NSWNSWSC

R v Rowe

[2019] NSWSC 1592

Supreme Court of NSW|2019-10-11|Before: Walton J, Legislation Amendment J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2019-10-11

Before

Walton J, Legislation Amendment J

Catchwords

[2010] NSWCCA 159 Braithwaite v R [2005] NSWCCA 451 Bugmy v The Queen (2013) 249 CLR 571
[2013] HCA 37 Charbaji v R [2019] NSWCCA 28 Cheung v R (2001) 209 CLR 1
[2001] HCA 67 Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575
[2004] HCA 46 Filippou v The Queen (2015) 256 CLR 47

Source

Original judgment source is linked above.

Catchwords

[2010] NSWCCA 159 Braithwaite v R [2005] NSWCCA 451 Bugmy v The Queen (2013) 249 CLR 571[2013] HCA 37 Charbaji v R [2019] NSWCCA 28 Cheung v R (2001) 209 CLR 1[2001] HCA 67 Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575[2004] HCA 46 Filippou v The Queen (2015) 256 CLR 47[2005] HCA 25 McDowall v R [2019] NSWCCA 29 Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39 Munda v Western Australia (2013) 249 CLR 600[2013] HCA 38 R v AO (2003) 138 A Crim R 189[2003] NSWCCA 43 R v Barbetta [2008] NSWSC 688 R v Booth [2014] NSWCCA 156 R v Borkowski (2009) 195 A Crim R 1[2001] NSWCCA 37 R v Henry (1999) 46 NSWLR 346[1999] NSWCCA 111 R v Hillsley (2006) 164 A Crim R 252[2000] NSWCCA 23 R v Lawrence [2005] NSWCCA 91 R v Loveridge (2014) 243 A Crim R 31[1999] HCA 54 R v Rhodes [2017] NSWSC 694 R v Scott [2005] NSWCCA 152 R v SDM (2001) 51 NSWLR 530[2001] NSWCCA 158 R v SLD (2003) 58 NSWLR 589[2003] NSWCCA 310 R v Thompson, R v Houlton (2000) 49 NSWLR 383

REMARKS ON SENTENCE

HIS HONOUR: On 13 March 2019, Jonwa Rowe ("the offender") entered a plea of guilty to a charge in the Griffith Local Court that he, on 25 March 2018, at Leeton in the State of New South Wales, murdered Steven O'Grady ("the deceased").
There was a Statement of Agreed Facts before the Court. At the outset of those agreed facts, the circumstances of the offence were briefly described.
On 25 March 2018 at Leeton in the State of New South Wales, the deceased died from injuries he had sustained at 2.09am on that day when he was struck from behind by the offender whilst riding a bicycle and subsequently was driven over on four occasions whilst lying on the roadway by the offender driving his dual cab utility.
The deceased was born on 23 September 1984 and aged 33 at the time of his death. The offender, born on 7 September 1992, then aged 25 years, was arrested on 26 March 2018 and charged with murder. He has been in custody bail refused on this charge from that date.
In arriving at the offender's sentence, the purpose of sentencing specified in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the Sentencing Act") must be borne in mind.
The offender's sentence must be determined having regard to the maximum penalty for the offence with which he has been convicted. The maximum sentence for the crime of murder is imprisonment for life (s 19A of the Crimes Act 1900 (NSW)).
The Court may nonetheless impose a sentence of imprisonment for a specified term pursuant to s 21(1) of the Sentencing Act. That course may not be taken if the Court is satisfied that the level of culpability in the circumstances of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can be only met through "a sentence of life imprisonment" (see s 61(1)).
In SW v R [2013] NSWCCA 103, Hall and Davies JJ stated at [149]: [149] In R v Harris Wood CJ at CL (with whom Giles JA and James J agreed) said: [84] The features required for qualification in the "worst case category" were defined in R v Twala (Court of Criminal Appeal, 4 November 1994, unreported) where it was said (at 7): ... in order to characterise any case as being in the worst case category, it must be possible to point to particular features which are of very great heinousness and it must be possible to postulate the absence of facts mitigating the seriousness of the crime (as distinct from the subjective features mitigating the penalty to be imposed)... (In The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [18]-[20], reference was made to the term "so grave as to warrant the maximum prescribed penalty").
It is for the Crown to establish that an offence falls within s 61(1) of the Sentencing Act. It did not seek to do so in this case. In my view, it is appropriate, notwithstanding the objective seriousness of the offence, and having regard to factors mitigating the seriousness of the offence reducing the offender's moral culpability, the plea of guilty, the demonstration of remorse and minor criminal history of the offender, to impose a finite term, and not, therefore, to impose the maximum sentence.
The standard non-parole period prescribed for the offence is 20 years imprisonment: s 54A(2) and Pt 4 Div 1A Table of the Sentencing Act.
In accordance with s 54A of the Sentencing Act, the seriousness of the offender's offence must be assessed by taking into account only the objective factors established on the evidence affecting its relative seriousness. The objective seriousness of the offender's offence is in issue between the parties.
