R v Hawkins

Family impact statements

1. Before proceeding with the analysis necessary to sentence the offender I wish to say something about the family impact statements provided by Mr Denniss' mother, brother, sister, daughter and partner Taylah.
2. These were touching and heartfelt words about Mr Denniss who was clearly a much-loved member of his family. He was the father of five children and a hard-working and loyal son, brother, father and partner. His eldest daughter Paris spoke movingly of their bond and his love and support for her. His mother spoke of her terrible sense of loss and her distress that she had been at his home only hours before and that maybe things would have been different if she had stayed at his house longer that day. She describes her family as "torn to bits" and "will never recover". Wade Denniss spoke of the emotional distress he continues to bear and his anger at how his brother died and the overwhelming sadness he carries with him as a result of the senseless death of his brother.
3. Taylah Lethbridge describes her distress at having the love of her life die in her arms and not being able to save him. Her baby girl Bella has been left without her father and Ms Lethbridge has been left utterly devastated. On behalf of the Court I extend my condolences to the family for the loss they have endured and will continue to endure. No sentence can ever be adequate to address that loss.

What occurred on the afternoon of 8 December 2018

1. Mr Denniss and the offender knew each other through a man called Scott Woodward. Mr Woodward was Mr Denniss' stepbrother and the offender's best friend. In the previous weeks Mr Denniss had borrowed a motorbike from Mr Woodward so that he could travel to work. The ownership of the motorbike seems to have been a vexed question, it having been previously traded for cash and a cannabis plant, but evidence before the jury demonstrated that a few days before 8 December 2018, Mr Denniss expressed an intention in a text to Ms Lethbridge, to keep the motorbike.
2. There are two different accounts as to what occurred on 8 December 2018 at 19 Beauford Avenue, Maryland, when the offender went to retrieve the motorbike and when he returned about an hour later with a firearm.
3. The first account the jury heard was given by Taylah Lethbridge. I accept that she was in the backyard and present when the first confrontation occurred at about 3:00pm that day although I have significant doubts about what she was in a position to see during the second confrontation an hour later involving the firearm.
4. The second account was given by the offender.
5. Both Ms Lethbridge and the offender were cross-examined at length about what they saw and heard and did. I was left with the distinct impression that Ms Lethbridge shaped her account to create a negative picture of the actions of the offender and an entirely positive picture of Mr Denniss. Her evidence that during the first exchange at about 3:00pm she did not see or hear anything that comprised any aggression or physical or verbal threat on the part of Mr Denniss struck me as most unlikely given her evidence about the closeness of her position in the backyard to what occurred at that time and the content of that exchange.
6. Ms Lethbridge's evidence regarding what she says occurred in the garage and in the seconds before and at the time of the shooting, I do not accept. To the extent it suggested that the offender lured Mr Denniss out so that he could deliberately aim and shoot him dead, the jury verdict indicates that it is likely also to have rejected that evidence.
7. Her evidence that she and Mr Denniss had their arms around each other cuddling and that they both "shuffled" together into the doorway of the garage, and that she then saw the offender crouch, steady the firearm on the fence gate, (13 metres away) aim and fire, I do not accept.
8. In reaching these conclusions, I am not being critical of Ms Lethbridge. It was an extremely traumatic afternoon for her and one she has no doubt relived many times. She could not explain the position of the home-made mace on the floor next to Mr Denniss and its presence there is critically inconsistent with her account. The account she gave in her evidence to the jury was different again to versions she had given in her earlier statements to the police. In the course of proceedings such as this, memory can be distorted although innocently so. As McLelland CJ in Equity noted in Watson v Foxman (1995) 49 NSWLR 315 at 319: "…human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
9. The offender's account struck me as bluntly honest. He was thoroughly and skilfully cross-examined and his answers remained direct, consistent, plausible, and had the ring of truth.
10. Significantly, his account is supported by a number of subtle but telling features of the physical evidence. This physical evidence is shown in images from body worn camera footage taken by police within minutes of the shooting, seen by witnesses, demonstrated in the crime scene photographs and evidence, and located by police when they returned to the scene the next day.
11. The home-made mace lying close to Mr Denniss' body was never explained by the Crown case. This is a significant piece of evidence that provides undeniable support for the version given by the offender.

