R v Crane & Ors

Circumstances of the offending

1. I have determined the circumstances of the homicide from the evidence given in the trial, applying the standard of proof beyond reasonable doubt to all matters that tend to aggravate the seriousness of the offending and the standard of proof on the balance of probabilities to all facts in mitigation. My findings are consistent with the jury's verdicts, interpreted with regard to the evidence that was led in the trial and the arguments presented by counsel for the Crown and for each of the accused.
2. At 10:07 pm on 5 April 2017 the four assailants carried out a severe beating of Clint Starkey at the Caltex service station at Peats Ridge, approximately 30 km north-west of Woy Woy on the Central Coast. Mr Starkey sustained head injuries and intracranial bleeding. He was rendered unconscious during the attack. It lasted about 30 seconds and included kicks and stomping to his head, neck and body. The deceased was conveyed to Gosford Hospital by a friend who was with him, Simon Rodden. Mr Starkey never regained consciousness and died in hospital nine weeks later.
3. The assailants all resided at localities within a few kilometres of Woy Woy. They acted in concert pursuant to an agreement that was formed between them not later than 9:40 pm on the evening in question. They agreed to travel in two separate cars from Woy Woy to Peats Ridge, where they would locate Clint Starkey and assault him. Symons, McDonald and Robertson foresaw the possibility that at least one of the participants would intentionally inflict grievous bodily harm in carrying out the enterprise. I am satisfied that, in agreeing to take part, McDonough joined an enterprise for an unlawful battery of such a nature that a reasonable person would recognise that it would carry an appreciable risk of serious injury: Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31; Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30.
4. The circumstances in which Colin and James Crane counselled, procured and assisted the commission of the principal offence require close consideration. The extent of their involvement in bringing about the crime was markedly different as between the two brothers. Allocation of criminal responsibility rests upon the detail of their actions. Both of the Cranes knew the deceased well. In April 2017 Colin Crane lived at Mangrove Mountain, which is about 12 km by road from Peats Ridge, to the west. James Crane lived in a rented house at the back of the Peats Ridge Caltex. Colin Crane was aged 49 years at this time, James Crane was 52. Clint Starkey also lived at Mangrove Mountain, in an outbuilding on his parents' acreage. Simon Rodden was a friend and frequent companion who lived nearby.
5. By early April 2017, conflict developed between Colin Crane and the deceased. The evidence does not permit me to determine what specific issue this concerned. It was largely a matter of friction between incompatible personalities. Colin Crane has for many years suffered chronic symptoms of anxiety and depression. He has been medicated for Bipolar Affective Disorder since 2012. Clint Starkey tended to be irritable, impulsive and reckless, perhaps as a result of very serious injuries that he suffered in a motor vehicle accident in May 2004. At about 4:15 pm on 3 April 2017 mutual antagonism escalated to a confrontation at the Mangrove Mountain General Store. The two men shouted at each other. Clint Starkey drove his vehicle in a dangerous and threatening manner towards Colin Crane's vehicle, which was stationary with his child on board. Simon Rodden was present at the incident.
6. Colin Crane, James Crane and the assailants were all members of the Peninsula Chapter of the Rebels outlaw motorcycle gang, centred on Woy Woy. Immediately after the altercation at the General Store, Colin Crane spoke by phone with James Crane, with another member of the Peninsula Rebels and with Symons. Symons in turn phoned Robertson and three more Rebels members. Through these calls Colin Crane arranged for James Crane, Symons, Robertson, McDonough and three other Peninsula Rebels to attend at Mangrove Mountain for the purpose of finding Clint Starkey and confronting him regarding his aggressive conduct towards Colin Crane. In the late afternoon or early evening of 3 April those men drove in three vehicles to the Starkey property but they did not locate Clint. Either before or after attending at the property, at about 6:00 pm, they congregated at the General Store. As no confrontation actually occurred there is no evidence from which it could be inferred that any of them intended to perpetrate violence if they had located Clint Starkey on that occasion.
7. Nicole Tedder, Colin Crane's partner and the mother of his two children, spoke with Colin late on the afternoon of 3 April. He was shaken and upset by Clint Starkey's conduct at the General Store. The next day, 4 April 2017, Colin Crane told Ms Tedder that the conflict arose out of a driving incident when Mr Starkey overtook dangerously, at speed. He also said that Mr Starkey had threatened to shoot up the Cranes' home with Ms Tedder and their children inside.
8. During the morning of 4 April 2017 Colin Crane said to a person working in the Mangrove Mountain General Store, with reference to the incident of the previous evening, "I'm going to kill him". That evening at the Peats Ridge Caltex Colin Crane encountered Ms Aimee Starkey, a cousin of the deceased, and Ms Toni Meath, Mr Starkey's partner. Colin Crane made it clear that he was looking for Clint Starkey.
9. The events of 3 and 4 April establish the depth of Colin Crane's anger towards Clint Starkey. His instantaneous recruitment of the five younger men who attended Mangrove Mountain on 3 April, within an hour after the altercation at the General Store, satisfies me beyond reasonable doubt of his influence, which arose from the younger men's membership of the Peninsula Rebels and from Colin Crane's status as a life member of considerable seniority. It is evident that Colin Crane was able at a moment's notice to call up physical attendance of Rebels members to act at his behest in conflict.