As this case involves the use or a motor vehicle it is appropriate to refer to the often quoted passage in R v Murnin (Unreported, New South Wales Court of Criminal Appeal, Street CJ, 16 August 1985) ("Murnin"): A motor vehicle is a potentially dangerous - indeed lethal - machine. Those who drive motor vehicles on public highways, as do the overwhelming majority of members of our community, must inevitably accept that if they drive those potentially lethal machines dangerously and occasion death or grievous bodily harm, then the criminal law will exact from them a penalty appropriate to the degree of criminality which the whole of the circumstances disclose. The Legislature has always placed a premium upon human life and the taking of a human life by driving a vehicle dangerously is by virtue of this particular section to be regarded as a crime of some seriousness.
Furthermore, attention should be drawn to the following statement in R v Hall [2001] NSWCCA 202 ("Hall") at [66] (per Sully J, with whom Meagher JA and Howie J agreed, referring to that passage from Murnin): [66] That statement has been reaffirmed in this Court. When, as in the present appellant's case, the crime to be punished is not the crime of dangerous driving causing death, but the crime of murder where the murder weapon is a motor vehicle, then the foregoing statements of principle are strengthened even further, and must be applied accordingly by a primary sentencing Judge…
There must be a reasonable proportionality between a sentence and the circumstances of the crime. The gravity of the offence must be viewed objectively. The maximum sentence fixed defines the limits of sentence for the most serious class of case: R v Dodd (1991) 57 A Crim R 349 at 354, adopting the approach of Jordan CJ in R v Geddes (1936) 36 SR (NSW) 554 at 556.
In Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 ("Markarian"), the High Court stated (per Gleeson CJ, Gummow, Hayne and Callinan JJ) as follows (at [31]): [31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
Both the maximum penalty and the standard non-parole period are factors which must be taken into account on sentencing, together with other relevant matters, in the way discussed by the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 ("Muldrock") and as is provided in s 54B of the Sentencing Act.
The offender's moral culpability for his offence must also be taken into account.
In sentencing, the Court must also consider the aggravating and mitigating factors specified in s 21A of the Sentencing Act revealed by the evidence. Under s 21A, any other objective or subjective factors revealed by the evidence, which affect the relative seriousness of the offender's offence, must also be taken into account.
Questions of general and specific deterrence must also be considered.
Further, all of the relevant factors must be taken into account by way of the instinctive synthesis which the High Court discussed in Markarian at [51]. That requires that all of the factors relevant in the offender's case be considered, their significance discussed and a value judgment as to the appropriate sentence for the offender's offence made. The result arrived at must also ensure that there is a reasonable proportionality between the sentence imposed upon the offender and the circumstances of the crime he committed: R v Scott [2005] NSWCCA 152 at [15].
The sentencing judge is required to find the facts material to the sentence. In this case, those facts emerged entirely during the course of the sentencing proceedings: see Isaacs v R (1997) 41 NSWLR 374 at 378 (per Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) and Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [12]-[17]). The sentencing judge will determine the nature and gravity of the offending, including the facts which inform the offender's moral culpability: Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [70]. Any findings of fact that are adverse to the offender must be found beyond reasonable doubt. Matters in mitigation must be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27].
Finally, regard must also be paid to s 44(2) of the Sentencing Act, which requires that the balance of the term of the sentence imposed on the offender must not exceed one-third of the non-parole period imposed upon him, unless it is found that there are special circumstances which warrant a departure from that ratio in his case.
Before considering the circumstances of the offence and the offender, it is appropriate to make reference to the victim impact statements of family victims: Mrs Denise O'Grady, the mother of the deceased; Mr Stephen O'Grady, the father of the deceased; Mr Tony O'Grady, the brother of the deceased; Ms Sonia O'Grady and Ms Renee O'Grady, sisters of the deceased.
The victim impact statements came before the Court on application by the Crown, without objection by the offender, pursuant to s 28(4) of the Sentencing Procedure Act.
Section 3A(g) of the Sentencing Act provides that one of the purposes for which a court may impose a sentence on an offender is "to recognise the harm done to the victim of the crime and the community". The application of ss 3A(g) and 21A(2)(g) of the Sentencing Act ("the injury, emotional harm, loss or damage caused by the offence was substantial") were not intended to alter the common law principles on sentencing.
The victim impact statements "give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way" when the court is taking into account one of the purposes of sentencing, "which is to recognise the harm done to the victim of the crime and the community" (R v Halloun [2014] NSWSC 1705 at [46] (per McCallum J), cited with approval in Sumpton v R [2016] NSWCCA 162 (per Hoeben CJ at CL, with whom Hall and Bellew JJ agreed) at [153]).
Further, I accept the submission advanced by Mr Eric Wilson SC for the offender that, in making the determination the fundamental and guiding principle must be that all life is sacred and of equal value and that equality before the law means that courts should not put a value on one life that is greater than another (see R v Hines (No 3) [2014] NSWSC 1273 at [78]-[84] (per Hamill J)). The Court cannot try to put a value on an individual human life or what the loss of that life means to the loved ones of the deceased or the community in general and nor is that the purpose of punishment or the presentation of victim impact statements (see R v Barbetta [2008] NSWSC 688 at [18] (per Howie J)).
Mr Wilson properly accepted, however, that, when viewed in terms of the relevant principles, the Court could well be satisfied in this case that the effect on the immediate family is also an aspect of harm done to the community.