The credibility of the offender

1. Before turning to the findings I have made as to what occurred that day, I will deal with a submission made by the Crown regarding the offender's credibility.
2. The Crown submitted that the offender should not be accepted as a witness of truth because he is "a demonstrated and admitted liar". Whilst at its most facile that description could be said to apply, but when the circumstances relied upon by the Crown to illustrate that assertion are examined, the reality is more complex and the lies relied upon limited in their reach.
3. It is true the offender told a couple of transparent and silly lies to a doctor and nurse whilst in police presence at the hospital having his wound stitched at about 6:30am on 9 December 2018 and then later that morning at the police station. As is clear from the exchange which was not part of a formal police interview but from body-worn camera footage captured at the station at about 9:33am, the offender told police that he did not want to be interviewed. He was asked: D/Sgt Golledge: So, before I go too much further, you are aware that you have been placed under arrest in relation to the murder of Kenneth Denniss? Accused: Yeah. D/Sgt Golledge: Is that correct? Accused: Yeah. D/Sgt Golledge: And that, that occurred at 32 Raglan Crescent, Wallsend. Is that correct? Accused: Yeah. D/Sgt Golledge: Yeah. So, is it the case, you're saying that your time, at the time you were arrested at Raglan Street, you were informed of, of why you were being placed under arrest? Accused: Well, I just had been shown stuff that people were talking about it on Facebook, accusing me of that. And, then I got woken up saying the police were there. D/Sgt Golledge: Okay. Accused: And, like, that's where I thought that I've been accused of that and that's why I got (Indecipherable). D/Sgt Golledge: Okay, So, so is it the case you don't wish to be interviewed? Accused: No. D/Sgt Golledge: Sorry that's? Accused: No.
4. I accept that the statement that he "did not know anything about it" except "what he read" was a clumsy attempt by the offender at deflection by an unsophisticated, inarticulate man who basically waited at home for the police to come and get him. He had shot someone he knew in broad daylight, arriving in a traceable vehicle, having obtained a lift there with a friend of his partner, and being entirely recognisable to Ms Lethbridge who immediately named him as the person responsible for the shooting.
5. The offender explained in his evidence that he did not think anyone would believe what had happened. He was in police custody, unsure of his rights. He was still in shock, had not been able to speak to a lawyer and did not know the law.
6. The lie at the hospital at about 6:30am (3 hours prior to the police body-camera footage) as to how he sustained the cut on his elbow was a manifestation of the same thing. I accept that there were police officers in his immediate presence and so whatever was said would likely be overheard by them. He had not had legal advice and he did not think anyone would believe what had happened.
7. I conclude that the offender's behaviour is entirely consistent with the offender being shocked, frozen and overwhelmed by what he had done.
8. The only other lie relied upon by the Crown to support the submission that I should reject all of his evidence as untruthful, was the offender telling Dr Furst that he had had a cardiac arrest in the ambulance in 2016 after he had been viciously bashed and in effect left for dead in the bush behind Wallsend. He sustained fractures to his leg and face and his motorbike stolen by a group of unknown assailants. He crawled to the roadway and was rescued by passers-by. He was asked: Q: What was your position in terms of whether you had a cardiac arrest or not? A: I just, I thought that, I had been told that I had one. I literally believed that I did have one because I remember I asked Leanne to look up what a cardiac arrest was, and then I was like, I didn't get my, what happened in the end, worse or better or, I actually believed it until I heard recently that it didn't happen. Q: So, from the evidence that has been given in this Court you now realise you didn't have a cardiac arrest? A: Yeah. Q: But is it your evidence you always thought you had had ‑‑ A: Whenever I was talking about what happened to me I would always mention all the injuries and that I went into cardiac arrest, but, yeah.
9. He was pressed on this matter in cross-examination and I found his answers to be both plausible and candid. He thought someone had told him that at the hospital, he does not know why he thought that, and that he: "literally for a couple of years after, if I ever spoke of what happened to me I would always state it". He did not think saying that he had a cardiac arrest was going to make what happened to him on that night in the bush any worse. He rejected the suggestion that he wanted to make what happened in the bush sound worse answering "I didn't need to". Given the vicious and terrifying nature of the attack and the serious injuries he sustained, I find that answer is an entirely credible one.
10. The lies are explicable and naïve. The deflections made in response to the police questions and the account given to the doctor and nurse in the presence of police are nothing more than that, deflections. He thought he had had a cardiac arrest. It was a misunderstanding. I do not conclude that that was a deliberate lie at all. None of this leads me to the conclusion that I should reject the accused's account of what happened on the afternoon of 8 December 2018 and I reject the submission that those matters should affect my assessment of the accused's credibility in any significant way.