The evening of 5 April 2017

1. On the evening of 5 April 2017 Rodden drove Clint Starkey to the Mangrove Mountain Memorial Club for a drink. They arrived at about 9:16 pm. Ms Tedder was employed in the restaurant of the Club and she was on duty that evening. Within a minute after Clint Starkey's arrival Ms Tedder confronted him about his threat to shoot up her home. He acknowledged that he had made the threat. He said that he adhered to it and that he had no regard for Colin Crane or his family. Ms Tedder reasoned with him: that he had no quarrel with her or her children, that if he was in dispute with Colin Crane they should work it out and that it should not involve Ms Tedder or her children. Clint Starkey maintained his threat. Ms Tedder was shocked by what he said. She was not able to persuade him to retract.
2. Ms Tedder did not want Colin Crane to be informed of Clint Starkey's attendance at the Club. She did not want to inflame the dispute between the two men. However, her manager was concerned about the degree to which she was affected by her conversation with Clint Starkey. Believing that he was acting in her best interests, he phoned Colin Crane at 9:24 pm, told him of the encounter between Mr Starkey and Ms Tedder and said that Ms Tedder was upset. Colin Crane immediately phoned Ms Tedder and urged her to leave the Club and come home. He questioned her about the details of what had taken place. Ms Tedder sought to calm the situation by telling him that she was alright and would leave as soon as she had finished her shift.
3. From 9:27 pm Colin Crane made six urgent attempts to contact James Crane and eventually reached him at 9:29 pm. They spoke for over a minute. Although call charge records establish the time and duration of many phone conversations on this evening there were no telephone intercepts and there is no direct evidence of what was said. I am satisfied beyond reasonable doubt that in this phone call Colin Crane informed his brother that Clint Starkey was at the Club and that he had made threats, about which Colin Crane was angry and concerned.
4. James Crane was in Woy Woy. He called the Club on its landline and spoke to Rodden for six minutes from 9:33 pm. I am satisfied that in this call James Crane confirmed with Rodden that he was in company with Clint Starkey at the Club but I am not able to infer with any degree of confidence what else may have been said. As soon as their conversation ended, shortly after 9:39 pm, James Crane called Colin Crane and spoke to him for over one minute. There is insufficient evidence from which to infer the content of this conversation, beyond the obvious conclusion that James Crane must have informed Colin that Rodden was with Clint Starkey and that they were still at the Club.
5. Call charge and cell tower records establish beyond reasonable doubt that the assailants left the vicinity of Woy Woy at about 9:40 pm and drove towards Peats Ridge. It is a journey of approximately 23 minutes within the applicable speed limits. Symons drove a red Holden Commodore with McDonald as his passenger. Robertson drove a silver Calais and his passenger was McDonough. During approximately 13 minutes prior to the assailants' departure for Peats Ridge, James Crane was at the Kentucky Fried Chicken outlet in Woy Woy. Within that interval Robertson drove his vehicle through the driveway of that business. There is insufficient evidence to establish that at that time James Crane communicated with Robertson or with any of the other assailants concerning the whereabouts of Clint Starkey, or what had taken place at the Memorial Club that evening, or the prospect of Mr Starkey being assaulted.
6. Between about 9:42 pm and 9:45 pm Ms Tedder had a second conversation with Clint Starkey at the Club, in which he withdrew his threat against her and her children but maintained it with respect to Colin Crane. Ms Tedder discussed with her co-workers the threats Mr Starkey had made. Some of them offered to have her spend the night at their homes. However, at 9:49 pm Ms Tedder left the Club to drive to her own home. Her manager followed in his own car to ensure that she arrived safely. While driving home Ms Tedder spoke to Colin Crane by phone. Again, she sought to placate him by understating the encounter with Mr Starkey. She told Colin Crane that everything was fine, that Mr Starkey had apologised and that there was nothing to worry about.
7. At 9:53 pm Clint Starkey left the Memorial Club, driven by Simon Rodden in the latter's vehicle. At 9:54:50 pm Mr Rodden sent a text message to James Crane to the effect that Rodden was driving Clint Starkey to the Peats Ridge Caltex. That is what occurred. Messrs Starkey and Rodden arrived two minutes before the service station closing time of 10:00 pm. Having made some purchases they remained on the forecourt after closure and they were still there when the assailants arrived in their two motor vehicles, from Woy Woy, at 10:06 pm.
8. At 9:53 pm two other members of the Peninsula Rebels arrived at the Memorial Club looking for Ms Tedder. I am satisfied that they attended in response to having received information, from some source, concerning Mr Starkey's threats to Ms Tedder. There is no evidence about how far they had travelled to get to the Club or how long it took them or who had provided the information that caused them to go there.
9. Ms Tedder and her manager arrived at Colin Crane's home at about 10:00 pm. With reference to Clint Starkey, Colin Crane said to the manager words to the effect, "I'm going to go find him and kill him". He told Ms Tedder to gather up the children and take them to her mother's house. He then drove towards the Club.
10. By voice calls at 10:00 pm and 10:01 pm, James Crane passed on to Colin Crane that Simon Rodden was taking Clint Starkey to the Peats Ridge Caltex. Colin Crane phoned Symons at 10:04:22 pm and the call remained connected for 32 seconds. Symons was at that time on the road travelling up from Woy Woy, not far from Peats Ridge. His vehicle was in the lead, with Robertson driving the silver Calais very close behind. The two vehicles drove onto the service station forecourt at 10:06 pm within one or two car lengths of each other. At that time Rodden's vehicle was still parked near a petrol bowser and he and Mr Starkey was standing near it. I am satisfied that in his call to Symons at 10:04 pm Colin Crane informed him that Clint Starkey could be found at the service station.
11. Simon Rodden, with Clint Starkey as his passenger, commenced to drive off. Symons drove towards Rodden's vehicle at speed to block its passage. Both vehicles came to a halt, Symons alighted and moved to the passenger door of Rodden's car, hauled Mr Starkey out and threw him to the ground. McDonald got out of Symons' car at the same time and the two of them commenced kicking Mr Starkey on the ground. Robertson had already parked. He and McDonough ran to the driver side door of Rodden's vehicle. When the assault upon Mr Starkey commenced the two of them came quickly around opposite ends of Rodden's car and joined in the attack. All of this was recorded on the service station's CCTV security camera system.
12. When the attack ended after about 30 seconds, the assailants returned to their vehicles and drove away. Mr Starkey was left unconscious on the service station driveway, bleeding from the head. Symons phoned Colin Crane 10:13 pm. I am satisfied beyond reasonable doubt that the purpose of that brief call was to advise that Clint Starkey had been located and had been given a beating. Colin Crane reached the Club driveway at about the time of taking this call but he turned around and left the area. About 29 minutes after the assault on Mr Starkey, Rodden drove him, injured and unconscious, to Gosford Hospital.

