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Category: Sentence

Parties: Rex (Crown)
Mark Peckham (Offender)

Representation: Counsel:
M Hay (Crown)
J Trevallion SC (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
George Sten & Co (Offender)

File Number(s): 2023/00297877

Publication restriction: Nil

JUDGMENT

Introduction

1. HIS HONOUR**:** George Kirk was a beloved son to John and Judy and brother to Brandy.

2. At around midnight on 15/16 August 2023, Mr Kirk (or ‘the deceased’) was fatally stabbed in the bedroom of a home at [REDACTED], Dubbo (or ‘the premises’) – the home of his partner, Tammy Antaw, where he was staying that night. Despite the efforts of police and ambulance officers, Mr Kirk could not be revived, and he passed away at the premises. He was 39 years of age.

3. Mark Peckham (or ‘the offender’) stood trial for Mr Kirk’s murder in this Court, sitting at Orange, NSW. On 23 March 2026, a jury found the offender guilty of that charge.

4. He is now to be sentenced for committing that crime.

Background: the circumstances of the offending

Fact-finding: some relevant principles

5. Before moving to address the facts – noting those that were accepted by the parties and resolving those that were in contest – the following principles apply to fact-finding when sentencing an offender in the present situation. First, the “primary constraint” on the sentencing court is that it must determine the facts consistent with the jury’s verdict: R v Isaacs (1997) 41 NSWLR 374, 378 (‘Isaacs’); Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14] (‘Cheung’). Secondly, any finding of fact that is adverse to an offender must be established beyond reasonable doubt, whereas an offender bears the burden of proving matters that are submitted to be in his or her favour on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27]; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64]. Thirdly, there is no general requirement that “a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender”: Isaacs at 378. Fourthly, the role of the Court is to make findings of fact which are not inconsistent with the jury’s verdict, based upon the Court’s assessment of the evidence called in the trial: Badans v R [2012] NSWCCA 97 at [68].

6. Relevantly here, aspects of the duties of the sentencing judge were explained in Cheung, as follows (at [5]):

“The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace.”

7. Those remarks are of particular importance here, given the way the Crown case was put to the jury. The Crown advanced two alternative pathways to a verdict of guilty of murder: either the offender was himself the person who inflicted the fatal stab wound, intending to cause, at least, grievous bodily harm, or he was party to a joint criminal enterprise with Daniel Fitton to rob Mr Kirk, armed with a knife, contemplating that, at least, grievous bodily harm might be inflicted to give effect to that robbery (Crown submissions at [3]). The jury’s verdict does not, of itself, disclose which pathway the jury accepted. The central factual dispute on sentence is whether I can be satisfied beyond reasonable doubt that it was the offender who inflicted the fatal wound to Mr Kirk.

Introduction and overview of the competing positions

8. I will start with a brief overview of the events surrounding the fatal stabbing of Mr Kirk and, having done so, will then outline the competing positions of the parties about how particular issues of fact should be resolved.

9. In August 2023, Mr Kirk was in a relationship with Ms Antaw. They had been together for a few months, and, at the time, Mr Kirk was staying in the house she rented at [REDACTED], Dubbo. The events leading to the fatal stabbing of Mr Kirk took place in the main bedroom of the premises. At around midnight on 15/16 August 2023, whilst he and Ms Antaw were in bed, they were confronted by two men – the offender and Mr Fitton. During the confrontation, Mr Kirk suffered a number of knife wounds, one of which was fatal: a single penetrating stab wound to the left lateral chest wall – broadly in the area of Mr Kirk’s left armpit (Exhibit H).

10. The parties were largely in agreement about the background matters of fact leading up to and including that confrontation – except in one key respect: whether the offender inflicted the fatal stab wound to Mr Kirk. As to what occurred after that confrontation, including after the offender and Mr Fitton fled the premises, there was some agreement about what occurred. The matters of fact over which there was a contest essentially related to the interactions the offender had with numerous people following the fatal stabbing of Mr Kirk.

11. That short summary of the key events and outline of the factual issues, including those that were contested, sufficiently contextualises the positions adopted by the parties in relation to what I earlier described as the central factual dispute: whether the offender inflicted the fatal stab wound to Mr Kirk.

12. As to that matter, the arguments of the parties, in short, were as follows.

13. The Crown submitted that the Court could – and indeed should – find that the offender did inflict the fatal stab wound: the Crown argued that the evidence from Ms Antaw and David Johnson (a friend of Mr Kirk’s who was inside the premises at the relevant time) and the evidence relating to the “admissions” made by the offender after he fled the premises, in combination, demonstrate to the required standard that the offender was the perpetrator of the fatal stab wound to Mr Kirk (Crown submissions at [4], [14] and [46]). For the offender, as narrowed by Mr Trevallion SC during submissions, it was argued that the Court could not be satisfied to the required standard that he inflicted the fatal stab wound to Mr Kirk and that, in those circumstances, he must be sentenced on the basis that he did not inflict it, citing GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [22]-[23] (offender’s submissions dated 6 July 2026 at [21]). The Crown, in its reply submissions, accepted that the offender should be sentenced in this way if the Court was not satisfied beyond reasonable doubt that he was responsible for the fatal stabbing of Mr Kirk (Crown reply submissions at [12]).

14. For completeness, it should be noted that, although the offender’s submissions tended to suggest that, given the way the matter was put to the jury by the Crown, it was not – as a matter of law or otherwise – now open to the Crown to argue that the offender was the perpetrator of the fatal stabbing of Mr Kirk, Mr Trevallion SC confirmed during submissions that no such argument was made.

Background facts: 15/16 August 2023

15. In what follows, I cover the background facts. They reflect my findings.

The premises at [REDACTED]

16. In August 2023, a number of people lived at [REDACTED], Dubbo, a property that was a short distance away from [REDACTED]. At that time, the people that lived there included Jane Powell, Amanda Schneider, Chelsea Watts and others.

17. In the afternoon and into the late evening of 15 August 2023, a number of people gathered, at various times, at [REDACTED]. This included Mr Kirk, Mr Johnson, Mr Fitton and the offender. Mr Kirk was, most likely, at [REDACTED] on several occasions that afternoon and evening, and he was using and distributing drugs whilst he was there.

The offender’s attendance at [REDACTED] late on 15 August 2023

18. On the evening of 15 August 2023, Ms Antaw, Mr Kirk and Mr Johnson were at [REDACTED]. I am satisfied that each of them had, on that evening, consumed drugs – namely, methamphetamine. Ms Antaw’s evidence was that she used the drugs with Mr Kirk at about 10.00pm. Mr Kirk, Mr Johnson and Ms Antaw were, and remained, at [REDACTED] after this time.

19. Ms Antaw’s evidence was that she went to bed at about 11.30pm with Mr Kirk. Ms Antaw slept on the side of the bed closest to the wardrobe, and Mr Kirk slept on the side closest to the window. They slept with their heads towards the wall.

20. After she went to sleep, Ms Antaw was woken by a knock on the window of the main bedroom. She recognised the person at the window as the offender and “told him to go around the back” (T102.46-48). He was on his own. The evidence does not permit a precise finding about when this occurred – only that it was after Ms Antaw and Mr Kirk went to bed, but before midnight.

21. Ms Antaw’s evidence was that the offender came “through the back asking for drugs”, but “[they] didn’t have any”, and so she “told him to go around to Chelsea’s – Chelsea Watts” (T103.1-2). Ms Antaw described the offender as wanting “meth”, asking “do you have anything?”; Ms Antaw said “we [have] nothing” or “nothing”, and “go to Chelsea and Jane’s”. In short, the offender was wanting drugs (T105.17-106.7).

22. Having been told where he should go to secure drugs, the offender returned to [REDACTED]. Also present at that location was Mr Fitton.

The offender’s subsequent attendance at [REDACTED] on 15/16 August 2023 with Daniel Fitton

23. The offender and Mr Fitton left [REDACTED] at around midnight, returning to Ms Antaw’s house which, as I have said, was a short distance away. The offender did not dispute, and I accept, that he and Mr Fitton returned to Ms Antaw’s home to get drugs. I am satisfied that each of them had taken methamphetamine, and was drug affected.

24. The evidence did not disclose how the offender and Mr Fitton travelled from [REDACTED] to [REDACTED]. Nothing turns on this. The evidence also did not disclose the time they arrived, but it was before 12.05am on 16 August 2023, which was when emergency services were called following Mr Kirk’s stabbing. Nothing turns upon the precise time that they arrived at [REDACTED].