Findings

1. I make the following findings as to what occurred at 19 Beauford Avenue Maryland on the afternoon of 8 December 2018:

• The offender walked down the driveway and through the open gate to 19 Beauford Avenue, Maryland with a "slurpee" cup in his hand. He was not anticipating any hostility from Mr Denniss to be associated with asking for the return of the motorbike.
• Unknown to the offender, Mr Denniss planned to keep the bike, as evidenced by the text message sent to his partner Taylah Lethbridge on 6 December 2018 (Exhibit 3).
• The offender made some joking comments to Mr Denniss that he was "washing the bike for him" and had "put stickers on it for him" and whilst doing so, Mr Denniss swung at the offender's neck and face with an open pocket knife with the blade exposed.
• The offender avoided the first swing and put his arm up to avoid the second swing and was stabbed on his left forearm near the elbow.
• The offender retreated, and as he fled the deceased said "You're a dead cunt" and "I'll be coming to get you for coming here".
• The wound inflicted upon the offender later required seven stitches.
• Within a very short time of stabbing the offender, Mr Denniss made an angry and abusive phone call to Scott Woodward that entailed amongst other shouted remarks "send cunts to my place…".
• The offender returned to the place where Scott Woodward lived, a granny flat at 4 Kenneth Street, about five minutes' drive away.
• The offender told Mr Woodward that Mr Denniss was "going off" because he went there. Mr Woodward told the offender that Mr Denniss said in the phone call they had just had that Mr Denniss "had people who were going to come and get us".
• The offender asked Mr Woodward if he thought Mr Denniss would go to where his kids were and Mr Woodward replied "yeah he probably will because he is a fucking psycho".
• The offender was worried that Mr Denniss would possibly go to where his children lived and carry out some act of violence. He had seen Molotov cocktails in a car Mr Denniss was travelling in the week before and saw Mr Denniss had a bat taped to his hand and was looking for someone. I accept that the offender was concerned that his children would be hurt by Mr Denniss.
• The offender planned to return to Mr Denniss' house to try and intimidate him and to "make him think twice about going anywhere near where my kids were".
• The offender obtained a firearm which was in a backpack with ammunition in a cupboard at Scott Woodward's granny flat.
• The offender went to 19 Beauford Avenue and yelled out "Oi cunt". Music that was playing at that time was turned down or off.
• The driveway between the offender's position when he fired and the position of the garage doorway where Mr Denniss was shot, sloped downwards.
• The offender heard a noise from the garage that sounded like things being moved around and he became fearful and crouched down near the car parked at the top of the driveway. He became apprehensive that Mr Denniss was obtaining a gun and he knew Mr Denniss was a person who had access to guns.
• The noise that the offender heard was consistent with Mr Denniss retrieving the homemade mace from a position in the garage.
• The garage door flew open suddenly and the offender saw Mr Denniss take one or two steps carrying something in his right hand which was wooden and silver.
• The offender thought it was a gun and that Mr Denniss was about to shoot him with it.
• The offender picked up the backpack and lifted the firearm he had and pointed it in the direction of Mr Denniss and pulled the trigger. He was trying to "get Mr Denniss in the leg …to stop him". He thought that he was aiming low. He did not see Ms Lethbridge at this time.
• The offender thought that this was what he had to do in the pressure of that moment to stop Mr Denniss from aiming what the offender thought was a firearm at him and shooting him.
• The offender's belief as to what was necessary to defend himself and his family was informed by the effects of his post-traumatic stress disorder which still affected his perceptions of risk and threat by amplifying those perceptions of risk and threat. I accept in full the opinion of Dr Furst, Psychiatrist, on this issue.
• I accept Dr Brouwer's evidence about the findings made on autopsy that the bullet trajectory was front to back and downwards and that internal injuries included lacerations to the right common carotid artery and right internal jugular vein, and to the trachea and windpipe. There was also a laceration to the oesophagus, the immediate effects of which would be bleeding into the stomach and blood being eventually vomited through the mouth.
• These findings on autopsy are in my view consistent with the offender's evidence that he aimed low and that he saw Mr Denniss "spew blood".
• I accept that at the point when he saw Mr Denniss "spew blood", the offender turned and ran away in shock and horror at what he had done.