The roles and culpability of the assailants convicted of murder

1. In responsibility for forming the joint criminal enterprise to assault Mr Starkey, I can make no distinction between the four assailants. Their respective ages at the time were: Symons 36 years, McDonald 25, Robertson 28 and McDonough 24. Symons had been a full member of the Peninsula Rebels since about 2012 and McDonald since about late 2016. Robertson was a nominee by late 2016 and McDonough was at least an associate from that time. I am satisfied that Symons was the person to whom Colin Crane's request came, directly or indirectly, for the attack to be carried out. But I am not satisfied to any standard of proof that Symons' seniority in the Rebels or any office that he may have held resulted in him motivating or organising any of the other three to take part.
2. Colin Crane had been a Rebels member for nearly 20 years, from 1996, but by 2017 he was not active in the affairs of the chapter on any regular or frequent basis. He clearly maintained connections and lines of communication to currently active members. As a life member he commanded respect from the four assailants. I cannot separate the four in terms of the degree of influence that Colin Crane was able to exert over them or in terms of any ranking as between them.
3. Symons and McDonald played an equal part in the attack. They both kicked and stomped on Mr Starkey and they continued with kicking, punching and kneeing after Robertson and McDonough had walked away. Robertson's participation was the most vicious, commencing with a powerful kick to the head followed by further kicks to the head and shoulder region. After initially desisting from the attack, Robertson returned when Mr Starkey was motionless and evidently defenceless on the ground. Robertson then delivered four distinct, powerful stomps to Mr Starkey's head.
4. It was a premise of the trial that the CCTV and medical evidence is incapable of establishing beyond reasonable doubt which of the four assailants delivered the blow or blows that caused death. Each assailant must be sentenced on the basis that the lethal acts cannot be attributed to him in particular. However, assessment of the objective gravity of each assailant's part in the crime must take account of the number and severity of blows each one delivered. On account of Robertson's four final stomps, his participation was the worst. Symons' and McDonald's contributions were equal and McDonough's was the least.
5. I am not satisfied beyond reasonable doubt, and the jury's verdict does not dictate, that the four assailants agreed that the attack should involve intentional infliction of grievous bodily harm. Symons, McDonald and Robertson foresaw the possibility that really serious injury might be intentionally inflicted by one or more of them. I ascribe the jury's finding of guilt to their application of the extended common purpose doctrine, upon which they were directed in accordance with Miller v The Queen.
6. In sentencing for murder, the fact that a human life has been taken draws a baseline for the seriousness of the crime. However, the accompanying mental state of the offender, which is a factor of objective criminality, may vary greatly. The gravest form is long premeditation with intent to kill. The mental state of Symons, McDonald and Robertson with respect to this murder was at the opposite end of the spectrum. It has not been proved that any of them, individually, intended even grievous bodily harm, only that they saw the possibility that such harm might be deliberately inflicted. In layman's terms, they are criminally responsible because, having agreed only to bash the deceased, each recognised the possibility that really serious harm might be intentionally caused by one of them and that possibility came to pass when one of the group "went too far".

The role and culpability of McDonough

1. McDonough's physical contribution to the attack on the deceased was less than that of the other three. He ran from the driver side of Rodden's vehicle and was the last to arrive at the location where Clint Starkey had been thrown to the ground by Symons. He was also the first to break off from the assault and walk away. The line of sight from the CCTV camera to McDonough is obscured by the positions of the other men but I am satisfied on the balance of probabilities that the number and severity of the kicks that he delivered was less than in the case of the other assailants.
2. McDonough's mental element is of an order significantly lower again than that of the other three, according to the jury's verdict of manslaughter. I was urged to conclude that he joined the enterprise without agreeing that the assault should reach the level of an unlawful and dangerous battery and that the verdict should be taken as a finding that McDonough perceived only the possibility of such an act. I cannot accept that submission. The jury clearly found that all four men agreed to deliver a concerted kicking and stomping attack on a single victim, prostrate on the ground. A reasonable person would perceive an appreciable risk of serious bodily harm flowing from that agreed conduct. The welter of severe kicks and stomps that all four concurred in, with the appreciable risk that it objectively carried, was not just contemplated by McDonough. I am satisfied beyond reasonable doubt that an assault of that nature is what he agreed to. He has been found not guilty of murder only because the jury were not satisfied that he shared with the others their foresight of the possibility that one or more of them might go further, to the intentional infliction of grievous bodily harm.

The role and culpability of Colin Crane

1. I am satisfied beyond reasonable doubt that when Colin Crane spoke to James by phone 9:27 pm he conveyed that he wanted Clint Starkey found and beaten, to teach him a lesson for having threatened Colin and his family and to warn him against any further threats or aggression. That message was communicated to Symons and other assailants by means that cannot be identified with confidence on the evidence. It has not been proved against James that it was delivered by him. There is no doubt that the assailants did not act of their own volition, spontaneously. Of the four of them, Symons was the only one who had ever previously encountered Clint Starkey and his contacts had been fleeting, without giving rise to any hostility between them. The assailants drove up from Woy Woy for the sole purpose of assaulting Clint Starkey. They had no reason of their own for doing so.
2. There is equally no doubt on the evidence that from about 9:30 pm on 5 April 2017 Colin Crane was the one person who had strong reason to wish Clint Starkey harm. I am satisfied beyond reasonable doubt that when Colin Crane spoke to Symons by phone at 10:04 pm he not only advised where Starkey could be found but he also confirmed that he wanted him bashed. The jury were clearly satisfied, and I accept beyond reasonable doubt, that at 10:04 pm Colin Crane knew that Symons or one or more of those accompanying him would intentionally cause grievous bodily harm to Mr Starkey and he intended to encourage that outcome, knowing that as a life member of the Rebels his word would be persuasive with Symons and with such other junior active members as may be accompanying him. The attack on Clint Starkey would not have occurred but for the urging of Colin Crane. Nevertheless, his culpability relative to theirs is differentiated by the fact that he did not himself take part in violence and that it was open to the assailants not to carry out his wishes.
3. I find on the balance of probabilities that Colin Crane was considerably provoked by the conduct of Clint Starkey. Ms Tedder's evidence about Mr Starkey's threats made that evening was corroborated by other members of the Club staff. I also accept that Colin Crane would have been to some extent alarmed, particularly as Clint Starkey had a reputation in the locality for erratic conduct and he had on a previous occasion engaged in a notorious confrontation with police involving firearms. I am satisfied beyond reasonable doubt that Colin Crane did not perceive Clint Starkey's threats as likely to be carried out that evening and he could not reasonably have made such an assessment. He reacted to the provocation because he was already simmering from the confrontation of two days earlier. Acting reasonably he would have notified police of the threats and, if really concerned, retreated with Ms Tedder and their children to her mother's house. Nevertheless, as required by s 21A(3)(c) of the Crimes (Sentencing Procedure) Act, I take the provocation into account in determining an appropriate sentence.