The confrontation in the main bedroom

25. Having returned to Ms Antaw’s home, the offender and Mr Fitton entered it – unannounced and uninvited – and confronted Mr Kirk and Ms Antaw whilst they were in bed.

26. Ms Antaw, who had been asleep, was woken by Mr Kirk. It is likely that Mr Kirk was also asleep, and that he was woken by their entry. I am satisfied that Mr Fitton and the offender “were angry” (T112.35) and that Mr Fitton said to Mr Kirk words to the effect of: “[a]re you treating us like a gronk?” (T112.32).

27. The offender then said words to the effect of: “[t]ell George to answer D. Like, ‘Do you think that we're gronks?’” (T113.15). Ms Antaw’s evidence was then (T113.24):

“D told George to come sit down the end of the bed and say, ‘Say it to our face. Tell us that we’re not - tell us that you’re not treating us like a gronk and that Chelsea and Jane are fucking lying.’”

28. Mr Fitton then pushed or punched Mr Kirk with enough force that Mr Kirk stumbled back into the lamp table positioned in the corner of the bedroom, causing a lamp to break (SU, page 43; T114.19-115.35). Mr Kirk got up and threw some punches, some of which connected with Mr Fitton (T115.34-35; T116.17-38). At this point, Mr Fitton left the bedroom “in a hurry” (T116.45).

29. The offender then became involved in a physical confrontation with Mr Kirk. Ms Antaw’s evidence was that she observed the offender “[stab] him” (T119.19), which she further described as follows: she “saw him with a blade, just quickly jabbed him twice”, and that the offender “[h]ad the blade in his hand and he just done two quick stabs close” (T119.41; T120.1). She also gave a demonstration of what she observed, which was placed on the record by counsel as: “with your right hand, you took your right hand from a position about your mid length and you quickly moved your hand out twice from your midsection outwards” (T120.4). At this time, Ms Antaw heard Mr Kirk ask the offender: “[w]hat are you trying to do, bro? Are you trying to kill me?” (T120.17).

30. There is no doubt that Mr Kirk was fatally stabbed during the confrontation in the main bedroom. The Crown relies upon Ms Antaw’s evidence to support the finding that the offender was responsible for the fatal stabbing of Mr Kirk, whereas the offender argues that her evidence should not be accepted. I will return to, and resolve, this issue once the remaining background facts are covered: see [51]ff, below.

31. In the moments after the infliction of the fatal stab wound, Mr Kirk was asking for help. Mr Johnson, who up until this point had been in the lounge room, made a triple-0 call and was on the phone to emergency services, and, at least initially, Ms Antaw was applying pressure to Mr Kirk’s wound.

32. Ms Antaw’s evidence was that, at this point, the offender threw a towel at Mr Kirk and told him “to put it on there before he bleeds out everywhere” (T122.46). She also said that the offender told Mr Fitton, who was “at the back window”, to “call an ambulance”, and that the offender said “sorry” as he was walking out (T123.41; T124.13).

33. As I earlier noted, offender and Mr Fitton fled the premises at this point.

34. Emergency services attended the premises and attempted to save Mr Kirk – unsuccessfully. Ambulance officers pronounced Mr Kirk deceased at 12.51am on 16 August 2023.

The nature of wounds inflicted upon George Kirk

35. In addition to the fatal stab wound, Mr Kirk also sustained two other wounds during the confrontation in the main bedroom. There was no contest about the nature of the three wounds suffered by Mr Kirk.

36. The fatal stab wound was described by Dr Loots, the consultant pathologist called by the Crown, as “a single penetrating stab wound to the left lateral chest wall with associated penetrating stab wound to the lung and large left haemothorax” (SU, page 25; T842.9). In addition to the fatal stab wound to Mr Kirk’s chest, Mr Kirk sustained two other wounds in the left upper chest area, which Dr Loots described as “two slash or incised wounds” (SU, page 26; T849.18). The first one was “a large gaping irregular slash or incised wound that was relatively large” and measured, unopposed, 12 centimetres in length and 1.5 centimetres wide (SU, page 26; T849.46-850.1). This wound was “located on the left aspect of the upper chest” and “in an area called the anterior axillary line” 148 centimetres above the left heel (SU, page 26; T851.44-852.3). The second one was a “superficial incised or slash wound” just below the larger slash or incised wound and had dimensions of 7.5 centimetres by 1 centimetre (SU, page 26; T852.24-27).

37. These three “wounds” were accepted by Dr Loots to be sufficiently depicted in Exhibit H – the marked drawing showing them by numbers 6 (the fatal penetrating stab wound), 7 (the first slash wound) and 8 (the second slash wound) (SU, page 26; T854.12-27).

The relevant events after the offender left [REDACTED]

38. In relation to the events after the offender and Mr Fitton left [REDACTED], there was no dispute that the offender attended the homes of Kenneth Gardoll and Kasey Fletcher and spoke with each of them; the contest between the parties related to what the offender said to them.

39. After the offender fled [REDACTED], he drove in Mr Fitton’s car to the home of Mr Gardoll – his great uncle – at [REDACTED], Dubbo. Based upon videos tendered at trial (Exhibit K), he arrived there at 12.54am and left around five minutes later at 12.59am (SU, page 62; T898.42-47).

40. Mr Gardoll’s evidence was that he had a discussion with the offender on his back veranda that included him telling the offender that he was “crazy to drive a car with no plates on it”, and the offender telling him about, what Mr Gardoll described as, “some dramas around at Tammy Antaw’s” (SU, page 62; T391.49 – 393.1).

41. The offender did not contest the above matters relating to his initial interaction with Mr Gardoll, and I am satisfied they occurred in the way described. However, the further interactions (described next) were disputed by the offender.

42. Mr Gardoll gave evidence that the offender told him “he stabbed somebody and he was – he took off”, and that the offender “just said he called him a gronk or something” and was “muttering and going off” (T393.5; 394.1-7). After the offender told him he had stabbed someone, Mr Gardoll asked “[a]re you sure?”, to which the offender’s response was “[y]eah, yeah, yeah. I gotta go” (T395.17-23). The offender then told Mr Gardoll that he would “hand [himself] in at Maitland” (T395.35).

43. Mr Gardoll’s evidence was that the offender told him that “the bloke come at him swinging and he just - he just swung a - swung a thingie at his head and he hit him under the arm,” but that the offender did not indicate to him where he meant (T396.17). In this last respect, the Crown also emphasised that, later, when cross-examined, Mr Gardoll confirmed that evidence and also gave evidence about a gesture that the offender made, which was described by counsel and put on the record as “a round-arm swinging gesture with his right arm up underneath his left armpit”, and “[t]he height that he indicated was around about the mid chest area on the left-hand side underneath the armpit” (T441.43-442.10; SU 63).

44. In August 2023, Kirk Millhouse was living with Mr Gardoll at his home at [REDACTED], Dubbo, and he was friends with Mr Gardoll’s son. He had lived there for about seven years.

45. Mr Millhouse arrived at Mr Gardoll’s home shortly after midnight. He recalled the offender arriving in Mr Fitton’s car. His evidence was that “[the offender’s] exact words were, ‘I got treated like a gronk, so I took him out’” (T614.14; SU, page 65). Mr Millhouse’s evidence was also that he had “no idea” what they were talking about, but was only standing a couple of metres away from where they were talking. He said that the “other person” – not Mr Gardoll – said those words, and that he “certainly heard those words” (T614.23-39; SU, page 65).

46. Mr Millhouse subsequently went to Mr Gardoll and asked him who the person was, and was told “it was a family member” (SU pages 65-66; T615.4). The offender submitted that Mr Millhouse’s evidence should not be accepted.

47. Kasey Fletcher is the sister of Linda Fletcher, the offender’s ex-partner.

48. The offender drove to Singleton, where Ms Fletcher lived, and parked “in front of the neighbour’s yard” (T450.15). Ms Fletcher was leaving for work and saw that the offender was in the car. She described it as a “grey… darker colour Audi”. The offender did not contest these matters (T450.20).

49. Ms Fletcher went and spoke to the offender. She could not remember the full conversation, but remembered that the offender said something to the effect of “he was in trouble or something like that, along the lines, and saying he had a fight with somebody” and “that he injured himself, and that he thinks that he possibly killed that person” (T450.40). When cross-examined, she rejected the suggestion that the offender had said “I got into a fight with somebody, and the person was killed”; her response was: “…not that I recall. I recall that he said that ‘I killed somebody’” (SU, page 67; T455.29).

