Facts of Offences
6 It is necessary to make findings of fact for the purpose of passing sentence. An Agreed Statement of Facts was tendered, together with a number of other documents, in the Crown case (Exhibit A). At the request of the defence, the Crown called the Offender's mother to give oral evidence and be cross-examined (T12-25, 17 May 2010). The Crown tendered a background report dated 11 May 2010 prepared by officers of the Department of Juvenile Justice (Exhibit B). This report fulfilled the requirements of s.25 Children (Criminal Proceedings) Act 1987. Tendered in the defence case was a folder of reports and documents (Exhibit 1). Dr Kenneth Nunn, psychiatrist, gave oral evidence in the defence case (T31-58, 17 May 2010). An email from Dr Nunn dated 18 May 2010 was also tendered (Exhibit 2).
7 The Court may not take facts into account on sentence, in a way that is adverse to the interests of the Offender, unless those facts have been established beyond reasonable doubt. On the other hand, if there are matters which the Offender relies upon in mitigation of penalty, it is enough if those matters are proved by the Offender on the balance of probabilities: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [27]-[28].
8 The Offender was born in February 1991.
9 In April 2008, the Offender's father ("the victim"), then aged 47 years, resided on a 25-acre property near Mudgee with his 19-year old son, HR. The Offender resided with friends at a nearby property at Mudgee, where he worked as a jackeroo.
10 On Monday, 21 April 2008, the Offender arrived at his father's house, and he was to stay there for the remainder of the week with his father's consent.
11 On 22 April 2008, the Offender and HR travelled to the nearby property at which the Offender had been residing and working. There they broke into the locked garage and locked firearms' cabinet and stole five firearms, a Winchester .222 calibre rifle, a Winchester .22 calibre rifle, a Sportco .22 calibre rifle, a Pietro Beretta .410 shotgun and a Hollis & Sons 12-gauge double-barrel shotgun together with ammunition.
12 HR later told the police that the firearms were taken so that he could intimidate a person who owed him money to secure the payment of the debt. The Offender told police that the firearms were taken for HR to sell to a friend. The evidence does not permit a finding adverse to the Offender (as opposed to his brother) with respect to the motive for stealing the firearms. However, the fact that the Offender lived at the premises where the firearms were stored supports a finding that he used his knowledge of their location to assist the planning of the theft and the theft itself. The Crown acknowledged in submissions that there was no evidence to support a finding that the Offender had stolen the firearms for the purpose of using them against any person, including his father.
13 The brothers took the stolen firearms back to their father's house where they were staying. The firearms were placed in a shed at the premises and later in HR's bedroom cupboard. At no time whilst the firearms were in the possession of the Offender and HR were they stored in accordance with the Firearms Act 1996, giving rise to the offences to be taken into account on the Form 1 in passing sentence on the aggravated break enter and steal matter.
14 HR and the Offender also maintained possession of ammunition which had been stolen with the firearms. Neither the Offender nor HR were licensed to possess firearms or ammunition, giving rise to a further offence to be taken into account.
15 After stealing the firearms, both the Offender and HR fired the .22 calibre rifle and the .222 calibre rifle on their father's property on the afternoon of 23 April 2008. Neither the Offender nor HR held a Firearms Licence/Permit, giving rise to a further offence to be taken into account on the Form 1.
16 The Offender and HR were present at their father's house on the evening of Wednesday, 23 April 2008. At about 9.15 pm, the victim arrived home from his work as a service engineer at a nearby mine. He drove home in a Ford Falcon sedan, a vehicle owned by his employer, which the victim was entitled to drive as part of his employment.
17 There were no issues or problems between the victim and the Offender during the evening. The Offender and HR watched television in HR's room until about 10.00 pm. At that time, the victim went to bed. Alcohol and drugs were not detected in the victim upon post-mortem examination. It is clear that he was not intoxicated in any way. It appears that HR fell asleep whilst watching television.
18 There is some suggestion that the Offender had consumed alcohol or cannabis earlier in the evening, although the evidence is unclear in this respect. At about 10.30 pm, the Offender went to the cupboard in which the firearms were located and removed the Hollis & Sons 12-gauge double-barrel shotgun. He loaded it and cocked it, and then lay down with the shotgun and continued to watch television.
19 Later in these remarks on sentence, I will make findings concerning the motive for what followed and the Offender's mental state at that time.
20 After a time, the Offender got up and walked into the victim's room where he found his father sleeping. He turned on the bedroom light. I am satisfied beyond reasonable doubt that the Offender moved close to his sleeping father, so that the muzzle of the shotgun was between 50 centimetres and one metre from the victim's head. The Offender fired the weapon, inflicting a single and immediately fatal gunshot wound to the back of the victim's head.
21 According to the pathologist who undertook the post-mortem examination of the victim, the pattern of the injury including the presence of lacerations, powder and smoke deposition and unburned powder particles was consistent with the shot being fired at a range of no more than 50 centimetres from the head of the victim. Assuming the victim was shot in the position in which he was found (and there was no evidence that he had been moved after the shooting), the pathologist concluded that the shot was fired from the opposite side of the bed, at a slightly downward angle, and almost directly across the bed.
22 Christiaan Pieterse, of the Police Forensic Ballistics Investigation Section, expressed the opinion that the muzzle of the shotgun was held at a distance not further than one metre away from the victim at the time of discharge and that, if the ill-defined band of powder deposition which was observed was soot like or carbonaceous deposits, then the distance between the muzzle and the victim could have been as close as 50 centimetres.
23 In light of the forensic and ballistic evidence, I do not accept the Offender's account to police that he was between 3.5 and five metres away from the victim when the shotgun was fired. I am satisfied beyond reasonable doubt that the Offender discharged the weapon whilst standing in close proximity to the victim and when aiming the shotgun towards the head of his sleeping father.