The objective gravity of the offence

1. The offender offered to plead guilty to manslaughter on the basis of excessive self-defence at a case conference when the matter was still in the Local Court. This was not accepted by the Crown in full satisfaction of the indictment and the trial proceeded in respect of all issues, including whether he was guilty of the offence of manslaughter.
2. In his evidence the offender denied that he had any intention to kill or injure Mr Denniss. Counsel for the offender submitted that the Court could not be satisfied beyond reasonable doubt that the offender had an intention to kill the deceased when he discharged the firearm, despite the location of the wound and its mortal nature. I do not infer that the location of the bullet wound in the chest of Mr Denniss evidences intent to kill. I accept that the trigger was pulled in a panic. I accept the offender had never shot a gun before. I accept that the weapon used was a shortened firearm. The difficulty with aiming such a weapon was explained in the evidence of Sgt Dusting, that being there are no "sights" to line up. The offender was over 13 metres away from Mr Denniss when he pulled the trigger and the photos of the scene show that the driveway sloped downwards towards the garage.
3. The Crown submitted that I should find that Mr Denniss was not armed at all and that the offender aimed the firearm at the victim and shot him with the intention of at least causing him really serious injury, but more likely with the intention of killing him.
4. I reject the Crown's submission to that effect. First, it would be inconsistent with the jury's verdict of manslaughter, but second, it is not consistent with the facts as found by me that Mr Denniss was in fact armed with the home-made mace which the offender mistakenly thought was a firearm.
5. Despite the offender denying that he had formed in his mind an intent to kill or an intention to cause really serious bodily injury, I infer that he had enough deliberateness of thought and action to aim the gun towards Mr Denniss although aiming low. His answers in cross-examination support the availability of this inference: Q: You say that you pulled the trigger, you aimed the firearm at him, didn't you, when you did that? A: Yes. Q: You meant to hit him, didn't you, with the bullet? A: Only because I thought he was about to shoot me, yes. Q: You meant to hit him with the bullet, didn't you? A: Only because I thought he was about to shoot me, yes. Q: That's a "yes"? A: Yes. Q: When you pulled the trigger, you intended to stop him, didn't you? A: No. Q: To injure him to take him out, didn't you? A: I didn't ‑ I'd never shot a gun before so I didn't know, I just, I didn't, yeah, think of that at the time, no. Q: You knew how to pull the trigger, didn't you, Mr Hawkins? A: Well, yes. Q: You knew that a bullet would be discharged. At least that's what you hoped, isn't it? A: Yes. Q: You knew, didn't you, how a firearm worked? A: Only from being shown, yes. Q: And you knew that if you pulled the trigger, a bullet would come out? A: Yeah. Q: And you knew, didn't you, that shooting a bullet at someone was going to cause really serious injury or death, didn't you? A: I didn't think I was going to shoot anyone. Q: No, at the time that you pulled the trigger I'm suggesting, you knew at the time you pulled that trigger that a bullet would be discharged and cause really serious injury or death? A: No. Q: And you pointed it at him, didn't you? A: Yes. Q: You meant to hit him? A: Well, I shot in his direction, yes. Q: You shot him in his direction? A: Yes, at him, yes. Q: You meant to hit him with a bullet, didn't you? A: Only because he ‑ I thought he was literally about to shoot me. I thought he was going to shoot me. Q: But you meant to hit him, didn't you, when you shot him? A: Yes. Q: And even if you shot him in the leg, you accept that could be really serious injury to someone, wouldn't you? A: Yes but I didn't think he would die, and I thought it would stop him from shooting me and killing me. Q: Because if you hit someone with a bullet, even a leg, that could cause a lot of injury and bleeding to the person, couldn't it? A: Yes. Q: You knew that? A: Yes. Q: What I'm suggesting to you is, at the time you pulled the trigger and discharged the firearm, you meant to shoot him, to get him? A: Yes because I thought he was about to shoot me, yes. Q: And intending to shoot him, you intended to cause him really serious injury or death? A: No. Q: When you say no, Mr Hawkins, do you say, do you, that aiming a firearm at somebody and pointing and discharging it, you didn't mean to injure him? A: Well, it was not my plan to, no, but once I panicked and I thought he was going to shoot me, that's the only time I decided that I was going to shoot and hit at him, hoping to stop him from shooting me, yes. Q: And at that time, you knew it would really injure him and hit him at the very least? A: Yeah, it would hit him, yes. Q: Which is what you were aiming for, wasn't it? A: Yes.
6. The answers given in this carefully structured and focused cross-examination do not support a conclusion that the offender had an intention to kill when he pulled the trigger. However, the effect of the answers he gave, leads me to be satisfied beyond reasonable doubt, that in aiming or pointing and discharging the firearm as he did, despite how he did or did not articulate his intention in his own mind, I can and I do infer that there was, beyond reasonable doubt, an intention to cause grievous bodily harm to Mr Denniss.