50. I turn now to address the key contested issue of fact: who inflicted the fatal stab wound.

The fatal stab wound: discussion and consideration

51. The Crown argued that the Court would find, beyond reasonable doubt, that it was the offender who inflicted the “single penetrating stab wound” to Mr Kirk, largely based upon the evidence of Ms Antaw, Mr Johnson, Mr Gardoll, Ms Fletcher and Mr Millhouse, arguing that, considered together rather than in isolation, “the clear picture that emerges” is of the offender as the person responsible (Crown submissions at [14]).

52. On behalf of the offender, it was submitted that the Court is simply unable to find, beyond reasonable doubt, that he inflicted the fatal stab wound, essentially due to the argued fragility of Ms Antaw’s evidence, the blood spatter evidence from Detective Sergeant Kremers (coupled with aspects of Ms Antaw’s evidence) and various limitations in the evidence of the remaining witnesses relied upon by the Crown (T105.12-105.45). The arguments advanced by the offender were, in substance, twofold. The first, which was essentially a response to the Crown’s principal argument, was that the limitations in the evidence of Ms Antaw and the witnesses who interacted with the offender (or, in the case of Mr Millhouse, overheard those interactions) were such that the Court should not act on their evidence. The second was that the blood spatter evidence and what was argued to be the location of the preponderance of the blood in the main bedroom combined to cast a reasonable doubt about whether the offender fatally stabbed Mr Kirk (the ‘blood spatter argument’).

The Crown’s principal argument

53. The Crown’s principal argument was that the direct and circumstantial evidence paint a “clear picture” that the offender inflicted the fatal stab wound (Crown submissions at [14]).

54. The Crown relied upon the evidence of Ms Antaw that identified the offender as having a “blade” and observing him having “jabbed” Mr Kirk or “done two quick stabs”, essentially from the time that they first interacted in the main bedroom (T119.40-120.2). This is important evidence. The Crown also pointed out that, consistent with this overall account, Ms Antaw identified the offender when first interviewed by police at Dubbo Hospital – she wrote the offender’s name in the diary of Detective Senior Constable Ward. That evidence, which I accept, bears upon her overall account and the Crown’s principal argument.

55. The offender, however, submitted that there were reasons to doubt, at a minimum, the reliability of this evidence. By way of example, the offender submitted that the evidence Ms Antaw gave about the location of the “two quick stabs” was inaccurate, because she demonstrated them being inflicted in the area of the “lower abdomen” (T120.1; T122.13). That is, she identified an area on Mr Kirk’s body where it is known there were no stab wounds inflicted (offender’s submissions dated 6 July 2026 at [20]). I do not regard this inaccuracy as being destructive of the reliability of Ms Antaw’s evidence about what she observed – namely, that the offender stabbed Mr Kirk. The situation that unfolded was, I accept, a highly dynamic (not to mention traumatic) one, and what I regard as more significant is her observation of the offender’s actions. Separately, I do not accept that, simply because an aspect of her evidence is, to a degree, inaccurate, that all of her evidence should be considered that way: Palmer v R [2018] NSWCCA 205 at [51] (‘Palmer’).

56. The offender also submitted, in accordance with Ms Antaw’s statement to police that “[y]eah, yeah, I think he got stabbed from there to there” – indicating that Mr Kirk was stabbed and bleeding in the corner of the room following the initial interaction with Mr Fitton (T214.1-10) – that there must be some “doubt” about “who struck [the fatal] blow” (offender’s submissions dated 6 July 2026 at [8]-[12]). I disagree. Whilst, possibly, on its own, there may be a question about whether that evidence raised a “doubt”, the matter is not resolved by looking simply at this evidence in isolation, as the Crown emphasised.

57. The offender also submitted that Ms Antaw’s account must be contextualised against the backdrop of her consuming alcohol and drugs earlier that day and evening. I do not consider that her consumption of drugs and alcohol materially bears upon the reliability of her evidence about what she observed. She was repeatedly cross-examined about this, and she maintained that she was “still normal” (T161.21).

58. The Crown relied on the evidence of several other witnesses to support the ultimate finding it sought.

59. The first was Mr Johnson. The Crown relied upon limited aspects of his evidence (Crown submissions at [26]): that there were two intruders; that one of them said words to the effect of: “[y]ou’re dead[,] fucking dog” (T294.42-295.5); that the offender went into the bedroom but Mr Fitton did not; that he heard “screaming and yelling” coming from the bedroom; and that the two men left “less than five minutes” after entering the bedroom (T268.15-270.5; 296.22-30). I do not accept that this evidence assists with the resolution of the present issue and, to the extent his evidence was that it was only the offender who entered the main bedroom, I do not accept it, given my earlier finding that both men entered it.

60. The Crown next relied upon the evidence from Mr Gardoll, Mr Millhouse and Ms Fletcher. As I have noted, the Crown submitted that this evidence was significantly supportive of, and strongly pointed towards, the offender being the person responsible for inflicting the fatal stab wound.

61. In relation to Mr Gardoll, the offender disputed parts of his evidence – notably his account that the offender told him that, whilst at Ms Antaw’s home, “he stabbed somebody and… took off” (T393.5); that he called that person “a gronk or something” (T393.49-394.7); and that he “swung a thingie at his head and he hit him under the arm” and, by implication, the “demonstration” evidence he gave: see [42]-[43], above. In relation to Mr Millhouse, the offender disputed that part of his evidence that he heard the offender say: “I got treated like a gronk, so I took him out”: see [45], above. In relation to Ms Fletcher, the offender disputed her evidence that he told her “he had a fight with somebody” and that he said “I killed somebody”: see [49], above.

62. The offender did not submit that Mr Gardoll’s evidence, if accepted, could not demonstrate that he inflicted the fatal stab wound, but that his evidence should not be accepted because it was unreliable and he “had a strong motive to lie” (offender’s submissions dated 12 July 2026 at [16], [20]). For example, in relation to Mr Gardoll’s suggested unreliability, Mr Trevallion SC pointed out that his evidence about Mr Fitton attending his home “the next day” was not only inaccurate, but “made up” (T127.30). I accept that, as was submitted, there were aspects of Mr Gardoll’s account that were inaccurate and that this was one such inaccuracy. However, as I have explained elsewhere, questions relating to the reliability of a witness and their evidence do not necessarily present a binary choice: Palmer at [51].

63. In relation to Mr Gardoll’s evidence about what the offender told him and, as part of that, the demonstration, Mr Trevallion SC submitted that, in effect, this information was likely to have been acquired by Mr Gardoll not from the offender, but from his interactions over time with others in the community, given “it was common knowledge around town what had happened and how it had happened” (T112.15). I do not accept this submission. Rather, I accept, as the Crown submitted, that whilst the fact that Mr Kirk had been stabbed and killed was most likely well-known, “only those who were intimately familiar with the goings on in [the bedroom] could have known where he was stabbed”; and that “[knowing] what was going on… is not the same thing as demonstrating almost precisely the location of the fatal stab wound” (T125.50-126.1). In so far as the offender submitted that Mr Gardoll and his evidence lacked credibility, I do not accept the submission. As the Crown submitted, key parts of his account were supported by other evidence (which I accept). In my view, again as the Crown submitted, Mr Gardoll’s evidence provides significant support for the finding that the offender inflicted the fatal stab wound.

64. In relation to Mr Millhouse’s evidence, the offender did not make any separate submissions about those parts of the evidence relied upon by the Crown and, to be clear, did not suggest that his evidence, if accepted, was not demonstrative of the offender inflicting the fatal stab wound. However, at trial, Mr Millhouse was cross-examined to the effect that he had “made up” overhearing that conversation. I do not accept that Mr Millhouse “made up” hearing the offender say: “I got treated like a gronk, so I took him out” (T625.16-31). There is nothing in his account, nor the way he gave evidence, that causes me to doubt his evidence. I am satisfied that the offender said words to that effect. It is some evidence supportive of the “gronk” conversation occurring in the bedroom (see [27], above) and the fact that the offender was responsible for the fatal stab wound.

65. In relation to Ms Fletcher’s evidence, the offender submitted that if the Court accepted that part of her account relied upon by the Crown – in particular, her evidence that the offender said: “I killed somebody” – then it should not be understood as an admission that the offender inflicted the fatal stab wound (offender’s submissions dated 12 July 2026 at [21]). For example, it was suggested that those words were “equally explainable as relating to either the offender realising [Mr Kirk] had died as a result of the incident… or that [the offender] had stabbed [Mr Kirk] as described by Ms Antaw, that stabbing not being the fatal stabbing under [Mr Kirk’s] armpit”, or, as a further variation, that “the offender believed he had, or may have, killed [Mr Kirk]” (offender’s submissions dated 12 July 2026 at [21]). I do not accept these submissions. I am satisfied that the offender said to Ms Fletcher words to the effect of: “I killed somebody”. It is worth noting that this was her evidence when cross-examined, when it was suggested to her that the offender may have said words to the effect of: “I got into a fight with somebody, and the person was killed”, and her response was that this was not what she recalled, and that the offender had said to her: “I killed somebody”.