The role and culpability of James Crane

1. I cannot be satisfied on the evidence that James Crane did any more by way of knowing, intentional and/or effective assistance towards the infliction of grievous bodily harm upon Clint Starkey than that he informed Colin Crane by phone at about 10:00 pm that Rodden was taking Mr Starkey to the Peats Ridge Caltex.
2. Three other particulars of assistance, as argued by the Crown, were left to the jury. Two of them concerned James Crane having arranged with Rodden to deliver Clint Starkey to a suitable location for him to be bashed. The Crown did not allege against Rodden a reciprocal part in the alleged arrangement and the jury acquitted Rodden of having joined the four assailants' criminal enterprise. Where the content of phone conversations between James Crane and Rodden is entirely a matter of inference, I am not able to infer the allegedly criminal nature of those conversations, noting the narrowness of the Crown's allegations against Rodden and the jury's complete acquittal of him.
3. The Crown's final particular of accessory conduct by James Crane was that between about 9:27 pm and 9:54 pm, while James Crane was at the Kentucky Fried Chicken outlet in Woy Woy, he informed the assailants, either directly or indirectly, of the whereabouts of Clint Starkey and that he was to be assaulted. This particular is not inherent in the jury's verdict and the evidence is insufficient to satisfy me of it. There was no evidence of James Crane being observed in conversation with any of the assailants during the 13 minutes between 9:27 pm and the departure of the assailants, heading to Peats Ridge, at 9:40 pm. There is no call charge record of a phone conversation from James Crane to any of them, or to any likely intermediary, at that time.
4. The effect of the above findings is that James Crane's contribution to bringing about the fatal assault upon Clint Starkey must be regarded as minimal and he is to be sentenced on the basis that the objective gravity of his part in the crime was of a very low order. He was, in effect, a conduit for one piece of information that enabled his brother to direct the assailants to their target. The motivation and the material encouragement for the attack came from Colin Crane, not from James. Further, I am satisfied that Clint Starkey would have been located on this evening, one way or another, even without the information from James. Colin Crane knew that Mr Starkey was in the area, which is sparsely populated and lightly developed. He knew that there were only a handful of possible locations to which Mr Starkey could have gone after leaving the Club. Having regard to Colin Crane's level of anger and determination, Mr Starkey would have been tracked down and assaulted with or without the phone call from James.

