NSWNSWSC

R v J Shedden

[2012] NSWSC 759

Supreme Court of NSW|2012-07-06|Before: Fullerton J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2012-07-06

Before

Fullerton J

Source

Original judgment source is linked above.

Judgment (10 paragraphs)

[1]

REMARKS ON SENTENCE 1HER HONOUR: On 16 April 2012 the trial of the offender for the murder of Joshua Maynard at Raymond Terrace on 29 June 2010 was listed for trial. On 17 April 2012 he was arraigned on that charge to which he entered a plea of not guilty to murder but guilty of manslaughter. The Crown accepted that plea in full satisfaction of the indictment. 2The Crown's willingness to accept a plea to manslaughter was first made known to the offender at the time of committal proceedings - an offer which remained current up to and including the date fixed for trial. Accordingly, the plea of guilty cannot attract the sentencing discount that would otherwise accompany an early plea. The Crown conceded however that the plea should attract a discount in the order of 10 per cent reflecting its utilitarian value which, together with the discount which the offender will be afforded for his past assistance to the authorities, will be productive of a reduction in sentence. The extent of the reduction for assistance will need to be expressly stated to comply with the operation of s 23 of the Crimes (Sentencing Procedure) Act 1999 (see R v Ehrlich [2012] NSWCCA 38). In this case, additional factors bear upon the quantification of the discount for assistance, in particular the conditions of the offender's remand since his arrest (see Kauwenberghs v R (Cth) [2008] NSWCCA 98 at [99]-[103]).

[2]

The evidence in the sentencing proceedings 3A document headed "Summary of Crown Evidence" was tendered by consent as part of a folder of materials upon which I was invited to find the facts for sentencing purposes. The document was also separately tendered as an attachment to a certificate issued pursuant to section 35A of the Crimes (Sentencing Procedure) Act and signed by the Crown prosecutor on behalf of the Director of Public Prosecutions. Section 35A is designed to facilitate the fact-finding exercise for sentencing purposes following charge negotiations. The form in which the "Summary of Crown Evidence" was initially tendered failed to meet the requirements of a statement of agreed facts under s 35A(2)(b) since it failed to identify with any clarity the offender's objective criminality by reference to relevant and provable facts. Most critically, it obscured altogether his role as one member of a group of men (and some boys) who launched a violent and premeditated attack upon another group of young men of which the deceased was a member, or the extent to which the offender appreciated the risk that serious injury would or might result from that attack. 4These deficiencies were compounded by the tender of transcripts of a number of conversations the offender had with police both prior to and after his arrest on 7 July 2010, including, in particular, a lengthy interview at a time when he denied any active participation in the events leading to the death of the deceased (to the extent of inviting the police to accept that he tried unsuccessfully to intervene to prevent it), and where he prevaricated about his knowledge of the roles played by others including, in particular, his brother, Chad Shedden. 5It is not the function of the sentencing judge to wade through materials tendered on sentence with a view to discerning what the offender's role in any given offence might be, still less to attempt to discern what an offender proffers as the ultimate explanation for their involvement. Where the offender's role in the commission of the particular offence and his or her knowledge of material matters is to be the subject of argument in the sentencing proceeding, the evidence bearing upon these questions should be able to be succinctly stated to enable submissions to be made about it unless the offender elects to give evidence and to have the issues in dispute resolved in that way. 6After identifying for counsel what I regarded as the critical deficiencies in the materials tendered by consent, an addendum to the "Summary of Crown Evidence" was produced and tendered by agreement. Unless otherwise specified, the facts for sentencing purposes which I am satisfied are established to the criminal standard are drawn from that composite of material. 7The offender did not call any evidence. His subjective circumstances were addressed in submissions by his counsel. It was not submitted that there were any factors in s 21A of the Crimes (Sentencing Procedure) Act which mitigated the objective seriousness of his offending.