66. I have not overlooked the fact that the offender was, in Ms Fletcher’s assessment, “affected by drugs”. Notwithstanding, her evidence was given in a careful and straightforward manner, and there is nothing in her account or any aspect of it that leads me to doubt what she said. As the Crown submitted, her evidence provides significant support for the finding that the offender inflicted the fatal stab wound.

67. Despite being, to this point, satisfied that the evidence from Ms Antaw, Mr Gardoll, Mr Millhouse and Ms Fletcher, taken together, proves beyond reasonable doubt that the offender inflicted the fatal stab wound to Mr Kirk, it remains necessary to address the offender’s “blood spatter” argument: on this argument, the offender submitted that, irrespective of what each of these witnesses said, it is not open to find beyond reasonable doubt that he inflicted the fatal stab wound, essentially because the blood spatter evidence undercuts their accounts (T112.30-112.40).

68. It is to this argument that I now turn.

The blood spatter evidence

69. The offender’s argument was that the Court could not be satisfied that he inflicted the fatal stab wound, given the evidence of the initial interaction that Mr Fitton had with Mr Kirk (see [28], above), aspects of Ms Antaw’s evidence and the “blood spatter” evidence. The argument was that the combined effect of this evidence was such that the Court should have a reasonable doubt about the subsequent confrontation that the offender had with Mr Kirk as being when the fatal stab wound was inflicted.

70. The evidence of Ms Antaw relied upon by the offender was that, after Mr Fitton “pushed or punched” Mr Kirk, causing him to stumble back into the lamp table positioned in the corner of the room, she “heard the blood” (T114.25; T117.5; T214.5), and that she agreed that, when interviewed by police, she told them Mr Kirk had an injury because he had been “stabbed” in the corner of the room (offender’s submissions dated 6 July 2026 at [12]-[13]; T214.10-25). The offender emphasised that, at this point, he was “still standing back near the end of the bed” (offender’s submissions dated 6 July 2026 at [13]).

71. Building upon this, the offender argued that the evidence from Detective Sergeant Kremers was essentially supportive of a finding that the preponderance of Mr Kirk’s blood was localised in the main bedroom close to the lamp table. In this respect, the offender submitted that the following evidence from Detective Sergeant Kremers demonstrated as much (offender’s submissions dated 6 July 2026 at [16]-[17]; T681.1-681.23; T682.21):

“Q. Starting with that assumption and with reference to photograph 1, it's your opinion - is this correct - that those three injuries were the source of the blood that you can see in that photographs, is that correct?

A. That's correct.

Q. As I understand your evidence, you couldn’t say where in the room the injuries occurred based on what you can see in the photograph, is that correct?

A. That's correct.

Q. But is this correct: that you can say that the bleeding commences in the corner close to where you could see that corner table, is that correct?

A. It's commenced down that end of the bed, yes.

Q. Is it also your opinion from the evidence that you’ve given that there's no evidence to suggest that there was any subsequent injury or source of blood after that?

A. That's correct.

Q. So what we have is we've got the bleeding commencing in the corner and then moving away from that corner down alongside the bed and then into the hallway, correct?

A. That's correct.

…

Q. I'll just re-ask that, and you can confirm for me if that is what your evidence is. As I understand it, you’ve said that based on your interpretation of the blood patterns, there does not appear to be any subsequent injuries occurring to this person - the source of the blood - from the time that they start to leave that corner or that position around near where marker E is, is that correct?

A. That's correct.”

72. The offender’s submission was that the fatal injury occurred in the initial exchange, and that the blood spatter evidence strongly supported this (or, at a minimum, it raised doubt about the fatal stabbing occurring when the offender interacted with Mr Kirk). In relation to the blood spatter evidence, the offender submitted that the extracted passage above (which was the only evidence from Detective Sergeant Kremers relied upon) supported two matters: that the majority of the blood was in the corner of the room and that the blood “directionality” was “moving from the corner towards the end of the bed and towards the door”. It necessarily followed, the offender argued, that Mr Kirk had been stabbed in the corner of the room when the offender was not located anywhere near him, and that the Court should entertain doubt about the infliction of the fatal injury occurring after that time.

73. In my view, the blood spatter evidence is of limited assistance, and I do not accept the offender’s argument that it undercuts the accounts from Ms Antaw, Mr Gardoll, Mr Millhouse and Ms Fletcher which, taken together, prove beyond reasonable doubt that the offender inflicted the fatal stab wound to Mr Kirk. That is for the following reasons.

74. First, it is important to give the evidence from Detective Sergeant Kremers some context. As he made clear in his evidence (in a passage not relied upon by the offender but preceding the evidence upon which he did rely), the “assumption” referred to by Detective Sergeant Kremers upon which he gave this evidence was that the three injuries sustained by Mr Kirk “caused the bleeding that can be seen in the bedroom” (T680.50). Following on from this, his evidence was that he could not localise where any of the injuries occurred based upon the photographs; all he could say was that the bleeding commenced “in the corner” (see, for example, Exhibit F, photograph 1; T681.10). In my view, the evidence from Detective Sergeant Kremers rises no higher than the bleeding occurred in the general area of the side of the bed shown in the photograph, albeit it commenced “in the corner and then [moved] away from that corner down alongside the bed and then into the hallway” (T681.20). In my view, this evidence merely demonstrates, as the Crown submitted, that the three injuries sustained by Mr Kirk were all occasioned in that same physical space.

75. Secondly, the offender’s submission assumes (or appeared to assume) that, at no point, did he enter “that same physical space” or was even proximate to it. Contrary to this argument, I am satisfied that the physical confrontation that the offender had with Mr Kirk occurred in this space. When Mr Fitton fled from the bedroom, it was then that the offender, according to Ms Antaw’s evidence (which I accept) “was up off the bed and stepping into [Mr Kirk] as well” and, in doing so, “also moved down the side of the bed” and stabbed Mr Kirk (T116.10). I am also satisfied that this was when, and where, Ms Antaw observed the offender, “with a blade, just quickly [stab Mr Kirk] twice” (T119.35-119.40). It was at this point, I am satisfied, that Mr Kirk kept saying: “[w]hy are you trying to kill me, bro? I’m not – I don’t have a weapon. Like, what are you doing?” (T120.35).

76. It follows that I am satisfied, beyond reasonable doubt, that the offender inflicted the fatal stab wound to Mr Kirk’s chest.

The relevant statutory provisions

77. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) (‘Crimes Act’). The maximum penalty is life imprisonment: s 19A(1) of the Crimes Act.

78. The Crown did not submit that a life sentence should be imposed. I am not satisfied that a life sentence is appropriate in this case.

79. Section 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘CSP Act’) (when read with the Table – Standard non-parole periods, item 1) provides that the standard non-parole period for this offence is 20 years.

80. In sentencing the offender, I am required to be mindful of the two legislative guideposts – the maximum sentence of life imprisonment and the standard non-parole period of 20 years, identify all factors relevant to the sentencing task and consider their significance and then assess the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [26]-[27].

81. I have also had regard to the purposes of sentencing as expressed in s 3A of the CSP Act:

3A Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows—

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.

82. These matters will be considered in the course of dealing with the submissions that were raised.

The objective seriousness

83. An assessment of the objective seriousness of the offending is a critical component of the sentencing process: R v Campbell [2014] NSWCCA 102 at [27]; R v Van Ryn [2016] NSWCCA 1 at [133]-[136] (‘Van Ryn’). It ensures that an adequate sentence is imposed in accordance with s 3A(a) of the CSP Act, and that the sentence is proportionate to the gravity of the crime: Van Ryn at [134]-[135]; FL v R [2020] NSWCCA 114 at [58] (‘FL’). The assessment also enables use to be made of the legislative guideposts, being the maximum penalty and any prescribed standard non-parole period: R v West [2014] NSWCCA 250 at [27]; Van Ryn at [135].

