cahyadi v R [2007] NSWCCA 1 at [27]. The total sentence ultimately imposed should be proportional to the overall criminality involved in all of the offences: R v Holder (1983) 3 NSWLR 245 at 260 per Street CJ; R v MMK [2006] NSWCCA 272 at [28].
In the circumstances an aggregate sentence pursuant to s 53A(1) Crimes (Sentencing Procedure) Act 1999 (NSW) in the application of totality and proportionality principles is appropriate: R v Skinner [2018] NSWCCA 185.
On account of the offending, pursuant to s 98(2)(c) Crimes (Sentencing Procedure) Act I revoke the s 9 bond for the breach of the undertaking to be of good behaviour. Pursuant to s 99 the offender is sentenced to imprisonment of 6 months commencing 10 May 2016 and ending 9 November 2016.
I do not find the offender's depression and anxiety or any provocation by any of the Bassal's to be a circumstance of any of the offending warranting a discount of the offender's criminal culpability. I am required to take into account all of the relevant factors and make a value judgment as to the appropriate sentence for each count. The legislative guideposts of maximum penalty and in relation to Counts 1 and 2 and standard non-parole period provide guideposts and meaningful content in this evaluative assessment: Yeung v R [2018] NSWCCA 52.
Given the offender's criminal antecedent history includes only driving associated offences and not crimes of violence or use of firearms, specific deterrence is of less significance than otherwise would be the case.
Counsel for the offender submitted that in relation to Counts 1 and 4 the threshold to imprisonment described in s 5(1) Crimes (Sentencing Procedure) Act was not crossed. The offender conceded that the s 5(1) threshold was crossed in relation to Count 2.
In my opinion, protection of society and the prevalence of gun crime calls for denunciation of the Count 1 offence and for general deterrence such that the s 5(1) threshold is crossed and no penalty other than imprisonment is appropriate. Whilst considering the whole of the circumstances in making this assessment, I point particularly to the inherent danger to surrounding people from the discharge of such a weapon in the office of a work environment and in very close proximity to persons. The offender actively participated in the joint criminal enterprise of intimidation because it was she who invited Mr Mazam Bassal to attend the office. When she did that she was aware of the recklessness displayed by Mr Wayne Williams when he shot the rifle into the rear wall of the factory scaring people on the preceding Friday afternoon, in circumstances of his agitation with the Bassal's. The risk that he would discharge the gun on the Monday morning was not remote. In those circumstances it was a very real risk and those circumstances forewarned the offender to the point that she initially declined to invite Mr Bassal but subsequently elected to do so.
In my opinion, having considered all possible alternatives, an indicative sentence of imprisonment of 1 year is appropriate after applying the utilitarian discount of 25%.
For the Count 2 offence, I agree with the submissions of the parties that the s 5(1) threshold is plainly crossed and I have assessed the objective seriousness of the offending at approaching the mid-range for offences of this type. An indicative sentence of imprisonment of 3 years and 4 months is appropriate, after allowing for the 15% utilitarian discount.
The Count 4 offence requires denunciation, general deterrence and specific deterrence because the offender's hindering was of investigation of a most serious crime being Mr Wayne Williams intentional killing of another human being and serious wounding of others. Her hindering displayed a first response of disrespect for the law, not out of kind with the conduct displayed by the antecedent offences of driving whilst suspended, driving whilst disqualified and driving with a low-range PCA; however, the hindering was spontaneous, of short duration, incomplete and unsophisticated. As I have observed, it was in the course of conduct removing the existing risk of Mr Wayne Williams and the loaded rifle to an office away from people and from police. The offender provided assistance to SGT Azzopardi in the police assessment of a very dangerous situation. I am satisfied that the Count 4 offending does not meet the s 5(1) threshold.
In relation to the Count 4 offence I sentence the offender to a bond pursuant to s 9(1) Crimes (Sentencing Procedure) Act for a period of 18 months. In accordance with the approach taken in regard to a non-custodial sentence that is the subject of a multiple offence sentencing task taken in Grealish v R [2013] NSWCCA 336 at [74] and approved in JM v R [2014] NSWCCA 297 the bond is separately imposed but included in the aggregate sentence imposed.
For the Count 1 and Count 2 offences the offender is sentenced to a total term of imprisonment of 3 years and 4 months. On account of her favourable prospects for rehabilitation established on the evidence adjustment of the normal ratio of non-parole and parole period allowing a parole period of 35% is justified.
Totality and proportionality of sentencing requires partial accumulation of the sentence for Counts 1 and 2 with the sentence for beach of bond. I allow 3 months accumulation.