7. As required by the authorities, and despite neither the Crown nor the defence requesting it, I also instructed the jury that it was a matter for them as to whether, should they not find an intention to kill or cause grievous bodily harm, the circumstances corresponded to the crime of manslaughter by unlawful and dangerous act.
8. If follows that the jury's verdict of manslaughter is potentially explicable on two bases. The first is manslaughter by an unlawful and dangerous act, but that can be put to one side, given the finding as to intent to cause grievous bodily harm that I have made in [41] above.
9. The second basis is excessive self-defence. The jury's verdict is consistent with their having accepted the offender's assertion that he believed that shooting Mr Denniss was necessary to defend himself, but having found that was excessive in the circumstances. The offender is to be sentenced on that basis.
10. The law excuses offences, even fatal offences, if they were done in self-defence. Section 421 of the Crimes Act provides for such circumstances: 421 Self-defence - excessive force that inflicts death (1) This section applies if - (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary - (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
11. Central to the sentencing exercise is the identification of the circumstances as the offender, (rightly or wrongly), perceived them. His perception of the circumstances is relevant to the determination of what he believed was necessary to do in order to defend himself (s 421(1)(c)) and how far the conduct he engaged in was out of proportion with what was a reasonable response in those circumstances: s 421(1)(b).
12. Close to Mr Denniss' body on the floor of the garage, just in the shadows not far from his right side was the home-made mace, a long stick with metallic tape on one end and a large ball of taped together, uncapped syringes and nails at the other.
13. As I have already found, its presence and location is entirely consistent with the offender's account that Mr Denniss held something in his hand that the offender thought was a firearm. The offender was behind a gate approximately 13 metres from the garage doorway. I have accepted that the gate was closed before the offender's arrival and I find that this makes sense given that Mr Denniss had stabbed the offender and may suspect the police would arrive and see his garage populated by a large and healthy looking cannabis crop as shown in the crime scene photographs.
14. Given the verdict, the jury must have found in favour of the offender that he did what he believed he had to do, and I accept that the offender genuinely but mistakenly thought Mr Denniss was holding a gun which "looked like he was lifting it up to point at me" [1] and he genuinely believed he would be shot if he did not shoot first. It was a panicked and spontaneous response.
15. The offender's perception of the circumstances must include things that he knew and/or believed and/or perceived about Mr Denniss, as well as what he thought he saw in the moment Mr Denniss came out of the garage. The offender knew Mr Denniss could and did access firearms, he knew that he was a person who carried weapons and made threats, he knew that Mr Denniss was angry with the offender and had told him so, and had stabbed him and threatened him stating "you're a dead cunt".
16. I also accept Dr Furst's evidence that the offender was suffering the effects of PTSD and that the threats, both physical and verbal that Mr Denniss made, were amplified in the offender's mind as a result of the ongoing effects of this PTSD.
17. These matters are relevant to the assessment of the degree of unreasonableness, (or excessiveness), of the response.
18. The question of the degree of unreasonableness or excessiveness of the response must be assessed in light of the offender's decision to go back to the premises with the firearm in the first place, as well as pulling the trigger at the moment of direct threat.
19. I accept that the offender took the firearm with him to threaten Mr Denniss, not to shoot Mr Denniss with it. It was a misguided and dangerous plan but he did so to respond to the threats Mr Denniss made and because he had fears for his safety and the safety of his best friend and children.
20. The Crown submitted that I should find that the offence was planned and that what occurred is a very serious offence of its kind. I do not agree. The offence of killing Mr Denniss was not planned. What was planned was a foolhardy ill-considered attempt at intimidation. I accept the offender's evidence that the loading of the gun was so he could fire it to scare people away if he needed to. [2]
21. In all the circumstances, and in particular the offender's evidence as to his perception of those circumstances first, that Mr Denniss may go and harm his children and then at around 4:00pm, that Mr Denniss came "flying out" of the garage with what the offender thought was a gun, his response was disproportionate, but not grossly so.
22. To the extent that there can be any qualitative comparison with any other offence of this kind given the unusual combination of circumstances in this case, I consider the offender's conduct to be within the mid-range of seriousness for offences of this type.
23. Having said that, taking the life of another person is always a serious matter. Even taking into account the pressure of the circumstances in which he found himself and the threats amplified by the effects of his PTSD, a sentence of full-time custody must be imposed.