84. The parties submitted that the Court should evaluate the offending using a notional range: the Crown submitted that the offending should be assessed “about the mid-range of objective seriousness for offences of this kind” (Crown submissions at [56]), whereas the offender submitted that the offending should be “below the mid-range of objective seriousness”, assuming that the Court found the offender did not inflict the fatal stab (offender’s submissions dated 6 July 2026 at [4A]). It should be observed that, although it is not a requirement to assess the objective seriousness of a standard non-parole period offence by reference to a notional range, it has been considered not unhelpful to do so: FL at [58]-[60]; Dorsett v R [2024] NSWCCA 192 at [148]-[150].

85. In the event that a finding was made that the offender inflicted the fatal stab wound to Mr Kirk, the parties agreed upon two matters. The first was that the offender should be sentenced on the basis that he intended to inflict at least grievous bodily harm – not on the basis that he intended to kill Mr Kirk (Crown submissions at [51]; offender’s submissions dated 6 July 2026 at [4A](ii)). The second was that the offender agreed with the Crown’s “notional assessment” – namely, that the offending was at “about the mid-range of objective seriousness for offences of this kind” (T119.5; Crown submissions at [56]).

86. Beyond the fact that the offender should be sentenced on the basis that he intended to inflict, at least, grievous bodily harm, and the facts that I have already found, there are limited matters over which there was a degree of dispute. They are dealt with in what follows.

87. The Crown submitted “[t]here was a degree of pre-planning in the commission of the offence”, whereas the offender submitted that the offending “involved limited planning” which “was minimal and unsophisticated” (Crown submissions at [52](iv); offender’s submissions dated 6 July 2026 at [4A](iii), [27]).

88. There was clearly a degree of planning involved. Having been told to secure drugs from [REDACTED], the offender went to that location, but he and Mr Fitton returned to [REDACTED] shortly afterwards. The offender accepted that his “primary state of mind” was to rob Mr Kirk – which, given the earlier attendance at the premises and the initial exchanges prior to the physical confrontation in the main bedroom, meant to rob Mr Kirk of drugs (offender’s submissions dated 6 July 2026 at [26]).

89. Having returned to the premises, they entered it, uninvited and unannounced, and immediately confronted Mr Kirk about drugs whilst he and Ms Antaw were in bed. Mr Kirk was unarmed and, as I have earlier found, was most likely asleep when the two men entered the room. The men “were angry”.

90. The offender submitted that any agreement that was formed in relation to the infliction of grievous bodily harm “was likely formed very shortly before the infliction of the wound took place” (offender’s submissions dated 6 July 2026 at [27]), whereas the Crown submitted that the degree of orchestration is such that it should be found that there was “some pre-agreement that involved violence beyond a spontaneous scuffle at the foot of the bed” (T85.30). I accept the Crown’s submission, but, beyond that, it is simply not possible to make any firmer finding. I have not overlooked the evidence relied upon by the Crown from Mr Johnson – namely, his evidence to the effect that one of the men said: “You’re dead[,] fucking dog” – but am unpersuaded, due to some of the inconsistencies with this evidence to which Mr Trevallion SC referred, to act upon it.

91. Given the matters earlier referred to, as informed by the approach of the parties, my assessment is that the offending is at the mid-range of objective seriousness.

Aggravating factors: s 21A(2) of the CSP Act

92. The parties accepted that there are a number of relevant aggravating factors to be taken into account in determining the appropriate sentence to be imposed – as follows (Crown submissions at [7]; offender’s submissions dated 6 July 2026 at [29]).

The offender was on conditional liberty: s 21A(2)(j)

93. The Crown submitted, and the offender accepted, that at the time of the offending the offender was on conditional bail for the assault occasioning actual bodily harm offence that he committed on 25 June 2023 – and I accept and find that he was (Exhibit A, pages 11 and 42; offender’s submissions dated 6 July 2026 at [34]).

94. Given those circumstances, the parties accepted, and I find, that this is an aggravating factor to be taken into account in determining the appropriate sentence for the offender: s 21A(2)(j) of the CSP Act; Field v R [2020] NSWCCA 105 at [84]-[87] (Crown submissions at [58](c), [61]; offender’s submissions dated 6 July 2026 at [29](iv)).

The offending was committed in company: s 21A(2)(e)

95. The parties agreed, and I find, that the offending was committed in company (Crown submissions at [58](a), [59]; offender’s submissions dated 6 July 2026 at [29](i)).

96. In this respect, I accept, as the Crown submitted, that the presence of the two men – unannounced and uninvited – in the bedroom of Ms Antaw’s home clearly had the effect, and was designed to have the effect, of giving weight to the exchanges and threats that unfolded: Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 at [101].

97. I find this to be an aggravating factor to be taken into account in determining the appropriate sentence for the offender: s 21A(2)(e).

The offending was committed in the home of the victim or any other person: s 21A(2)(eb)

98. The Crown submitted that the offending occurred “in the home of the victim or any other person” (Crown submissions at [58](b), [60]), and the offender accepted that the “offence was committed in the home of the deceased” (offender’s submissions dated 6 July 2026 at [29](ii)).

99. The offender’s submissions implicitly recognised that Mr Kirk was in a relationship with Ms Antaw and, as part of that, often attended and slept there. The Crown’s submissions noted that Mr Kirk was staying at Ms Antaw’s home, that he was, at that time, “in a relationship with” her and, possibly in anticipation of an argument (which was not ultimately made by the offender), emphasised that the statutory language extends to “the home of the victim or any other person” (Crown submissions at [60] – emphasis added).

100. Given the approach of the parties, and the fact that “a home is a place which should be safe and secure for persons who reside, or are otherwise present, at such a place” (Jonson v R [2016] NSWCCA 286; 263 A Crim R 268 at [41]), I accept and find this matter is an aggravating factor to be taken into account in determining the appropriate sentence for the offender.

The offending involved the actual use of a weapon: s 21A(2)(c)

101. The offender accepted that the offending involved the actual use of a weapon – being a knife (offender’s submissions dated 6 July 2026 at [29](iii)). The Crown did not make any submissions about this matter.

102. Whilst there is a specific statutory prescription providing that an “aggravating factor” arises when “the offence involved the actual… use of a weapon” (s 21A(2)(c)), I find the offender’s use of the knife to be only “technically” aggravating. That is because, given the offence is murder, the use of that weapon does not significantly add to the degree of aggravation: Milat v R; Klein v R [2014] NSWCCA 29 at [95]; R v Dion [2021] NSWSC 1043 at [59].

Parity

103. On 7 May 2026, Mr Fitton was convicted of two offences: hindering the apprehension of a person who has committed a serious indictable offence, contrary to s 315(1)(c) of the Crimes Act (count 2); and hindering the investigation of a serious indictable offence committed by another person, contrary to s 315(1)(a) of the Crimes Act (count 4). For that offending, Mr Fitton was sentenced to a period of imprisonment consisting of a non-parole period of 11 months and 7 days (commencing from 16 May 2025) and a head sentence of 1 year and 3 months.

104. Stevie-Lee Jordan entered a guilty plea to a single count of hindering the investigation of a serious indictable offence, contrary to s 315(1)(a) of the Crimes Act. She is yet to be sentenced.

105. No parity considerations arise in sentencing the offender given the markedly different nature of his offending.

Victim impact statements

106. The Crown tendered, and read, victim impact statements from Mr Kirk’s mother and father, John and Judy Kirk, and from his older sister, Brandy Alexander.

107. Each of them gave a heartfelt and moving account of the enduring impact of Mr Kirk’s death upon them and their family, and the grief and pain they endure. It cannot have been easy for them to have prepared these statements, and they showed great courage in doing so.

108. It is appropriate to take into account these statements on the basis that the harmful impact of Mr Kirk’s death on his family is an aspect of harm done to the community: s 30E(3) of the CSP Act. I have approached the matter on this basis.

109. Mr Kirk was a son, a brother, a father, an uncle and a friend to many.

110. It important to acknowledge that the taking of Mr Kirk’s life is a tragedy that has caused profound grief and sorrow to his family and those close to him. On behalf of the Court, I extend my sincere sympathy to them for their loss.

Subjective considerations

111. The offender did not give evidence at the sentence hearing. A report from a consultant psychologist, Ann Marie De Santa Brigida, dated 2 July 2026 was tendered on his behalf (Exhibit 1).

112. The offender was born on [REDACTED]. He is currently 39 years of age and was 36 years of age at the time of the offending.

Remorse: s 21A(3)(i)

113. Remorse, as a mitigating factor, may only be taken into account if “the offender has provided evidence that he… has accepted responsibility for his… actions” and “has acknowledged any injury, loss or damage caused by his… actions”: ss 21A(3)(i)(i)-(ii) of the CSP Act.