24 I am satisfied beyond reasonable doubt that, at the time when he pulled the trigger, the Offender intended to kill the victim. Mr Foord, counsel for the Offender, submitted that the plea of guilty to murder had been entered upon the basis that the Offender had acted with reckless indifference to human life, but not intent to kill. I will return to the consequences of this finding in this respect later in these remarks on sentence.
25 It was immediately apparent to the Offender that he had killed his father. HR came into the room and saw what the Offender had done. HR checked the victim and reported no signs of life. A towel was placed over the victim's head.
26 The Offender then went outside and fired the other shotgun cartridge off into the air to empty the firearm. He then placed both fired cartridges into a container which police later found in the victim's work vehicle.
27 Neither the Offender nor HR called for assistance or to report the death of the victim. I am satisfied beyond reasonable doubt that the brothers, in a state of panic, decided to flee in the victim's work vehicle. To this end, the brothers agreed that it was necessary to obtain money to assist their flight. The brothers took the victim's credit card and travelled in his vehicle to Mudgee where, at 11.27 pm on 23 April 2008, the sum of $1,000.00 cash was obtained from an ATM machine at the Westpac Bank. At 11.29 pm, a further attempt was made to obtain $1,000.00 cash, but this was declined by the ATM, no doubt because of the daily ceiling on cash withdrawals. The Offender and HR remained in Mudgee and, at 12.03 am on 24 April 2008, a further $1,000.00 in cash was obtained from the victim's account through the ATM machine. With the $2,000.00 in cash, the Offender and HR returned to the property where they packed a number of personal items into the vehicle.
28 When interviewed by police initially, the Offender and HR falsely omitted to tell police of the visit to the Westpac Bank in Mudgee for the purpose of obtaining cash using the victim's card. However, bank records provided clear evidence of the time of these transactions, and the Offender asks that two offences of obtaining benefit by deception be taken into account on sentence for murder.
29 When interviewed by police, the Offender said that, after the shooting, he stayed up for the rest of the night watching television and HR went back to bed. I accept that this is what happened after the brothers returned from obtaining the cash in Mudgee. Once again, the Offender and HR took no steps to report the matter to the authorities.
30 I should mention that the Offender made an early admission as to what he had done. At about 12.35 am on 24 April 2008, the Offender sent a text message to an 18-year old female friend of his saying "I have done something bad that can get me 15 year in gaol". The friend rang the Offender and a discussion followed in which the Offender said "I done something bad" and that "I shot my dad". The Offender said "I've drank two bottles of wine and I don't even feel drunk". The friend did not believe the Offender's claim to have shot his father, thinking that he was drunk and making it up.
31 On the morning of Thursday, 24 April 2008, the Offender and HR set off from the property in the victim's vehicle. They had packed some clothes into the vehicle and had placed all of the firearms, including the shotgun used to murder the victim, into the boot of the vehicle before leaving the property. The taking of the vehicle gave rise to the offence of being carried in a conveyance without consent of the owner, also to be taken into account on sentence for murder.
32 The Offender and HR drove to Penrith where the Offender purchased some new clothes and a new mobile phone while HR purchased two video games.
33 At about 8.45 am on 24 April 2008, the Offender's mother (then living at St Marys) received a text message from the Offender saying "Mum call me now it's really urgent". The Offender's parents had separated in about 1997, when the Offender was six years of age. The Offender's mother immediately rang back enquiring as to what was wrong. The Offender sounded distressed at the time and said "I shot Dad and he's dead". After further discussion, the Offender said "I shot him in the back of the head with a shotgun. There's only a small hole". The Offender's mother became hysterical and commenced to scream and the Offender said "I knew you'd react like that. Call police because otherwise no one will find him". The mother then made telephone calls to report what the Offender had told her. She told police of the conversation and that both the Offender and HR were in a car that had left Mudgee.
34 Shortly after 9.15 am on 24 April 2008, the victim's mother (the Offender's grandmother) walked from the nearby property on which she was living to the victim's property. Before that, she had received a confusing telephone call from a woman suggesting that there had been a "bad accident". She decided to walk over to the victim's property. She saw two police vehicles in the driveway, and the vehicles stopped and reversed back to the road. The Offender's grandmother entered the house and discovered the victim's body lying in bed with a towel over the head. She went to the verandah and used her umbrella to wave to the police at the front gate. Police entered the victim's home and investigations commenced. It was noticed that the victim's work vehicle was missing from the property.
35 At about 10.15 am, police telephoned HR's mobile phone which was answered by the Offender. During the telephone call, the Offender stated that he was responsible for shooting the victim. When asked by the police officer what it was all about, the Offender said "I really don't, just dad's been friggin' treatin' me and my brother like shit for several years and, I've just, I don't know, for some reason I just snapped". The Offender was asked to go to a nearby police station, or to provide his actual whereabouts, but he refused to do so, stating that he did not want to be caught by the police. Over the following two-and-a-half hours, police continued to negotiate with the Offender by telephone. During that time, he refused to provide his whereabouts or to attend a police station. During this time, HR was driving the vehicle and the Offender was in the passenger seat.
36 Eventually, the pair agreed to surrender and they went to the Castle Hill Police Station where they were arrested. The vehicle in which they had been travelling was searched and the four stolen firearms, together with a large amount of ammunition, was located in the boot.
37 The Offender took part in an electronically recorded interview and was subsequently charged with the present offences. He admitted in the interview that he had shot his father. He told police that the victim had mistreated him.
38 He has remained in continuous custody since 24 April 2008.