The Court acknowledges the understandable statements of grief that have been expressed by the O'Grady family and the continuing impact that the murder has had upon them. The effect on each of the members of the family differs but is profound and ongoing and recognised by the Court which listened closely as members of the family and those assisting them read their victim impact statements.
I do not propose to recite all of their statements and expression of hurt. I will refer to some parts of the statements of deceased's mother and father.
Mrs O'Grady stated: … Stephen and I were very close. My husband would call Stephen 'mummy's little boy'. If he wasn't working, we used to go out for lunch of a Monday and then go shopping. And he usually called in to see us most days. I miss that so much now. Stephen was always there for me. When my older brother passed away and my mum passed away 11 days later, Stephen was there to listen and ask me if I was all right. He wanted to see if there was anything he could do. It was good to know that he was there for me. … After Stephen was killed, I was having a really rough time. The doctor advised me to have counselling because I experienced times when I couldn't breathe. I have had counselling, but it didn't help. I went to see a psychiatrist for a while to, but I had to stop. I couldn't handle talking about it anymore. I take medication for depression and to help me sleep. I just try and keep busy.
Mr O'Grady stated: It's hard to know where to start to talk about the impact this has had on my life. Every day is a lost day. The change to our family is unbelievable. I'd like to be able to tell the offender one on one how I feel about him and what I think of him and that I want my son back. He's taken everything away from me, I'd like to take everything he's got away from him. I don't want to go out and see our son at the cemetery, I want him to still be in our lives. We were a happy go-lucky family and we've lost all that. I'm lost without Stephen, both of us are just lost. We go to work, come home and just sit. The spark of planning a life ahead is gone. We don't know what to do, where to go. We don't socialise as much and just stay at home far more that we used to. We used to have Sunday roasts as a family together, and go out regularly to family BBQs, birthdays and celebrations and we don't do that anymore. We are invited, but just can't get ourselves there. Now when we do get together it's to remember Stephen, rather than him being there as the life of the party. … He comes up in my head when I'm at work truck driving and I should be concentrating on the job. Not having my head in the right spot at work is a danger for my own life and everyone else on the road. I've had stints off work and got back and went well for a while. Things started building up again recently and I had a day where I kept thinking of Stephen again and couldn't put up with work anymore. I completely lost concentration and had to pull the truck off the road and shut it down. I started crying and I couldn't do anything other than sit there until someone turned up to help. At this stage I've taken some more time off work to see how I get on managing things at home myself. I'm not sure what the future holds in terms of getting back to work, what will happen when I exhaust my leave entitlements. …
After dealing with the objective features of the offence, I will turn to the degree of objective seriousness of the offence and the measure of the offender's moral culpability.
All murders are examples of a very serious offence. Nonetheless, whilst it may be difficult for the deceased's surviving family members, who have attended the sentencing proceedings and are present to hear sentence passed today, to accept that this murder should be categorised in seriousness relative to other murders on the spectrum of such crimes, the Court has to pass sentence for such offences in a very wide variety of circumstances. The ranking of the seriousness of the offence does not detract from the gravity of the offence as all lives are treated as equally precious in the criminal law. Various factors determine whether the taking of a life should, in the particular circumstances of a crime, be more or less heavily punishable.
The Agreed Statement of Facts describes in some detail the events immediately prior to the offence, part of which were captured on CCTV footage contained in the DVD disk marked tab 2 of Ex 2 in the proceedings and titled "CCTV footage from 26/03/2018 at the United Service Station, Leeton".
During the afternoon of Saturday 24 March 2018, the offender played in a cricket grand final. He was part of the Leeton and District Ferrets B-grade cricket team who won the B-grade grand final. The offender received a medallion with a green lanyard for his participation and wore it that night. After the match the offender attended the Leeton and District Bowling Club ("L&D Club") where he celebrated the win with some of his team mates. The offender consumed several alcoholic drinks at this location.
The offender told police that he drank one can of pre-mixed UDL after the cricket. He then walked with the team Captain Tony Tocin to the L&D Club for the cricket celebration and had one Victoria Bitter beer can on the way. At the L&D Club he said he had one schooner each of Carlton Dry and Carlton Draught beer, although he may have had some more drinks there after he had obtained something to eat.
During the evening the offender left the L&D Club for a short period of time and walked to Mr Tocin's residence in Grevillia Street, Leeton to change his clothes after they had become wet. Whilst at the residence he consumed one tablet of ecstasy before returning to the L&D Club.
Later in the evening, the offender left the L&D Club and attended the Leeton Hotel. He remained at the Leeton Hotel until closing time at around 1am on 25 March 2018. The offender consumed a number of alcoholic beverages at the hotel, telling Police in his interview that he had 5 cans of Red Bull and vodka, for a total of 10 drinks over all. He stated to police that his level of intoxication was a 7 or 8 out of 10, but that he could still drive, walk and talk. During his interview he revised his level of intoxication to be at a level of 6-7 out of 10.
The deceased entered the Wade Hotel in Leeton with three companions just prior to 8pm and remained socialising with friends until closing time at approximately 12am. The deceased consumed several alcoholic drinks, namely beer, during this period.
At around 12am the deceased attempted to assist Constable Grace Adamthwaite with a male person outside the Leeton Hotel as he was intoxicated. At this time another male was seen riding the deceased's push bike.