114. As I have noted, the offender did not give evidence. The offender did, however, provide a letter to the Court (Exhibit 2).

115. The Crown argued that the Court should not find that the offender is remorseful and, in relation to the letter to the Court, submitted that, consistent with authorities such as Imbornone v R [2017] NSWCCA 144 at [57] and Lai v R [2021] NSWCCA 217 at [79]-[80], the letter should be disregarded entirely, as it is bereft of weight. It is unnecessary to address the Crown’s submissions in relation to Exhibit 2, given Mr Trevallion SC did not seek a finding that the offender was remorseful (T118.5).

116. The offender has not satisfied me that he is remorseful.

Previous convictions: s 21A(3)(e)

117. A mitigating factor to be taken into account in determining the appropriate sentence arises when “the offender does not have any record (or any significant record) of previous convictions”: s 21A(3)(e).

118. That is not this case. As the Crown submitted, the offender has a “long and extensive criminal history which involves violent criminal offences committed both in New South Wales and Queensland” (Crown submissions at [62]). For the offending in New South Wales, this has included assault occasioning actual bodily harm (H… 7451 – described later in more detail: see [159]ff, below). The offences committed in Queensland, as the Crown submitted, included “armed robbery, assaulting a police officer whilst armed/pretending to be armed with a weapon and entering a dwelling with intent by break” (Crown submissions at [63]; Exhibit A, page 25).

119. The parties accepted, and I find, that whilst not an aggravating factor on sentence, the offender’s criminal history disentitles him to any leniency (Crown submissions at [66]; offender’s submissions dated 6 July 2026 at [28]).

Unlikely to re-offend and rehabilitation prospects: ss 21A(3)(g) and (h)

120. Mitigating factors to be taken into account in determining the appropriate sentence include that “the offender is unlikely to re-offend” (s 21A(3)(g)) and the fact that an “offender has good prospects of rehabilitation, whether by reason of the offender’s age or otherwise” (s 21A(3)(h)).

121. Having regard to the offender’s criminal history, I am not satisfied that he is unlikely to reoffend upon release. The offender did not seek a contrary finding, nor were any submissions made about this matter.

122. On behalf of the offender, it was submitted by Mr Trevallion SC that he had “some prospects of rehabilitation”, albeit the evidential basis for that finding was not identified (T118.5). In particular, nothing within the report from Ms De Santa Brigida was relied upon to support any finding in connection with the offender’s prospects of rehabilitation.

123. I am mindful of what the offender has said in his letter to the Court about him starting rehabilitation and ceasing contact with “negative influences” (Exhibit 2). I have also had regard the similar comments from the offender’s partner in her letter to the Court (Exhibit 3). Notwithstanding what is contained in these letters, I consider the offender’s prospects of rehabilitation to be poor. The offender has not satisfied me that he is remorseful and has not persuaded me (or sought to persuade me) that he has any insight into his offending. His history of drug use and offending, as submitted by the Crown, further support this finding.

The Bugmy principles and the offender’s mental health issues

124. As noted above, the offender tendered the report from Ms De Santa Brigida, dated 2 July 2026 which was prepared following assessments of the offender (conducted by AVL) on 10 and 26 June 2026.

125. The submission put on behalf of the offender was that the “Bugmy factors” operate to reduce his moral culpability for the offending, given his “deprived and traumatic background” (offender’s submissions dated 8 July 2026 at [23]).

126. In terms of his background, the offender relied upon the following history contained in the report from Ms De Santa Brigida (at [4.5]):

“Mr Peckham stated that between the ages of approximately three and ten, he would stay overnight with his mother, in order to maintain some relationship with her. He reported that during these occasions he would frequently witness his mother ‘being bashed’ by different boyfriends, and he would witness them using illicit substances. He stated that he was not physically assaulted by his mother’s partners, but on one occasion he ‘was bashed’ by his uncle and hit repeatedly on one occasion with a belt. He reported that although his grandparents never assaulted him, he was ‘flogged by his grandmother’s sister with metal poles’, and at one point he was dragged down two flights of stairs with a broken leg’. Mr Peckham stated that when he was in year 3, the father of a school friend sexually assaulted him on one occasion.”

127. In terms of the offender’s substance abuse, Mr Trevallion SC drew attention to the history in Ms De Santa Brigida’s report which stated that the offender commenced “[experimenting] with cannabis” at the age of 13, moved on at age 20 to crystal methamphetamine, which thereafter became “his primary substance abuse” (offender’s submissions dated 8 July 2026 at [6]).

128. The Crown accepted that the offender’s moral culpability was reduced due to the “Bugmy consideration[s]” (T91.15-91.45). The offender’s position on this issue essentially aligned with the Crown’s.

129. The relevant principles to which the submissions refer to derive from the decision in Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’). Those principles relate to the impact that an offender’s history of disadvantage and deprivation has on sentencing, and they recognise that profound disadvantage during childhood or adolescence “may have an inhibitory effect on the development of values, on the acquisition of a moral compass, and on the capacity to make behavioural decisions in accordance with prevailing social norms”, with the consequence that an offender may not be as morally culpable as they otherwise would be for their offending: R v MJ [2023] NSWCCA 306 at [5] (‘MJ’), citing Bugmy at [40] and [43].

130. As “the effects of profound deprivation do not diminish over time”, the principles “are to be given full weight in the determination of the appropriate sentence in every case” and, given a background of profound deprivation “is a feature of the person’s make-up[,] [it] remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending”: Bugmy at [42]-[44].

131. Relevantly, some other matters about these principles should be noted. First, their application is not discretionary once the circumstances attracting their operation are engaged, albeit that countervailing factors, including the protection of the community, may affect their impact: R v Irwin [2019] NSWCCA 133 at [3] and [5]; Dungay v R [2020] NSWCCA 209 at [138]-[141] (‘Dungay’); Hoskins v R [2021] NSWCCA 169 at [56] (‘Hoskins’). Nevertheless, that “does not mean that they need to be given the same weight in every case”, but rather it is a matter of evaluation in each sentencing exercise: Dungay at [139]. Secondly, there is “no magic in the word ‘profound’, and it is not necessary to characterise an offender’s childhood as one of ‘profound deprivation’ before the principle is engaged”: Hoskins at [57]. Thirdly, the principles do not require the establishment of a causal link between the circumstances of deprivation and the offending: Dungay at [148]-[153]; MJ at [5]-[15].

132. I accept, as the parties submitted, that the offender’s background during his childhood and adolescence has impacted upon his make-up and reduces his moral culpability. I have given full weight to this and more broadly considered the offender’s history and background when arriving at the appropriate sentence as part of the instinctive synthesis.

133. In relation to the offender’s mental health conditions, the submissions of the parties focused upon the conclusions of Ms De Santa Brigida contained in section 8 of her report.

134. The Crown accepted that the evidence demonstrated that the offender met the diagnostic criteria for post-traumatic stress disorder (‘PTSD’) “against a background of complex trauma” attributable “to the physical abuse he was subjected to and the abuse he witnessed during childhood, in addition to the sexual abuse…” (Exhibit 1 at [8.2]; T95.5-95.20). That “background of complex trauma” was outlined in Ms De Santa Brigida’s report at [4.5] (see [126], above). The Crown did not, however, accept that the offender had been formally diagnosed with attention deficit hyperactivity disorder (‘ADHD’). In relation to the reference to “sexual abuse”, notwithstanding that Ms De Santa Brigida’s report contained no history about what that abuse in fact involved (other evidence suggests that it may have involved “sexual touching”, but again, that was where the matter was left), the Crown submitted that, given the general terms of the evidence, the Court should act on the basis that it occurred.

135. The offender did not submit to the contrary, save in one respect: he argued that the fact he has not been formally diagnosed with ADHD is of little consequence, because what is material is whether he possesses those symptoms − not any diagnostic label. I accept that submission.

136. The offender submitted that the existence of his PTSD and his symptoms consistent with ADHD are such that his time in custody would be more onerous: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (‘De La Rosa’). Subject to what follows, I accept that submission and have taken into account the existence of those matters as moderating the overall sentence, because the offender’s experience in custody may, to a degree, be more onerous by reason of them.

137. My finding on this issue is deliberately measured because the evidence presented was limited and, no doubt informed by this fact, so too were the submissions – which were confined to a submission that “[t]he offender’s psychological conditions will make his time in custody more onerous than that of other prisoners” (offender’s submissions dated 8 July 2026 at [29](i)). In her report dated 2 July 2026 (Exhibit 1), Ms De Santa Brigida “notes that for an individual with such a complex history, incarceration will prove more onerous and this is attributed particularly [to] his underlying trauma, which will mean that he will be easily triggered in custody” (Exhibit 1 at [8.4]). Nevertheless, she did not explain what this might involve. The offender’s statement to the Court (Exhibit 2) did not address this issue, and no other evidence was identified to support a finding, less still a more particular finding, about this matter.