The offender's personal circumstances

1. The offender is 32 years old. He has in the past been employed as a scaffolder and intends to return to that work. He has two children now aged five and three.
2. He has some offences on his record including a s 9 Bond for assault imposed on 4 June 2018, possession of various prohibited weapons plus serious driving offences in 2016, and an offence in the nature of domestic violence.
3. Significantly to the events of 8 December 2018, in August 2016 he was seriously bashed in circumstances that I accept caused significant physical and emotional trauma to him, disabling him from work and causing a serious PTSD, the effects of which were still operational in December 2018.
4. For most of 2020 he has had very limited visits and contact with his family and friends and I accept this has added somewhat to the hardship in custody.

The plea of guilty

1. There had been a previous offer to plead guilty to manslaughter on the basis of excessive self-defence at a case conference when the matter was still in the Local Court. That offer was not accepted. The offender is entitled to the appropriate discount under s 25E(3)(a) of the Crimes (Sentencing Procedure) Act which is 25% and I have applied that discount to the sentence I will impose.

Aggravating and mitigating factors

1. Section 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) requires me to take into account certain aggravating and mitigating factors.
2. The Crown submitted that the following aggravating factors are applicable: 1. The offence involved the use of a weapon, likely a shortened rifle: s 21A(2)(c); 2. The offence was committed in the home of the victim: s 21A(2)(eb); 3. The offence was committed without regard for public safety: s 21A(2)(i); 4. The offence involved a grave risk of death to another person or persons: s 21A(2)(ib); 5. The offence was committed while the offender was on conditional liberty in relation to an offence: s 21A(2)(j).
3. The offender concedes that certain aggravating factors were present. A weapon was used - a shortened firearm, and the offence was committed whilst the offender was subject to a s 9 Bond for other offending.
4. Counsel for the offender contends that it is a matter for the Court whether to consider the circumstances here warrant a conclusion that being shot on the driveway corresponds to "in the home of the victim": s 21A(2)(i). In my view it clearly does. Mr Denniss was shot at the address of which he lived. Mr Denniss had made it clear an hour earlier that he did not want the offender at his home. Even if he had been welcome, as observed by Bathurst CJ in Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286 at [49]: "…The reason that the fact that the offence was committed in the victim's home was said to be an aggravating factor was because of his or her entitlement to feel secure in the home. There is no reason that a breach of that security would constitute an aggravating factor in the case of an intruder but not in the case of a person lawfully on the premises."
5. Counsel for the offender argues that the assertion that the offence was committed without regard to public safety should not be taken into account. He argues that to do so would be unfair to the offender, if the Court had already taken into account the fact that the offence was committed in the home of the victim. I reject that submission. The offender loaded a firearm and travelled to another suburb of Newcastle with that loaded firearm. He had not used a firearm before and was unfamiliar with it. He fired the gun from the top of the driveway in a residential street. He did not know who would be in the vicinity. I consider this aggravating factor is made out.
6. Section 21A(2)(i)(b) - that the offence involved a grave risk of death to another person, namely Taylah Lethbridge, is understandably not conceded. Given that I have accepted the offender's account that he did not see Ms Lethbridge at that time, and I reject Ms Lethbridge's account that she had her arms linked around Mr Denniss and that they "shuffled backwards" together, I do not accept that she was in a position at the time of the offence such that there was a grave risk of danger to her.
7. Counsel for the offender submitted that I should take into account the following mitigating factors: 1. That the offender was provoked by the victim: s 21A(3)(c); 2. That the offender has good prospects of rehabilitation: s 21A(3)(h); 3. That the offender has shown remorse: s 21A(3)(i).
8. It was submitted that the attack upon the offender by Mr Denniss with the knife and the threats that he made had the effect of provoking the offender to return to intimidate the deceased with the firearm in an effort to prevent him carrying out any such threats. I am not persuaded this is a matter, in all the circumstances that should be taken into account as an additional matter in mitigation. There is an element of disconnected deliberateness in the plan made by the offender to return that I have already considered and taken into account when dealing with the question of the extent to which his response exceeded what was reasonable. I do not consider a further recognition as a separate mitigating factor is warranted, given the approach that I have taken.