Subjective circumstances of the offenders; procedural considerations

Adam Symons

1. Adam Symons is now nearly 42 years of age. I accept the personal history that he provided to Dr Furst, as recorded in the doctor's report of 26 October 2022. Symons was brought up on the Central Coast of NSW and completed his schooling there. He was exposed to violence at home up to the age of six, including violence by his father towards himself which continued during access visits after his parents separated. Symons and his two sisters were thereafter raised by their mother alone. Symons was diagnosed with Attention Deficit Hyperactive Disorder ("ADHD") when he commenced school. Unsurprisingly against that background Symons exhibited disruptive behaviour at school. His learning was compromised. At the age of 13 he experienced abusive conduct by an authority figure outside the school, which caused lasting trauma.
2. In the face of these obstacles Symons attained only a modest level of education. He worked casually from the age of 14 while at school and he left at age 16. Symons' employment history has been very good since then. He first commenced an apprenticeship in stonemasonry. From the age of 18 he worked seasonally on Queensland cattle stations. Subsequently he has been continually employed in unskilled and semiskilled work, most recently in the building industry. Symons' employer from July 2016 was a building company, whose principal supplied the Court with a supportive reference.
3. Symons used amphetamines intermittently from 2009, when he was 28. He became a regular user of cocaine by 2016, with daily use over the 12 months prior to his arrest on 31 October 2017. At the age of 32, in 2013, Symons was in a relationship with a partner who gave birth to their daughter that year. They separated not long after the child was born. By 2016 Symons had formed a new relationship he has a son from this union, born in April 2017.
4. Symons has no conviction for any offence of violence committed prior to April 2017. He has convictions for driving offences. At the age of 21, in 2002, he was convicted of cultivating a prohibited plant. None of those matters is significant to the determination of his sentence in the present proceedings and none of them give rise to any reservation about his prospects of rehabilitation. Over the five years from when Symons became a member of the Rebels, in about 2012, until the commission of the offence now before the Court, his membership was not associated with offending of the kind that commonly arises from involvement with outlaw motorcycle gangs, such as supply of illicit drugs, assaults, affrays, possession of weapons and so on.
5. In evidence given at the trial Symons asserted that he had approached Clint Starkey in the front passenger seat of Rodden's vehicle at the Peats Ridge Caltex with the intention of merely speaking with him. He said that he saw the barrel of a gun in Mr Starkey's hands and that he hauled him out of the car and beat him as an act of self defence. The jury rejected this. It was a most implausible account. Symons maintained it in the history he provided to Dr Furst. Therein lies a failure on Symons part to acknowledge fully the criminality of his actions. Having regard to other features of his subjective case, his persistence in asserting self defence does not give rise to reservations about his prospects of rehabilitation as it might in different circumstances.
6. Symons joined the Rebels at the age of 33 in the context of a late commencement of drug misuse. Taking into account the adversities of his early home life and the frustrations and limitations arising from ongoing ADHD, I regard his gravitation to the hierarchical structure and close loyalty of an outlaw motorcycle gang as explicable without implying that Symons is inherently antisocial. The absence of significant convictions during his Rebels membership supports that view. The reflexes of loyalty and of compliance with the wishes of a senior Rebels member is the proximate explanation of Symons' involvement in this crime. That provides no excuse or mitigation of culpability but it justifies a conclusion that, provided Symons can break free of the motorcycle gang culture, he is not subject to other criminogenic factors that may dispose him to reoffend.
7. By formulating a sentence, provisionally, on the assumption that Symons has sound prospects of rehabilitation and that he is not likely to resume active Rebels membership or associations with peers who may be disposed to violence, it becomes apparent that even on that favourable basis the sentence he must serve for murder will see him incarcerated without parole for such a number of years that the likelihood of him being under any influence of the Rebels by the time he is released is reduced to nil. Symons has already spent five years on remand, out of circulation with his former associates. The malignant influence of motorcycle club membership, which brought him to the commission of this crime, is probably already spent.
8. With the risk of resumed Rebels connection discounted, on all other measures I assess Symons' prospects of rehabilitation as excellent. His maturing years, his strong record of pre-offence employment, the support of his mother, sisters and partner and the absence of other significant past offending all contribute to that conclusion. In custody Symons has attended group counselling sessions directed to avoidance of re-offending, regularly engaged with the chaplaincy service, refrained from any significant infringements of prison discipline and earned sufficient trust to undertake responsible duties.
9. Symons' sentence should commence from the date of his arrest, 31 October 2017. Before his arrest, on 16 September 2017 he committed a further offence, namely, negligent driving occasioning grievous bodily harm. Symons pleaded guilty and was sentenced to six weeks imprisonment, while already on remand for the murder of Clint Starkey. The offence occurred when Symons and McDonough confronted a person in Woy Woy whom they warned to stay away from an address at which McDonough was residing. McDonough assaulted this person, following which both he and Symons returned to their vehicle. Symons reversed while the victim was close to the near side of the vehicle, then drove away. The victim's leg was trapped under the wheels and he suffered a deep abrasion and a broken ankle. It is significant that criminality was alleged and admitted in terms of negligence only. Having regard to Symons' relatively sparse traffic record I conclude that the six weeks of full-time custody would not likely have been imposed but for Symons being already in prison on remand, which meant that non-custodial alternatives could not be considered. In the circumstances it would be disproportionate to commence Symons' sentence for the murder on a date that would make it cumulative on the six weeks for the offence of 16 September 2017. The six weeks will be wholly concurrent with the sentence now to be fixed.
10. For the purposes of s 44 of the Crimes (Sentencing Procedure) Act I find that there are special circumstances warranting a departure from the default ratio of 75% between the non-parole period and head sentence. Symons' remand in custody prior to trial was unusually long. He had served 4 years and 9 months by the time the verdict was delivered. One year of that was due to the Court having vacated an initial listing of the trial in July 2021. A jury could not be convened at that date due to the Covid 19 public health emergency. The Court must take account of the fact that serving such a significant proportion of a sentence under remand conditions is a measurable additional hardship for an offender. Classification cannot be finalised during remand, rehabilitative programs cannot be fully utilised and a settled routine of serving a sentence cannot be established.
11. Further, during 2½ years of that remand, from early 2020 until mid-2022, the measures that Corrective Services found necessary to reduce the spread of viral infection included cessation of face-to-face family and legal visits, limitation of work and educative programs and frequent lockdowns during which inmates were confined to their cells for many consecutive days. Those conditions left remand prisoners such as Symons with minimal connection to their families and community outside. A prisoner's anxiety about a pending trial is inevitably exacerbated by reduced opportunity to consult with legal advisers. Generally, the conditions described can be taken to have heightened the stress and tendency to conflict within the prison environment. The earliest date upon which Symons may be eligible for release to parole must be brought forward in order to adjust for the length and severity of his remand.
12. Similar considerations contribute to a finding of special circumstances in relation to each of the other offenders, with varying significance according to their dates of arrest, periods of remand and periods of bail (in relation to 3 of them). I will take that consideration into account in each case, without repeating the explanation.