The deceased left the area on foot with two friends and walked to 3 Dunn Avenue in Leeton ("the Shed"). The male riding the deceased's pushbike joined them at this location. The deceased remained at the Shed until approximately 1.30am.
At 1.05am Highway Patrol police officers observed the offender urinating in a laneway off the main street in Leeton. Police approached the offender and spoke to him. He initially denied the offence but then admitted what he had done. A third police officer attended at the same time by chance and the offender was searched and later handed an infringement notice for the offensive behaviour. An officer present noted that he appeared moderately affected and he could smell "intoxicating liquor" on his breath. He noted that he was relatively stable on his feet and his speech was normal.
The offender then walked to the United Service Station with Paul Rook. Both men are seen on CCTV footage to have purchased food from the service station at approximately 1.10am and they left the area separately.
The offender then walked to Mr Tocin's to retrieve his White Utility. The offender drove the vehicle and parked on Palm Avenue near the Leeton Skate Park.
At this time there were several young men present at the nearby United Service Station with vehicles parked in the fuel bowser area. The deceased arrived on his push bike at 1.49am and sat on his bike and spoke with the males for a few minutes. The offender walked over the grassed median strip into the United Service station concourse at 1.51am.
The deceased and the offender were known to each other as casual acquaintances around the Leeton township and pub scene for the last 7 years.
The offender is seen on the CCTV footage to walk past the entrance to the shop and approached the deceased with an extended arm and hand as though gesturing for a handshake. The deceased did not take his hand and said, "I'm not your mate". The deceased and offender had a disagreement where the deceased indicated he did not want to talk the offender and for him to go away. He asked the offender in effect why he had walked over to them and whether he knew anyone else present. When he said he did not, the deceased indicated the entrance to the shop was behind him.
The accused entered the Service Station shop just before 1.53am and left the area walking towards his vehicle between 1.55am and 1.56am. The deceased rode his pushbike away from the Service Station at approximately 1.58am, turning left out of the service station and riding in a north westerly direction on Currajong Avenue for approximately 20 metres, before conducting a U-turn and travelling south easterly along Currajong Avenue and turning right at the roundabout travelling along Acacia Avenue past the Leeton Ex-Serviceman's club.
At about 2.09am on Sunday 25 March 2018, the deceased was riding his pushbike south along Currawang Avenue in Leeton when he was struck from behind by a Toyota Hilux dual cab utility with a UHF aerial attached to the front bulbar and a toolbox built into the tray. The point of impact was on the Western or incorrect side of the roadway. The utility was owned and driven by the offender.
This location is approximately 900m from the United Service Station where the deceased and offender had had the previous interaction.
An eye witness, Lee-Ann Martin at Currawang Avenue heard the sound of the impact. She looked out her window and then went to the door where she saw a vehicle approach with lights illuminating a bike and person partially on the roadway and gutter.
The witness observed the vehicle drive over the body of the deceased four times. The vehicle was seen to conduct a U-turn and come back and drive over the body of the deceased at low speed each time before finally driving away. After these events had taken place the witness spoke to a Triple-0 operator.
Graham Harrison from Currawang Avenue also observed the whole incident from his house, describing the vehicle doing three-point turns. He was accompanied by his wife Patricia who did not see it all as she was on the phone to Triple-0 as he was describing what took place. These witnesses described the deceased as thought to be breathing or taking breaths.
Police recovered CCTV footage of the incident from a residence at Currawang Avenue which recorded the offence. A number of distinctive features of the dual cab utility were seen from the CCTV footage. The offence took place over a period of more than a minute and a half.
It was agreed that the evidence from the CCTV footage revealed as follows: 1. At 1:09:48, Mr O'Grady's bicycle appears. 2. At 1:09:50, the offender is seen veering towards him at a fast pace and on the wrong side of the road. There can be no suggestion he approached the deceased carefully and thereby intending no very serious harm. 3. At 1:10:10, the offender returns from the opposite direction and runs over the body a second time, some 20 seconds later. 4. At 1:10:34, the offender returns from the original direction and runs over the body a third time, some 24 seconds later. 5. At 1:10:55, the offender returns from the opposite direction and runs over the body a fourth time, some 21 seconds later. 6. At 1:11:17, the offender returns from the original direction and runs over the body a fifth time, some 22 seconds later. 7. Each of the last four assaults occurred at a speed considerably slower than the original approach.
I accept the Crown submission that, given that each of the four intervals are nearly identical, the offender can be seen to have selected turning points close to the body whereupon he steadily engaged in the process of running over the deceased.
A few minutes after the offending, the offender arrived at a residence on Short Street, Leeton, the residence of a friend Ms Samantha Pickens. He informed her had had run over the deceased intentionally with the knowledge it was the deceased prior to hitting him and asked her to provide an alibi. The offender slept at the residence and washed his white utility in the backyard of the premises upon waking later that morning.
In summary, the information provided to Ms Pickens from the offender was as follows: 1. He and the deceased had a disagreement at the United Service Station, which was not pleasant. 2. There were people present when this disagreement occurred. 3. The offender hoped that there were no CCTV cameras in the service station and the ex-services club showing the street. 4. The offender volunteered running down the deceased and when asked if it was an accident he said, "No, I ran him down" and "Yes, I backed over him, I made sure I did the job properly". 5. The offender asked her to say she was with him at the time of the offence to provide an alibi. He later admitted to Police that he had made that request. 6. He asked to wash his car and did so at the back of the house. 7. He said he was angry because of what the deceased said to him in front of the younger boys, which she summarised by saying he lost face.