138. Separately, I have taken the offender’s mental health conditions into account in moderating, to a degree, the weight to be given to general deterrence in determining the overall sentence: De La Rosa at [177] (second dot point). The offender also argued that his mental health conditions served to lessen his moral culpability in line with what was said in De La Rosa. In that case, it was accepted that the moral culpability of offenders with mental health conditions may be reduced where they contribute “to the commission of the offence in a material way”: at [177] (first dot point). The offender’s submissions did not seek to demonstrate any such contribution to his offending. Notwithstanding this, I have, favourably to the offender, taken this matter into account when moderating the offender’s moral culpability for the offending.

139. Notwithstanding that I have moderated the offender’s moral culpability for the offending, given my earlier findings (see [132] and [138], above), general deterrence remains important, as does adequately punishing him, denouncing his conduct and holding him accountable for it: s 3A of the CSP Act.

The conduct of the trial: s 22A of the CSP Act

140. A sentencing court “may impose a lesser penalty” due to the defence facilitating the administration of justice: s 22A(1) of the CSP Act. A lesser penalty imposed, however, “must not be unreasonably disproportionate to the nature and circumstances of the offence”: s 22A(2) of the CSP Act.

141. The Crown conceded that the offender “through his counsel, has facilitated the administration of justice in the way” the trial was conducted, noting that, although the original estimate of the trial length was “in the order of 5-6 weeks”, there was “agreement between the parties”, “a narrowing of issues” and a consequential reduction of the number of witnesses required to be called and the trial length (Crown submissions at [76]). Given those circumstances, and recognising that it remained a matter for the Court as to whether it would act upon that concession, the Crown submitted that it was open to the Court, in accordance with s 22A(1), “to reduce the penalty imposed on the offender for facilitating the administration of justice” (Crown submissions at [77]).

142. The Crown emphasised, however, that any reduction provided “should be modest” and not, given the constraint provided by s 22A(2), “be unreasonably disproportionate to the nature and circumstances of the offence” (Crown submissions at [78]-[79]).

143. The offender, by way of response, adopted “the Crown’s very fair submission” on s 22A (offender’s submissions dated 6 July 2026 at [31A]).

144. It is a little difficult to meaningfully assess the nature and extent of the offender’s co-operation based simply upon submissions, particularly in the absence of the necessary counterfactual and an explanation for it. Nevertheless, given the stance of the parties, I am prepared to modestly reduce the penalty to be imposed upon the offender to reflect his facilitation of the administration of justice. However, as the parties accepted during submissions, it is not mandatory to specify the penalty which would be imposed but for the facilitation of the administration of justice, notwithstanding that, in particular cases (of which this is not one), it might be desirable to do so: Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322 at [104]-[105].

Special circumstances

145. The offender submitted that there were special circumstances that warranted a variation in the statutory ratio, initially for three reasons: first, his “psychological conditions will make his time in custody more onerous than that of other prisoners”; secondly, the “accumulation of sentences”; and, thirdly, the offender is “at risk of institutionalisation” (offender’s submissions dated 8 July 2026 at [29]; offender’s submissions dated 6 July 2026 at [32]-[33]).

146. During submissions, the offender advanced a fourth reason for why a finding of special circumstances should be made – namely, because he “will require a longer period of supervision that would benefit him and the community” (T118.40).

147. The Crown, however, submitted that there should be no finding of special circumstances and, thus, no variation to the statutory ratio.

148. In relation to the first reason that was argued to support a finding of special circumstances, Mr Trevallion SC accepted that if the matter is taken into account when fixing the sentence to be imposed, it should not be taken into account in that same way to support a finding of special circumstances. The explanation for that approach was authoritatively explained by Spigelman CJ in R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [67] as follows:

“Where a circumstance is taken into account by way of reduction of the head sentence, the application of the statutory proportion will have the result that the circumstance also reduces the non-parole period. Before a sentencing judge further reduces the non-parole period by reason of that circumstance, he or she must undertake a process of analysis which travels beyond that which has been undertaken in the course of determining the head sentence.”

149. Following on from the above, it is clear that double counting “for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided”: R v Fidow [2004] NSWCCA 172 at [18]. It is also clear that double counting will not occur “if the analysis of the relevance of a particular circumstance to the non‑parole period ‘travels beyond’ the analysis of its relevance to the head sentence”: R v AA [2017] NSWCCA 84 at [74]; PW v R [2019] NSWCCA 298 at [33]-[36].

150. Here, the first reason that was argued to support a finding of special circumstances has been taken into account in reducing the head sentence. I have already taken into account the existence of the offender’s PTSD, that he has symptoms of ADHD and that, to a degree, his time in custody may be more onerous by reason of them and they have also been considered in relation to the offender’s reduced moral culpability and when fixing the term. In relation to the “accumulation of sentences”, I deal with this when determining when the sentence is to commence as part of my assessment of totality: see [159]ff, below. To be clear, for the first reason, no additional “analysis” was advanced by the offender beyond the analysis factored into the head sentence.

151. In relation to the “risk of institutionalisation”, it was submitted on behalf of the offender that since 2009 he has spent – either in New South Wales or Queensland – in excess of 10 years in custody. It was submitted that the “bare numbers themselves” informed the risk of institutionalisation and, building upon this, that such a risk can support a finding of special circumstances.

152. The authorities establish that the risk of institutionalisation may warrant, but does not compel, a finding of special circumstances: Jackson v R [2010] NSWCCA 162 at [24]-[25]; Beale v R [2015] NSWCCA 120 at [68] (‘Beale’).

153. I am unpersuaded by the offender’s submission and decline to make a finding of special circumstances based on this suggested risk, for the following reasons.

154. Although the offender’s submissions did not extend to explaining what, precisely, was meant by the term “risk of institutionalisation”, in Beale, it was said that the “risk of institutionalisation” is a risk that an offender (at [68]):

“…[becomes] so conditioned to an institutional environment that their release into society leads to a heightened risk of their reoffending… If such a finding is made then it can justify a reduction in the non-parole period and an increase in the additional term to facilitate the offender’s supervision on parole. However the mere identification of an offender as being institutionalised or at risk of institutionalisation does not compel a sentencing Court to find special circumstances and reduce the non-parole period. The overall purpose of the exercise is to facilitate the offender’s rehabilitation. To that end ‘there must exist significant positive signs which show that if the offender is allowed a longer period on parole, rehabilitation is likely to be successful’ (R v Tuuta [2014] NSWCCA 40 at [57]; see also R v Carter [2003] NSWCCA 243 at [20]).”

155. Here, there is no evidence at all that might assist in identifying whether the risk exists or its magnitude aside from the “bare numbers”. The offender did not submit that there was anything in the report from Ms De Santa Brigida directed to this issue, or elsewhere in the evidence. Although the “bare numbers” is a starting point, there was no specific submission put that the offender was at a “heightened” risk of reoffending upon his release in the way described above, and no submission directed to what might occur in terms of rehabilitation if there was, say, an extended period of supervision to enable the assumed rehabilitation to occur. There are other difficulties, including, in line with Beale, I have not found that the offender has favourable prospects of rehabilitation.

156. Given the significant shortcomings in the evidence, I am unpersuaded that this is a matter upon which to find special circumstances.

157. In relation to the fourth reason (essentially, the argument that the offender would benefit from a longer period of time under supervision), the Crown submitted that, given a lengthy sentence will inevitably be imposed, “adequate time will be available for the offender to engage with any community-based supports during the parole period provided by the statutory ratio” (Crown submissions at [11]). I accept the Crown’s submission. Further, a reduction in the non-parole period would result in a disproportionately lenient sentence.

The sentence commencement

158. No penalty other than imprisonment is appropriate.

159. The Crown submitted, and the offender accepted, that the principle of totality should be applied to determine the commencement date of the offender’s sentence. The application of that principle is necessary because, following the offender’s arrest on 19 September 2023, he was in custody for the current, as well as other, offending until 15 June 2026. Since that date, the offender’s time in custody has been solely referable to the offending for which he is to be sentenced.

160. I will briefly outline the offending, and thereafter the relevant statutory provisions and principles that apply in the present circumstances.