Beau McDonald

1. Beau McDonald is now 30 years old. His parents separated when he was four and thereafter he was raised by his mother, with whom he has always had a close relationship. McDonald has had little contact with his father throughout his life and in recent years contact with his four older half siblings has also been limited. McDonald left school after completing year 10. He was not a good student but he worked part-time during high school years and since leaving he has been continually employed. From the age of 21 he served for some time as a volunteer rural firefighter. McDonald's only break in pre-offence employment was a period of nine months at the age of 23-24, following a serious motor vehicle accident. Upon recovering from his injuries McDonald commenced work as a concreter and continued in that line until his arrest for the offence now before the Court, on 21 December 2017.
2. McDonald has one prior conviction, from 2012, of no present significance. He joined the Peninsula chapter of the Rebels in 2016. I accept his explanation that he did so "for brotherhood, to hang out and have friends". As with Symons, up to the date of his arrest McDonald's membership of the Rebels was not associated with offending of the type that is characteristic of such groups. McDonald told the psychologist who prepared a report on his behalf that he has severed affiliation with the club since about the end of 2018. For reasons similar to those given in relation to Symons, I do not consider it likely that he would have any continuing connection with an outlaw motorcycle gang by the time he is eligible for release to parole.
3. I find McDonald's prospects of rehabilitation to be excellent. He has continued to exhibit his work ethic in prison and has been commended for cooperative conduct, for assistance to fellow prisoners and for trustworthiness. On one occasion in May 2018 McDonald intervened to prevent the escalation of a serious assault on a Corrective Services officer. That would in any circumstances be a courageous act for an inmate. His quick action in that incident testifies to a basic decency and shows that his involvement in the offence before the Court was out of character. He is unlikely to re-offend.
4. In August 2017 McDonald's mother, then aged 65, suffered a stroke which left her weakened on one side and confused. Initially McDonald and his then partner and their children moved in with her to provide care. McDonald's mother was subsequently hospitalised for an extended period, during which McDonald was arrested. McDonald's relationship with his then partner ended during his remand in custody. He has had little contact with his two young children over the past five years. He commenced a second relationship during a period of bail and his new partner is now expecting their child in December this year. Loss of contact with all of these close family members and inability to provide support to them has compounded the strain of McDonald's first time in prison, which commenced for him at age 25. This has taken a considerable psychological toll on the offender and contributes to my finding of special circumstances.
5. Physical ailments have also made McDonald's incarceration additionally burdensome and will continue to do so. He suffers from very high blood pressure, heart murmur and asthma. His psychologist has identified current symptoms of depressive disorder and post traumatic stress disorder. I accept that the symptoms are present in some degree but I am not satisfied on the balance of probabilities that they support a diagnosis of post traumatic stress disorder. The psychologist describes confronting experiences to which McDonald has been exposed but I find that there is insufficient factual support and an absence of persuasive, suitably qualified opinion to sustain the diagnosis.
6. In consultation with his psychologist McDonald maintained the claim, which he made in evidence before the jury, that he acted in self defence. I take the same view of this as in Symons' case. It is a failure to accept the criminality of his conduct but this blemish should not stand in the way of McDonald receiving full credit for positive indicators that he will be fully rehabilitated.
7. McDonald was remanded in custody for 3 years and 11 months, from 21 December 2017 until he was released on bail on 8 November 2021. While on bail he complied with restrictive conditions and returned to work. Upon revocation of his bail when the verdicts were returned, McDonald resumed work and good conduct in prison.
8. McDonald's sentence will be backdated to allow for the period that he has already served in custody. The Crown and the offender's counsel accept that the commencement date should be 8 September 2018.

Guy Robertson

1. Guy Robertson is now nearly 34 years old. He has given his psychologist an account of a disadvantaged upbringing in which neither of his parents worked, both smoked cannabis regularly and both were physically aggressive and violent, often towards himself. The family occupied social housing in a community in which violence was not uncommon. Robertson told the psychologist that he did not feel safe in his home environment and that he developed an underlying anxiety that persisted throughout his teens and has continued into adult life. He described his conduct at school as characterised by fighting and truanting, with consequent lack of learning. He left school at the age of 15. He would have acquired only a rudimentary education and he has not subsequently trained for any employment skills. Robertson's work history has been intermittent, with no jobs held for longer than six months and some being terminated after altercations with employers. Robertson has been dependent upon welfare benefits.
2. The Court has no reason to doubt this narrative of Robertson's background. His criminal history is adverse to his plea for leniency. In 2008, at the age of 18, he was convicted of failing to leave premises when required and of assaulting and hindering a police officer, all in connection with one incident. Those matters were dealt with by way of a supervised bond. More significantly in February 2011 at age 21 he committed multiple offences of aggravated breaking and entering, for which the longest sentence imposed was 2 years and 3 months with a non-parole period of nine months. The non-parole period was served from November 2011.
3. I accept Robertson's claim that he has "reflected on his affiliation [with the Rebels] and recognised that it is not helpful for him [and] that he is 'over it'". For the reasons given in relation to the other offenders who are now to be sentenced for murder, upon Robertson's release to parole I do not expect that his rehabilitation will be impeded by any continuing connection with the Rebels. Other factors cause me to hold reservations about his future conduct.
4. Robertson has asserted to his psychologist that he acted in self defence. He did not give evidence in the trial and, although self defence was argued on his behalf in reliance upon the evidence of Symons and McDonald, the argument was clearly and understandably rejected by the jury beyond reasonable doubt. Robertson's maintenance of this contention negates the value of his limited expression of remorse. He has offered a letter of regret directed to Clint Starkey's parents. Because he maintains the justification of self defence, the letter is not an acknowledgement of responsibility. This is, to a limited extent, negative to his prospective rehabilitation. Other negative factors are more significant, in particular, his past criminal record, the absence of employment skills, the lack of work ethic and work experience and the offender's entrenched tendency to aggression and violence in association with his anxiety.
5. Robertson's conduct in prison has been poor, with disciplinary offences recorded against him of intimidation, possession of an offensive weapon, inciting a riot and disobeying a direction. In having regard to that prison misconduct I make some allowance for the exceptionally stressful conditions of Robertson's remand under the Covid 19 was an regime. He is currently facing a serious charge of assaulting a Corrective Services officer on 17 February 2022, in company with another inmate. As that matter is defended and has not yet been determined, I do not take it into account for present purposes. If the charge is ultimately proved it may result in a cumulative sentence and it would likely be taken under notice by the State to Parole Authority when Robertson becomes eligible to be considered for release. Robertson's record of prior convictions, his prominent participation in the assault that led to Mr Starkey's death and his poor conduct in custody combine to bring specific deterrence to the fore as a consideration in fixing his sentence
6. Robertson has been on remand in custody from when he was arrested on 21 December 2017. His term of imprisonment will commence from that date. He is entitled to recognition of special circumstances and shortening of his non-parole period, for the reasons earlier given.