9. In order for me to find that the mitigating factor of the offender's remorse exists, I must be satisfied that the offender has provided evidence that he has accepted responsibility for his actions and acknowledged the loss caused by his actions: s 21A(3)(i) of the Crimes (Sentencing Procedure) Act.
10. There was evidence before the Court that the offender is remorseful. He wrote a letter that was tendered and that he read at the proceedings on sentence in the presence of members of Mr Denniss' family. The letter became an exhibit on sentence. Like his oral evidence at trial, it employs simple and direct language. He stated relevantly: "I was asked by my lawyer to write something. Your Honour, I want it to be noted today, that I actually wanted to do this more than anything. I feel it is something I needed to do. Firstly for myself to somehow move forward, but mainly, I wanted the Denniss family to know how very sorry I am. After what started out to be a bad day actually ended up being the worst day of my life. This is most certainly not what I wanted to happen. I totally understand if the Denniss family do not want to hear from me or anything about what I intend to do in the future. Ken is gone and nothing I say or do will bring him back. I understand he has a young family who will be missing him. This pains me more than anything in this world".
11. In leading that evidence in that way, the offender showed a willingness to again be cross-examined, this time about the genuineness of his remorse, and potentially, other matters relevant to sentence.
12. The Crown cross-examined the offender about his behaviour in the Local Court a few days after the shooting and submitted that this behaviour indicated that he was not sorry. There was it seems, a type of non-verbal altercation between himself and Wade Denniss where the offender reacted and smirked and made childish gestures in response to certain gestures that were made to him in Court. He candidly admitted that he should not have done it, and that he reacted badly at the time. I accept his evidence on that issue and do not see it as relevant to whether the offender is remorseful or not.
13. The Crown suggested to him that he had not accepted responsibility for his own actions. He rejected that contention.
14. The Crown also submitted that the offender claiming that he is remorseful sits uncomfortably with the fact that he sought an outright acquittal at the trial.
15. I am not persuaded that submission has any force. The offender offered a plea of manslaughter on the basis of excessive self-defence and that was rejected. It does not reflect at all on his remorse that he, no doubt on the advice of his lawyers, chose at trial to leave to the jury the question of whether the Crown could prove beyond reasonable doubt that his response was not a reasonable one in the circumstances as he perceived them
16. The Crown also submitted that stating "I wish it didn't happen" is not sufficient to demonstrate insight into his conduct or any acceptance of responsibility for it. I do not agree that is so. Whilst there may be an element of wishing for his own sake that the event did not happen, in my opinion this statement encompasses sorrow for the death and the harm he has caused. To the extent this was not already clear, it became even clearer in his evidence on sentence and in the letter he wrote that was tendered on sentence.
17. Whilst simply and somewhat concretely expressed, I accept on the material before me that the offender is remorseful. This is a further mitigating factor to be taken into account.
18. The Crown submitted that there is a significant question mark over the offender's prospects of rehabilitation given that this offence was committed whilst the offender was on a good behaviour bond for a previous offence of violence. He has some in custody offences on his record for fighting although he in my view adequately explained those in his evidence. Those and his criminal record do not lead me to a concern that he will reoffend.
19. There is clearly a history of problematic drug use. The Crown submitted that the affidavits tendered from Ms McGovern and her father should be viewed with circumspection. Ms McGovern formerly used Ice with the offender and her father does not seem to be fully aware of the offender's criminal record which contains other convictions for violent offending.
20. In my view however, the affidavits give an insightful and realistic account of the authors' observations of how and when the offender spiralled out of control leading to the cessation of Ms McGovern's relationship with him. They are aware that drug use was a relevant factor. The previous offending had been dealt with by the Courts by suspended sentences and bonds.
21. I do find that the offender has good prospects of rehabilitation. I accept that his criminal record is relevant but limited. It commenced in 2016 at a time when I accept he was in a toxic relationship and using drugs with the woman with whom he was then in a relationship and he was unemployed. The offender has attended programs in custody including numerous narcotics anonymous meetings. He has the support in the community of the mother of his children and her parents as well as his stepfather. There is no evidence that he has used illicit substances in custody.