An investigation followed the offence. I shall describe the course of the investigation, so far as it is relevant to the objective seriousness of the offence.
At 2.14am, 5 police officers responded to a radio call and attended the incident site on Currawang Avenue, Leeton. An attempt to communicate with the deceased met with no response. Officers attempted to find the pulse of the deceased with the deceased observed to take some breaths after the police arrived.
Paramedics arrived at 2.19am and CPR was commenced. The deceased was seen to have pulseless electrical activity and in a second test he was in Asystole, i.e. without any electrical activity in the heart. Due to the deceased's fixed dilated pupils, the extent of his injuries and the fact that there had been no CPT for 8-10 minutes after he was injured, it was decided that resuscitation was to no avail and it was ceased at 2.30am.
The offender participated in a short voice recorded interview with police at his home stating that he drove his white utility vehicle from Mr Tocin's to Ms Picken's residence in the early hours of Sunday morning, 25 March 2018. He further stated that he had taken back roads as he did not want to be stopped by police as he was under the influence of alcohol and MDMA.
At approximately 6.20pm the white utility was towed to Griffith Police Station from "Narimba" in the custody of police. The offender voluntarily attended Leeton Police Station with police officers to make a witness statement.
At 9.30pm, police obtained a recorded statement from Ms Pickens in which she stated the offender told her "I've killed someone, I ran over them with my car". She asked "Who was it?" to which the offender replied "Stephen O'Grady". Ms Pickens asked "Are you sure he is dead?" and the offender replied "Yes, I backed over him, I made sure I did the job properly".
At approximately 10pm, following the conclusion of the offender's statement, Detective Senior Constable Mijok took the offender to the meal room and had a general conversation with him about his life. During this conversation the offender stated, "If I hit Stephen, I am dead meat. This town is like that".
At 10.18pm Detective Sergeant Julia Bradley informed the offender he was under arrest for the murder of the deceased. The offender was cautioned by Detective Bradley.
The offender consented to participating in an ERISP, which was conducted between 2.06am and 4.38am on 27 March 2018 by Detectives Mijok and Ferris. Initially, the interview commenced with a review of the offender's written statement taken earlier in the evening, and a recount by the offender of his movements on 24 and 25 March 2018. He indicated to Police that he had become aware of the deceased's death on Sunday morning. At approximately 3.34am, the police began to advise the offender of the information they had gathered during the investigation, such as a description of the vehicle involved in hitting the deceased, and the CCTV of the collision. The offender then made admissions to running over the deceased accidentally whilst trying to access Facebook on his mobile phone. The offender stated, "I was on my phone and I accidentally hit him."
He further stated, "I went back to finish the job, urn, because I was shitting myself. He explained what he meant by this by saying that he drove over the deceased as he lay on the roadway and kerb to prevent him identifying him and his vehicle. He said he did not intend to kill him and aimed to drive over his legs.
The offender did not admit to knowing the deceased was Stephen O'Grady or that he attempted to wash his white utility at Ms Pickens' residence. The offender did admit that he told Ms Pickens he had hit someone with his car and asked her for an alibi.
Subsequent forensic analysis of the vehicle confirmed a DNA match to the deceased at various swabs taken from the underside of the vehicle, including the front near side tyre, wheel arch and mudguard, the front offside tyre and wheel arch and rear offside tyre.
Dr Hannah Elstub Forensic Pathologist stated the cause of death as "Multiple injuries to head chest and abdomen".
Head injuries were found to consist of multiple abrasions and lacerations to the face, multiple mandibular fractures, subcutaneous haemorrhage and bleeding in various areas of the scalp, a faint linear left petrous temporal bone fracture, a comminute fracture of the superior right orbit, multiple areas of focal subarachnoid haemorrhage, some grey and white matter contusions and air within the cerebral arterial system seen on CT.
In relation to the chest, she confirmed that there were multiple bilateral rib fractures with associated subcutaneous emphysema and chest deformity, sternal fracture, bilateral haemopneumothoraces, almost complete transection of the aorta, widespread pulmonary contusions and a puncture to the upper lobe of the right lung. The liver was almost completely transected.
In summary, she records that there were multiple superficial injuries to the body. Although no obvious tyre imprints were seen there were two distinct patterned abrasions, one to the lateral right upper thigh and one to the right upper chest. There was obvious deformity and flattening of the chest with multiple rib and sternal fractures. There were no fractures found to the upper or lower limbs of the deceased.
The majority of injuries were to the chest and abdomen and suggestive of either a high force impact "or as is more likely in this case, a large compressive force to the thorax".
In GG v R [2018] NSWCCA 280, Schmidt J (with whom Fagan J agreed) made the following remarks regarding the assessment of the objective seriousness of the offence (at [60]): [60] As discussed in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27], the objective seriousness of an offence has to be assessed without reference to matters personal to the offender or a particular class of offenders and "wholly by reference to the nature of the offending". Objective seriousness must also be determined "without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case": at [31].