The Dubbo and Newcastle offending

161. On 8 July 2023, the offender was arrested and charged with two offences arising out of events that occurred in a nightclub in Dubbo, NSW on 25 June 2023: common assault and assault occasioning actual bodily harm (H… 7451). Put simply, the offender punched the victim in his face on a number of occasions, causing significant injuries and, having done so, the offender then fled the premises (Exhibit A, pages 43-44). The incident was captured on CCTV footage. The offender was granted conditional bail for this offending.

162. On 11 April 2024, the offender was convicted of assault occasioning actual bodily harm (H…7451) and sentenced to imprisonment for 14 months with a non-parole period of 10 months (Exhibit A, pages 10-11). The sentence commenced on 17 August 2023 and the non-parole period expired on 16 June 2024 (Exhibit A, page 11).

163. On 16 August 2023, the offender was charged with a number of offences that occurred on or about 16 August 2023 (“the Newcastle offences”: H…0288). Subsequently, the offender pleaded guilty to 3 offences – namely: police pursuit – not stop – drive dangerously – first offence, contrary to s 51B(1) of the Crimes Act (sequence 5; the goods in custody charge, being sequence 6, was placed on a Form 1 to be taken into account when sentencing for this offence: see Exhibit A, page 45; Exhibit B, page 2); aggravated assault with intent to take and drive a motor vehicle armed with a weapon, contrary to s 154C(2) of the Crimes Act (sequence 3: Exhibit A, page 45; Exhibit B, page 2); and aggravated enter dwelling with intent to commit a serious indictable offence, namely larceny, knowing a person therein, contrary to s 111(2) of the Crimes Act (sequence 12: Exhibit A, page 45; Exhibit B, page 2).

164. The offender was arrested for this offending on 17 August 2023 and was remanded in custody (Exhibit A, page 48; Exhibit B, pages 2-3).

165. On 19 September 2023, whilst the offender was in custody for the Newcastle offences, he was arrested for the murder of Mr Kirk (Exhibit A, page 1).

166. Briefly, based upon the agreed facts, the Newcastle offending involved:

167. Sequence 5: the offender engaging in a police pursuit whilst driving Mr Fitton’s grey Audi Q5, on occasions at high speeds well in excess of the sign-posted speed limits in place, through the suburbs of Newcastle, disobeying other road rules whilst doing so (agreed facts at [2]-[11]: Exhibit A, pages 45-46).

168. Sequences 3 and 12: the offender, having abandoned the Audi Q5, ran into the victim’s garage and into the kitchen inside the premises. The victim confronted the offender and the offender grabbed a set of car keys off the kitchen bench and ran back into the garage in order to take one of the cars inside it. The offender threatened the victim and struck him with a screwdriver, causing an injury which bled. Fearing for his safety and damage to his home, the victim opened the garage roller door, and the offender drove off in the victim’s car (agreed facts at [12]-[27]; Exhibit A, pages 46-48).

169. In relation to the Newcastle offences, the offender was sentenced to an aggregate sentence of imprisonment of three years and nine months, with a non-parole period of two years and five months (Exhibit A, page 1). The sentence commenced on 16 January 2024 and expires on 15 October 2027, with the non-parole period expiring on 15 June 2026 (Exhibit A, page 11). When imposing this sentence, the sentencing judge (Ellis DCJ) commenced the offender’s sentence “on a date which will result in 50% concurrence with and 50% accumulation upon” the 10-month non-parole period for the Dubbo offending (Exhibit B, page 3).

Discussion and consideration

168. When sentencing an offender, “any time for which the offender has been held in custody in relation to the offence” must be taken into account by the sentencing court (s 24(a) of the CSP Act) and, when determining when that sentence is to commence, the sentencing court “must take into account any time for which the offender has been held in custody in relation to the offence” (s 47(3) of the CSP Act). In this respect, “[w]hilst there is no absolute rule as to how such pre-sentence custody is to be taken into account by a sentencing court”, it has been acknowledged that “backdating the commencement of a sentence to directly reflect the period of pre-sentence custody is the usual course adopted”: Salafia v R [2015] NSWCCA 141 at [65]-[66]; Wiggins v R [2010] NSWCCA 30 at [3]. The sentence to be imposed will fully account for the time the offender spent in custody which is solely referable to the present offending, which the parties agreed was following the expiration of the non-parole period for the Newcastle offending (15 June 2026: see [167], above).

169. Further, in situations where the offender’s time spent in custody is not solely or exclusively attributable to the offences for which the sentence is being imposed, then it is a matter of discretion for the sentencing judge to determine whether – and, if so, to what extent – there should be backdating of the sentence: Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145 at [21]-[24]; Mattiussi v R [2023] NSWCCA 289 at [49].

170. As I have noted, the parties argued the matter on the footing that it required the application of the principle of totality and, as to the commencement date of the sentence to be imposed, accepted that it should be between 19 September 2023 and 15 June 2026 (T101.30-33).

171. More specifically, the offender’s submission was that, applying the principle of totality, his sentence should commence proximate to 19 September 2023 because, as a matter of substance, the Newcastle offending was with “the murder… in effect, part of one criminal episode committed on the same day” (offender’s submissions dated 6 July 2026 at [39]; T101.35-102.15). In short, the offender submitted that there should be very substantial concurrence. The Crown, on the other hand, whilst accepting that there should be a degree of “accumulation”, argued that 19 September 2023 was “not an appropriate date” particularly given the quite distinct nature of the offending (T122.15; Crown reply submissions at [14]-[16]). The parties accepted that, when determining issues of concurrence and cumulation, the Court is vested with a “broad discretion” (T102.15; 122.25; see in this respect, Greenyer v R [2016] NSWCCA 272 at [40]; Shannon v R [2022] NSWCCA 41 at [16]). To be clear, the submissions of the parties focused upon the commencement date and only upon accumulation between the sentence for the Newcastle offences and the one to be imposed for the current offending. (Notwithstanding, for the purposes of totality, I have considered the earlier offending H…7451 and in relation to special circumstances consider that no further adjustment is required, beyond that addressed below, particularly as I consider to do so would result in an unduly lenient sentence).

172. The principle of totality, which determines whether sentences should be served concurrently or consecutively, requires an assessment of whether the “sentence for one offence [can] comprehend and reflect the criminality for the other offence”: Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 at [27] (‘Cahyadi’).

173. In the present circumstances, applying the principle of totality, I consider there should be a moderate downward adjustment, given the offending is separate and distinct, such that “the sentence for one offence cannot comprehend the criminality of the other”: Cahyadi at [27]. To order otherwise will fail, I consider, to reflect the total criminality of the offending and its distinct nature, as the Crown submitted*.*

174. I therefore propose to commence the offender’s sentence on 16 January 2026.

175. It is necessary to return to special circumstances given the date I propose to commence this sentence.

176. In this situation, regard should be had to the effect of accumulating sentences upon the statutory ratio, even though s 44(2) of the CSP Act has no direct application. Specifically, as explained in Harris v R [2023] NSWCCA 44 at [17] (‘Harris’, citing Lonsdale v R [2020] NSWCCA 267 at [65]-[66]), where a sentencing judge imposes:

“… a sentence that cumulates upon an existing sentence such that the ratio of the total minimum period the offender must serve in custody compared to the total length of their sentence exceeds three-quarters to a substantial extent, then they must advert to that circumstance.”

177. As these decisions also establish, where “the effect of the sentence imposed [is] to produce a ratio of the combined non-parole period to the total combined sentence that…exceeds three-quarters” (Harris at [19]), that is a proper basis to make a finding of special circumstances so as to maintain “a ratio of approximately 75%”: R v Rae (No 2) [2024] NSWSC 713 at [101].

178. Given the offender has been in custody for the Newcastle offences since 16 January 2024, a variation in the statutory ratio is required in order to achieve an overall ratio of “approximately 75%” between the effective non-parole period and the head sentence when that earlier time is considered (Rae at [101]). I propose to adopt that course and find special circumstances so as to achieve that approximate overall ratio. The ratio, but for that finding and adjustment, would be in the order of 83% – given the combined non-parole period for the Newcastle offences (2 years) and the one to be imposed for the current offending (18 years) and the head sentence (24 years).

Sentence and orders

179. I make the following orders:

180. The offender, Mark Peckham, is convicted of the murder of George Kirk.

181. For the murder of George Kirk, I impose a sentence of imprisonment consisting of a non-parole period of 17 years 6 months commencing from 16 January 2026 and a head sentence of 24 years. The offender will become eligible to be released on parole on 15 July 2043. The head sentence expires on 15 January 2050.

182. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I direct your legal advisers to explain the significance of this fact to you.

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