Comparative cases

1. Both the Crown and counsel for the offender drew my attention to various cases that bore some similarities and many differences to the circumstances here. I have read them and considered them but concluded that they provide little assistance to me given the very particular circumstances of this case.

Mental Health

1. As I have said, I accepted in full the evidence of Dr Furst regarding the offender's PTSD and its relevance to the offending. I preferred Dr Furst's view to that of Dr Martin who although acknowledging the offender previously had been suffering the effects of PTSD, took the view that its effects had dissipated by December 2018.
2. Dr Furst explained what he meant by the offender having a vulnerability at the time of the offending because of his PTSD. He said: A: … In my view it's important in terms of helping to understand why someone might react in a certain way both psychologically and physiologically, so by physiological, I mean the type of stress response you see; the adrenalin, increased heart rate, preparing oneself for some type of confrontation or potential confrontation, and psychologically, being how someone might think of things whether they're calm and logical or whether they might think ‑ exaggerate a threat, for example, in their head, and not think of alternative calm responses.
3. Counsel for the offender submitted that I should find that the offender had a reduced moral culpability for the offence given Dr Furst's evidence, and that should effect my assessment of the role of general deterrence in the sentence that I would impose.
4. The principles to be applied were summarised by McClellan CJ at CL in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]-[178] and, relevantly to the circumstances here, include:

• Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
• It may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed.
• It may reduce or eliminate the significance of special deterrence

1. In my view those particular considerations are relevant here. I consider the offender's moral culpability to be slightly reduced in the circumstances and that his PTSD also slightly reduces the significance of special deterrence in the sentence I will impose.

Special circumstances

1. Counsel for the offender submitted that a finding of special circumstances should be made pursuant to s 44(2B) of the Crimes (Sentencing Procedure) Act and that I should vary the usual ratio of parole to head sentence to provide for a longer period on parole. The basis submitted was that this is the offender's first time in custody and his need for parole support on reintegration into the community.
2. The Crown disagreed, submitting that an adequate parole period will be entailed in any sentence for the offending.
3. I find there are special circumstances in the offender's need for support to reintegrate into the community after his years in custody and in particular for support and structure to ensure continuation of his abstinence from drugs.

Pre-sentence custody

1. The offender has spent 2 years and 15 days in custody since his arrest on 9 December 2018. That time will be taken into account as time served.

Conclusion and sentence

1. For the offence of manslaughter I impose a sentence of imprisonment consisting of a non-parole period of 5 years commencing 9 December 2018 and expiring on 8 December 2023, and an additional term of 2 years and 6 months commencing on 9 December 2023 and ending on 8 June 2026.
2. The offender will become eligible to be released on parole on 8 December 2023.
3. This term has been reduced by a discount of 25% to take into account the offer to plead guilty and I note that I would otherwise have imposed a head sentence of 9 years and 4 months imprisonment.
4. I am obliged to tell you of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to "serious offences" including the offence for which you have been sentenced.
5. In summary, this means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a "high risk offender" who poses an unacceptable risk of committing a serious offence.
6. It is therefore in your interests to engage in rehabilitation opportunities that may be offered to you in the course of your sentence.

Endnotes

1. R v Daniel Mark Hawkins, Transcript of Proceedings, 20 October 2020, at T1363.42-43.
2. R v Daniel Mark Hawkins, Transcript of Proceedings, 20 October 2020, at T1303.48-50 to T1304.4-6. 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 January 2021