Jake McDonough

1. McDonough is 30 years old. A psychologist's report tendered on his behalf contains his account of a disadvantaged childhood involving poverty, violence of both parents towards himself and each other, parental separation and further violence at the hands of his mother's subsequent partners. He says that his mother was a drug addict. He witnessed frequent criminal violence of people close around him throughout his childhood and teens. McDonough's psychologist identifies features of his current presentation that are said to be consistent with post-traumatic stress disorder but the evidence of symptoms and the opinion expressed are not sufficient to satisfy me that the diagnosis could be made.
2. McDonough's habit of fighting manifested commenced his school years. At one school he suffered misconduct towards himself by a teacher and for a time, at the age of 16, he was placed in the temporary care of the State. Despite all of this McDonough completed year 10 at school, without expulsion, and commenced an apprenticeship as a carpenter. He did not complete the apprenticeship but was consistently employed until his arrest in a variety of labouring and semi-skilled roles. An employer for whom he worked for about 18 months up to the date of arrest spoke highly of him at his sentence proceedings and is prepared to re-employ him.
3. I accept McDonough's account of his background and his explanation that he joined the Rebels in 2016 in pursuit of a sense of belonging, which had been notably absent in his upbringing. McDonough's criminal record does not entitle him to leniency. He committed an assault occasioning actual bodily harm in 2011 at age 18, assaults upon police officers in 2014 and 2015 at ages 23-24 and a further assault occasioning actual bodily harm in March 2016. The last mentioned assault was unprovoked and severe. McDonough slammed the victim's head onto a pavement, rendering him unconscious for an extended period. This resulted in imprisonment for 11 months with a non-parole period of 4 months. That expired on 27 March 2017. McDonough had been on parole for only one week when he took part in the attack on Mr Starkey. Pursuant to s 21(2)(j) of the Crimes (Sentencing Procedure) Act I am required take into account that the manslaughter for which he is now to be sentenced was committed while McDonough was on conditional liberty.
4. On 16 September 2017, prior to being arrested for the attack on Mr Starkey, McDonough assaulted the person to whom Symons then caused injury by negligent driving. McDonough was arrested and charged with Mr Starkey's murder on 21 December 2017. During his remand was sentenced to 3 months imprisonment for the assault of 16 September. The sentence now to be imposed for the manslaughter of Clint Starkey should be wholly cumulative on the 3 months. The common assault of 16 September was an unrelated instance of street violence. Having regard to McDonough's prior record and his breach of parole, a penalty short of full-time custody would not likely have been contemplated by the magistrate for that assault. McDonough's sentence for manslaughter will therefore commence from 21 March 2018.
5. McDonough's conduct in custody has been poor. It has included intimidation, assaults and fighting. In assessing this conduct I make allowance for the increased stress that all mates have been under in the restrictive Covid 19 conditions of remand. I accept that those conditions have brought out the worst in many and that McDonough's prison infringements are not a definitive guide to what may be expected of him when he returns to the community. Nevertheless, his entire record indicates a heightened need for specific deterrence which must factor into the head sentence that is now to be imposed. In determining the non-parole period I recognise, as special circumstances, both the stringent conditions of McDonough's long remand and the fact that he suffers sleep apnoea and epilepsy that create a measure of hardship for him in prison. Also, McDonough's reintegration into the community is likely to be assisted by a longer period of supervision on parole. I find that he is unlikely to resume active involvement with the Rebels. Extended supervision would support him in maintaining distance from his former Rebels associates. Under those conditions his prospects of rehabilitation and of avoiding future criminal conduct are very reasonable.
6. At an early stage McDonough offered a plea of guilty to manslaughter. He maintained that plea before the jury panel. Through his counsel in final address he continued to accept liability for manslaughter. In arriving at a starting point sentence I take account of the acceptance of responsibility and the demonstration of remorse that are implied by McDonough's plea and by the conduct of his defence. He is also entitled to a 25% reduction of what otherwise might be his sentence, to allow for the utilitarian value of having offered to accept conviction for manslaughter.

Colin Crane

1. Colin Crane is now aged 55. His childhood was disrupted by parental separation when he was about five years old. He suffered abusive treatment by a stepmother over subsequent years. Despite the insecurity of his family life he completed high school, in the face of learning difficulties. The level at which he left school is not stated in the psychologist's report by which this background information has been provided. During mid teens Colin Crane was the victim of misconduct by a high school teacher and by an officer at Mount Penang Juvenile Justice Centre, where he was in detention - for what offence is not explained. In the opinion of his psychologist those experiences affected Colin Crane's mental health in the long-term, giving rise to anxiety, irritability, tendency to anger and symptoms that the psychologist associates with Complex Post Traumatic Stress Disorder.
2. Colin Crane worked in unskilled occupations for about five years after leaving school but thereafter, in his early 20s, he commenced to receive welfare benefits and he has never worked again. It is not clear what long-term illness or disability initially qualified him for Social Security support. He as apparently continued to receive benefits for about 30 years. Colin Crane is currently in generally poor health and has been so for some years prior to his arrest. He used illicit drugs to a moderate extent from the age of about 14 and he abused alcohol heavily over many years from then until age 45, in about 2012. His diagnosis of Bipolar Disorder has been mentioned earlier in these remarks. In addition he has suffered from Major Depressive Disorder for some years prior to April 2017. He was maintained on medication for both of those mental conditions before his arrest and the prescriptions have been continued in custody. Colin Crane's physical ailments include very severe sleep apnoea, osteoarthritis, chronic joint pain and a tendency to partial seizure. The latter is managed with anticonvulsant medication. I accept that his mental and physical disorders, whilst manageable in prison, will render his confinement more burdensome than it would be for an inmate in better health.
3. Colin Crane joined the Rebels in 1996 at the age of 29 and claims to have been "retired" since about 2016, although I am satisfied that in 2017 he was still recognised by the then current members as having life member status. He has no relevant prior convictions and has committed no significant prison disciplinary infringements during his periods of remand. He was arrested on 21 July 2018 and remained in custody until bail was granted on 12 November 2021, a period of 3 years and 4 months. For seven months from 12 November 2021 until 29 July 2022 he was on bail under restrictive conditions, with which he complied fully. I see no significant risk of Colin Crane reoffending. That conclusion is reinforced by the continued support of his partner, Ms Tedder, with whom he has been a relationship since about 2009 and with whom he has two young children. Colin Crane also has two children in their early 20s from a previous relationship.
4. Special circumstances justify a reduction in the non-parole portion of Colin Crane's sentence. One and a half years of his remand was subject to the difficult conditions referred to earlier in these remarks and his medical conditions will exacerbate the hardship of custody.