The state of mind in which a murder is committed is directly relevant to the assessment of the objective seriousness of the crime: Charbaji v R [2019] NSWCCA 28 ("Charbaji") at [180] (per Beazley P, Price and Wilson JJ); Apps v R [2006] NSWCCA 290 ("Apps") at [5] per Hunt J and at [49] per Simpson J.
Senior Counsel for the offender submitted that the Crown had not established beyond reasonable doubt that the offender intended to kill the deceased although he accepted that the plea of guilty brought an acceptance that the offender had either an intention to kill or inflict grievous bodily harm.
The submissions for the offender in that respect were, in summary: 1. The practical approach to the resolution of this issue was to evaluate both the circumstances in which the offence occurred and why the offender came to use the motor vehicle in the way he did. 2. In reliance upon R v Wilson [2009] NSWSC 365, it was submitted that the offender was provoked by an argument and there was a sudden eruption of anger resulting in a loss of composure. 3. Whilst it is not entirely apparent from the objective circumstances that the offender had actually lost his composure, when viewed in the light of what happened at the service station shortly beforehand and the offender's admissions shortly thereafter to Ms Pickens at her home and the police in his ERISP, the situation may be examined in an understandable way. 4. It was submitted that the offender had told Ms Pickens the deceased had, in effect, humiliated him in public in front of other young men. 5. That provides the context in which to consider intention - there was a public denigration of the offender which caused the reaction in the context of a history of social exclusion and having to deal with such behaviour from childhood and all through life. 6. It was accepted that a lethal weapon in the form of a vehicle was used, one which was most likely to cause death when used in the manner the offender did after initial impact. However, the initial impact did no more than signal an intention to cause grievous bodily harm. 7. The actions of the offender after the initial impact when viewed objectively or on the CCTV footage alone should point to an intention to kill the deceased. However the speed that the offender drove over the deceased was "very low" and might be more in keeping with an intention to cause grievous bodily harm. Further, the subsequent actions of the offender, after he first knocked the deceased from his bike arose from the first unplanned impulsive action and "could well relate to a further uncontrolled panic" on the part of the offender that he was in fear of the deceased being able to identify him.
In my view, the Crown has proved beyond reasonable doubt that the offender intended to kill the deceased. My reasons for that conclusion are as follows.
The offender maintained in reporting to Dr Furst that he only intended to knock the deceased off his bike and give him "a bit of a scare" and when he hit him he panicked, went into shock and self-preservation mode, fearing the trouble he would face.
The offender approached the deceased in a heavy vehicle, namely, a dual cab utility from behind when the deceased was on the opposite side of the road (thereby veering to the wrong side of the road to reach the deceased). Even though precise estimates of speed are not available, the pace of the vehicle was considerably quicker when it veered across the roadway to first hit the deceased than subsequent occasions. Overall, my observation is that the vehicle was driven on the occurrence of the deceased being first hit at a relatively fast pace. There is no deceleration of the vehicle on the CCTV image although it must have slowed off camera to return to the deceased. There was no evidence of braking prior to the first impact. There is nothing on the footage suggestive of the offender exercising any care in the manner he drove the vehicle towards the deceased in order to merely bump the deceased off his bike or scare him or cause him serious harm.
I do not accept the offender merely intended to knock the deceased off the bike and scare him. There was clearly an intention to cause serious harm in the first impact with the deceased.
Notwithstanding the offender's relatively calm demeanour at the service station, the Agreed Statement of Facts reveal that the deceased and the offender had a disagreement which was described - it "was not unpleasant". I have earlier described the exchange at [48] as follows: [48] The offender is seen on the CCTV footage to walk past the entrance to the shop and approached the deceased with an extended arm and hand as though gesturing for a handshake. The deceased did not take his hand and said "I'm not your mate". The deceased and offender had a disagreement where the deceased indicated he did not want to talk the offender and for him to go away. He asked the offender in effect why he had walked over to them and whether he knew anyone else present. When he said he did not, the deceased indicated the entrance to the shop was behind him.
This is the extent of the interaction and exchange between the offender and the deceased at the service station. I do not consider that statements as to a higher level of animosity displayed to the offender by the deceased as alleged in reports by the offender to mental health professionals may stand in substitution or addition for those agreed facts. I accept that the offender found those circumstances humiliating, particularly in front of other young men. When seen in the light of a background of some social deprivation or exclusion (exacerbating the impact of any feelings of humiliation), together with a moderate level of intoxication (both contributed to by his diagnosed attention deficit hyperactivity disorder ("ADHD")), at the time of the commission of the offence, I consider the offender's sense of the slight he received was more exacerbated and he acted then with a lack of composure and in an impulsive way after he left the service station, came upon the deceased on his bike and first struck him. It may be doubted that the offender had lost his control in the sense that his reason was temporarily suspended at this point, as observed by Dr Furst, but he was no doubt an angry and humiliated young man.
However, I do not consider the objective evidence supports a conclusion that the circumstances leading to the initial running over of the deceased may support a conclusion that the subsequent actions of the offender in running over the deceased on four separate occasions. Nor do I consider that his actions were predicated or may be adequately explained upon the basis that the offender experienced a "further uncontrolled panic" combined with a fear that the deceased may identify him such that it may be found the Crown has failed to prove beyond reasonable doubt the offender had an intention to kill. Making due allowance for the age of the offender, his state of intoxication (as I will find), his heightened humiliation and anger resulting from a history of social exclusion (to the extent I will later find and noting the absence of a causal connection between his mental disorder and the commission of the offence), the successive occasions in which the offender ran over the deceased after the first impact demonstrated an intention to kill. They were deliberate, and involved planning, albeit in a very short time frame.