The facts 10At about 9pm on 29 June 2010 Daniel Forbes was walking with his friends, Chris Wilson and Blake Russell, when a red Commodore in which the deceased and his younger brother were travelling as passengers stopped and the deceased alighted. The deceased was aged 20 and his younger brother 19. Daniel Forbes and his two friends were aged 18. They had been celebrating Blake Russell's 18th birthday and were well affected by alcohol. While the precise circumstances which precipitated the confrontation between these two groups of young men is the subject of some controversy, the evidence establishes that Chris Wilson was punched by the deceased causing facial injuries from which he bled profusely. Daniel Forbes was also assaulted. 11Daniel Forbes and his friends ran from the scene to his home where he telephoned the offender. The offender was at that time aged 31. Having learnt of the assault the offender invited Daniel Forbes and his friends to come to his home at Links Drive. They arrived armed with various weapons, including knives. 12The offender permitted the young men to use his home as a base from which a retaliatory assault could be planned and launched. The offender also arranged for his older brother, Chad Shedden, and another friend, Bradley White, to join them. The offender dispatched one of his friends to collect Bradley White. He was overheard to say to his brother, "Some of the young boys have been beaten up and they need our help". 13After Chad Shedden arrived he was seen by Daniel Forbes to remove a shortened shotgun from his jacket. He was also seen to open the breech and remove and replace a cartridge. There is no evidence that the offender was present when this occurred, or that he was otherwise aware that his brother was armed with a loaded firearm until it was discharged, killing the deceased some time later. However, he is to be sentenced on the basis that he was aware that one of the people who had grouped together in his house had a gun, having overheard someone on the telephone attempting to obtain another gun. It is conceded that he made no enquiries as to who had the gun or whether it was loaded. 14As Bradley White was driven into Links Drive, the red Commodore also arrived. Members of the offender's group had by that time positioned themselves in various locations on the street from where they launched a surprise attack at the car using weapons of various kinds. None of the occupants of the red Commodore got out of the car. The offender was armed with a metal rod which he threw at, and which struck the back of the car. 15The red Commodore sped off pursued by Bradley White in his car. There is no evidence as to any contact between the two vehicles, or the occupants of the two vehicles, before Mr White returned to Links Drive where he regrouped with the offender, his brother Chad Shedden, and the other young men. Still armed with weapons of various kinds they then moved around the area on foot looking for the red Commodore and its occupants without success before returning to Links Drive where they again concealed themselves in anticipation of the red Commodore returning. At this time the offender knew that the group was variously armed with metal rods, a hammer and knives in anticipation of a fresh confrontation with the occupants of the car. I am also satisfied that he remained of the continuing belief that one member of the group had a gun. 16Meanwhile, the occupants of the red Commodore armed themselves and made their way back to Links Drive in a blue Commodore in substitution for the damaged red Commodore. On this occasion the car was met at the corner of Links Drive and an intersecting street by someone who, I am satisfied, must have been dispatched to lure the car into the street for the purposes of being ambushed by those in the offender's group. There is no evidence as to who directed that this be done. The overwhelming inference is that this was part of the planned attack in which the offender actively participated. 17As the vehicle drove into the street it was struck with broken pieces of paving bricks causing the car to stop. The offender and those in his group then surrounded the car, striking it with the obvious intention of causing damage. 18The offender was at the rear of the car brandishing a metal rod when the deceased emerged from the front passenger seat armed with a machete or knife of some kind and moved toward the rear of the car. He was heard to say, "Who wants to get stabbed?". As he approached the rear of the car he was shot by Chad Shedden who was standing close to the offender. Before the shot was fired Chad Shedden was heard to tell the offender to move out of the way. He was heard to say to the deceased, "Do you want to get shot? Do you want to get shot?". 19The deceased died en route to the hospital from a single shotgun injury to the chest. 20Shortly after midnight a crime scene was declared and a detailed examination of Links Drive undertaken. Assorted debris consisting of broken paving bricks and smashed glass were located on the roadway. A black handled knife, pieces of metal or plastic grill from a motor vehicle, a hammer, a black machete and portions of a knife handle were also located in the area. 21Although the offender denied any involvement when first spoken to by police as a resident of Links Drive, after participating in a lengthy record of interview on 7 July 2010 following his arrest, he ultimately directed police to an area near the Irrawang Bridge on the northern bank of the Hunter River where the gun that was used to kill the deceased was located by police divers the following day. I accept that were it not for the offender providing that information the weapon would not have been found. At that time the offender claimed that he had been told where the gun had been disposed of, although it later transpired that the offender disposed of the gun either at the direction of his brother or with his agreement. I am satisfied that at the time the offender provided this information to police he had a well founded fear of retaliation by his brother (and perhaps by other members of his family) were he to have identified his brother as the shooter and that he also had a legitimate fear that his wife and children would be at risk. Within a very short period of time he nominated his brother as the shooter to police. 22He has been in protective custody since the date of his arrest not only because of fears of retaliation from members of the family and friends of the deceased but from members of his own family including, but not limited to, his brother Chad whose trial was pending at the time of the sentence hearing on 17 April 2012, and against whom, at that time, the offender had undertaken to give evidence. 23On 27 April 2012, the day listed for sentence, that offer was withdrawn. His legal representatives also sought, and were granted leave to withdraw. On 3 July 2012 I was informed by newly appointed legal representatives that no further submissions would be advanced on sentence.