James Crane

1. James Crane is now 57. He shared the disrupted family background described in relation to his brother Colin. After their parents' separation James remained living with his father until he left home at the age of 17. He thus endured his hostile, alcoholic stepmother for longer. He was the victim misconduct of a teacher at school and of friends of his father. The psychologist to whom James Crane provided this history made the following assessment, which I accept: [Antisocial] behaviour was normalised throughout his childhood and […] alcohol abuse was common amongst the parental figures. […] Overall, Mr Crane experienced a deprived and traumatic childhood, in which he was exposed to antisocial behaviour and formed an insecure sense of self. Given these experiences, he has failed to capitalise on opportunities made available to him and has resulted in him forming attitudes which set him on his own antisocial trajectory.
2. The psychologist assessed James Crane as "of low-average intelligence" and his learning at school was evidently further impaired by behavioural dysregulation. He left school early in year 8 and he has only become literate through his own efforts during adulthood. James Crane's low level of educational attainment has no doubt contributed to him being unemployed for most of his adult life. He has had some casual unskilled work but has mostly been supported by a disability pension.
3. During the 1990s, from age 25 to 35, James Crane was a prolific user of illicit drugs and he associated with friends who came from similarly dysfunctional backgrounds and who gravitated to criminal activities. At age 28, in 1993, James Crane joined the Rebels. He remained a member until 2015 when he retired, which I take to mean that he ceased participation in any club activities.
4. From his early 20s (1985-1990) James Crane has convictions for offensive behaviour, assaults and malicious injury. He committed no further offences of violence or disorder until 2010, at age 45, when there was an assault occasioning actual bodily harm in a domestic violence context. In September 2016 he intimidated a female partner with whom he had broken off a relationship, by sending threatening text messages. There is a very low probability of James Crane reoffending in a violent manner. His limited involvement as an accessory in the present case was likely the product of loyalty to his brother rather than a connection with the Rebels. In any event, association with the Rebels is unlikely to be a criminogenic influence following his release, especially taking into account his relatively minor past record, his age and his physical condition. As to the latter, James Crane suffers from sleep apnoea, atrial fibrillation and elevated blood pressure. Regular medication is required for those ailments. While they give rise to anxiety about adequacy of treatment in prison, they do not appear to exacerbate the offender's conditions of incarceration.
5. James Crane was remanded in custody from his arrest on 30 April 2019 until he was granted bail on 27 October 2021 (2½ years). One and half years of that was subject to Covid 19 lockdowns and restrictions on visits and programs. James Crane complied with restrictive bail conditions for nine months from 27 October 2021 until the return of the jury's verdicts. His sentence should commence from 28 January 2020 to make due allowance for time served. In fixing his non-parole period I take into account the long remand under difficult conditions. I do not consider it justified to reduce his sentence directly on account of the time spent under restrictive bail conditions but his adherence to those conditions is given full weight in assessing his progress towards rehabilitation and in evaluating the improbability of further offending.

Orders

1. There are differences between these offenders in objective criminality of the part that each one played, in their relative prospects of rehabilitation, in the extent to which specific deterrence is called for and in their respective claims to lenience based on past conduct. Those differences are reflected in the sentences that are now pronounced:

Adam Symons For the murder of Clint Starkey Adam Symons is sentenced to imprisonment for a term of 18 years commencing on 31 October 2017 comprising a non-parole period of 12 years expiring on 30 October 2029 and a balance of term of 6 years expiring on 30 October 2035. The first date on which Adam Symons will be eligible for release to parole is 30 October 2029.

Beau McDonald For the murder of Clint Starkey Beau McDonald is sentenced to imprisonment for a term of 17 years and 6 months commencing on 8 September 2018 comprising a non-parole period of 11 years and 6 months expiring on 7 March 2030 and a balance of term of 6 years expiring on 7 March 2036. The first date on which Beau McDonald will be eligible for release to parole is 7 March 2030.

Guy Robertson For the murder of Clint Starkey Guy Robertson is sentenced to imprisonment for a term of 19 years commencing on 21 December 2017 comprising a non-parole period of 13 years expiring on 20 December 2030 and a balance of term of 6 years expiring on 20 December 2036. The first date on which Guy Robertson will be eligible for release to parole is 20 December 2030.

Jake McDonough For the manslaughter of Clint Starkey Jake McDonough is sentenced to imprisonment for a term of 7 years and 6 months commencing on 20 March 2018 comprising a non-parole period of 5 years expiring on 19 March 2023 and a balance of term of 2 years and 6 months expiring on 19 September 2025. The first date on which Jake McDonough will be eligible for release to parole is 19 March 2023.

Colin Crane For the murder of Clint Starkey as an accessory before the fact Colin Crane is sentenced to imprisonment for a term of 16 years commencing on 8 April 2019 comprising a non-parole period of 10 years and 9 months expiring on 7 January 2030 and a balance of term of 5 years and 3 months expiring on 7 April 2035. The first date on which Colin Crane will be eligible for release to parole is 7 January 2030.

James Crane For the murder of Clint Starkey as an accessory before the fact James Crane is sentenced to imprisonment for a term of 6 years commencing on 28 January 2020 comprising a non-parole period of 4 years expiring on 27 January 2024 and a balance of term of 2 years expiring on 27 January 2026. The first date on which James Crane will be eligible for release to parole is 27 January 2024.

All offenders The Crimes (High Risk Offenders) Act 2006 (NSW) is applicable to the conviction of each offender for murder and, in the case of McDonough, manslaughter. The operation of that Act will take effect from the completion of each sentence. Counsel will explain the significance of that to their respective clients.

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: 11 November 2022