The subsequent occasions in which the deceased was run over, vividly displayed on CCTV footage, shows the vehicle approaching the deceased driving at low speed and successionally driving over bumps on each occasion which was the deceased. The time intervals between each of the four successive occurrences of the offender driving over the deceased in that manner were approximately equal. I accept the submission of the Crown that the actions of the offender demonstrate that the offender executed a turn after slowing down at approximately the same distance from the deceased on each occasion. The actions were purposeful, controlled and sustained and certainly not demonstrative of "uncontrolled panic" after the first impact. As mentioned, the movement of the vehicle demonstrated deliberateness and the intention to kill, not an intention to cause grievous bodily harm.
I do not consider that the offender's statements that he "went back to finish the job, um, because I was shitting myself", he wished to "prevent" the deceased from identifying him and his vehicle and "I backed over him, I made sure I did the job properly" is, in the light of these objective features, consistent with an uncontrolled panic, but rather supports a conclusion that there was an intention to kill; as the Crown put it, "death ensures silence".
In any event, it should be noted a finding that the offender did not intend to kill but rather to inflict grievous bodily harm will often, but not always, indicate a lesser objective seriousness. The absence of intention to kill does not necessarily mean that the murder is less serious: Charbaji at [181]. There will be circumstances where, in a particular case, an intention to inflict grievous bodily harm could reflect similar criminality to cases involving an intention to kill: R v Nelson (Unreported, New South Wales Court of Criminal Appeal, 25 June 1996) (per McInerney J, with whom Gleeson CJ and Studdert J agreed); R v Hillsley (2006) 164 A Crim R 252; [2006] NSWCCA 312 at [17] (per Hodgson JA, Adams and Johnson JJ).
Indeed, the offender conceded this may be one of the cases where the particular intention formed is not of great moment in making the determination of objective seriousness because the facts themselves speak of the gravity of criminality involved.
Further, the offender used a high level of violence to cause fatal injuries to the deceased. As the offender properly conceded, the circumstances here represent a case of violence of a high order in knocking the offender off his bicycle and then proceeding to drive over him on four separate occasions.
The agreed facts do not state there was an absence of planning or premeditation.
Given the circumstances of the matter, I do not, however, consider it may be found that there was premeditation of the first impact upon the deceased. There was an absence of planning before the first occasion of impact with the deceased.
The offender and the deceased were acquaintances but had had minimal previous contact. Whilst there was no obvious reaction by the offender at the service station and I accept, as mentioned, the submission made on behalf of the offender that the offender appears to have had a sudden loss of control following a chance encounter at the service station because he felt humiliated.
I do consider, however, there was planning within a very short timeframe as to the four subsequent occasions of the offender driving over the deceased.
The Crown contended that the offence lay above the middle range of seriousness. The offender submitted the offence is an objectively serious one for the crime of murder and "it must lie in the upper level of the mid-range".
In all the circumstances, I consider the murder to be objectively very serious. Whilst it is unnecessary to place the objective serious of the offence in a range: McDowall v R [2019] NSWCCA 29 at [35]-[37] (per Adamson J, with Hoeben CJ at CL and Schmidt J agreeing), I consider that the offence lies above the middle range of seriousness.
The dual cab utility owned by the offender was used as a weapon. As the use of a weapon is not an element of the offence, this factor excites consideration of whether the use of the vehicle was an aggravating factor for the purposes of s 21A(2)(c) of the Sentencing Act. I accept the submission of senior counsel for the offender that the use of the vehicle as a weapon should have minimal significance as an aggravating factor because the nature of the weapon and the circumstances of its use play an important part in finding there was an intention to kill and indicate the significant objective gravity of the offending.
I do not consider the offender's prior record aggravates the offence for the purposes of s 21A(2)(d). As I will find, I do not accept submissions made by the Crown as to the protection of the community as I do not consider the circumstances of this matter including the offender's record gives rise to considerations such as those found in Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14 ("Veen No 2"). It is sufficient to note at this juncture that the offender's prior record disentitles him to some leniency because it includes driving offences, one of which, although less serious, had similar features to this matter.
The offender has a prior criminal record which contains no offences of violence. The offence in question was committed in the Northern Territory in 2013 where the offender entered a roundabout and collided with a pushbike rider. The offender was convicted for not stop or assist after crash and drive without care and fined $200 and $400 respectively. The offences in the NT took place when he was just over 21 in 2013.
The offender has two NSW driving offences, a prior offence of drive with low range PCA and a drive whilst disqualified, which occurred in 2014. For both of these matters he was fined and disqualified from driving.
Section 21A(2)(m) comes to attention as a potential aggravating factor because there were multiple acts of the offender driving over the deceased. Again, the degree of aggravation must be minimal because of the significance of that factor in the assessment of the objective gravity of the offending.
I accept the submission of the offender that no aggravation arises from consideration of the provisions of s 21A(2)(g). The injuries sustained by the deceased were consistent with the offence of the kind committed. Whilst the victim impact statements demonstrate substantial harm to the family of the deceased, they may not properly be used as evidence to aggravate the offence: R v JK [2018] NSWSC 250 at [19] (per Hamill J).
I have dealt with the question of violence.
Senior Counsel made submissions as to mitigation having regard to the provisions of s 21A of the Sentencing Act. I will note my reasons with respect to those matters below. I will deal with the question of intoxication, momentarily.
The offender also referred to the provisions of s 21A(3)(e) and (f) but properly accepted that the offender's relevant criminal record precluded a conclusion that he was a person of good character.
I will find below that the offender pleaded guilty at the first available opportunity.
As to s 21A(g) and (h), I will find in this judgment that the offender's prospects for rehabilitation are reasonably good and that he is unlikely to reoffend.
I accept the offender's submissions as to remorse and acceptance of responsibility as discussed below.
I have had regard to the age of the offender and will do so further below in addressing subjective features.
I turn then to the question of intoxication, which has a relationship with the issues raised by the parties as to the moral culpability of the offender. Senior Counsel for the offender accepted that self-induced intoxication may not be taken into account as a mitigating factor. That submission is correct having regard to s 21A(5AA) of the Sentencing Act: see R v Loveridge (2014) 243 A Crim R 31; [2014] NSWCCA 120 at [220] (per Bathurst CJ, Johnson and R A Hulme JJ) and Tepania v R [2018] NSWCCA 247 ("Tepania") at [124] and [127] (per Johnson J, with whom Payne JA and Simpson AJA agreed).
It was nonetheless submitted that intoxication may explain why the offender "lost self-control" and committed the offence. It was contended that where the use of drugs or alcohol commence at a young age or as a result of a psychiatric condition or medical problem it may provide a degree of mitigation as it reduces an offender's moral culpability to some extent: see R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111 at [273]-[274] (per Wood CJ at CL, with whom Simpson J agreed at [342]), R v Rhodes [2017] NSWSC 694 at [97] (per Campbell J), Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 ("Bugmy") at 595-596 (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), Tepania at [116] and Waters v Regina [2007] NSWCCA 219 at [38].
The offender relied upon his self-reporting to Dr Furst and Ms Anita Duffy, psychologist, who described a great number of drinks consumed, and added that methylamphetamine and MDMA, in addition to the history he gave to police as set out in the Agreed Statement of Facts: see [36]-[39] and [43] above.
On the basis of the offender's report, Dr Furst opined that the offender was intoxicated at the time of the offence "at least moderately if not severely affected by alcohol, especially in combination with MDMA and a quantity of methylamphetamine (0.15g), drugs that both have stimulant intoxicating properties on their own".
The Crown submitted that the best evidence available to the Court came from the observations of a police officer and the CCTV footage shot before the offender drove towards the deceased. The police officer described the offender as being moderately affected by alcohol at about 1.05am on 25 March.
There is a discrepancy between the Agreed Statement of Facts and the report given by the offender to Dr Furst and Ms Duffy as to alcohol and drug use in the period between the award of the cricket medallion and the commission of the offence as to the amount of alcohol consumed and the taking of MDMA and methylamphetamine. The evidence before the Court is that contained within the Agreed Statement of Facts.
Nonetheless, on the evidence before the Court, I consider the intoxication of the offender at or about the time of the offence was that he was at least moderately affected by alcohol and drugs. That was the assessment of the police officer who actually observed him on the evening which observation accords with the CCTV footage which shows the offender moving with fluency and in a coordinated fashion. The offender's revised estimate of intoxication was 6-7 out of 10.
Dr Furst's conclusion may be accepted that the consumption of the same contributed to the offender's excessive response in anger in experiencing a perceived slight and the exchange of words which occurred and the offender's lack of composure when first encountering the deceased on his bike, given the evidence available via the observations of a police officer and CCTV footage.
I turn then to the offender's antecedents. In addition to the reports of Dr Furst and Ms Duffy and the affidavit of the offender's father, I have had regard to the following character references in support of the offender: 1. Affidavit of Nakiya Jean Marie Ingram dated 20 September 2019; 2. Reference of Michael Kruger-Davis of 27 May 2019; 3. Reference of Arun Tiwari 15 March 2019; 4. Reference of Andrew Beal 19 August 2019; 5. Reference of Chiree Roberts of 23 April 2019; 6. Reference of Peter McPhee of 6 May 2019; 7. Reference of Charles Ernest Prince (undated); 8. Reference of Julian von Bibra of 26 March 2019; and 9. Reference of Julian Kelly of 1 October 2019.
I make particular mention of the reference given by Mrs Roberts.
As mentioned, the offender was 25 years of age at the time of the offence. He is now 27 years of age. He has established a strong work ethic during his life.
The offender is in good physical health. He played sport in the community including AFL and cricket and completed certificates in personal training. He has been training in the gym in custody.
The offender was adopted at the age of 3 months from Sri Lanka and his appearance is consistent with that ethnic origin. He grew up in a loving and supportive household where both parents worked and were financially secure. He has one sibling.
I will below summarise the offender's father's evidence of his learning difficulties, bullying and exclusion at various schools and the offender's inability to make friendships.
I will refer to Dr Furst and Ms Duffy's reports as to the mental health, personality and cognitive function of the offender together with substance abuse.
As mentioned, he has been in various forms of employment since he left school. He worked on his parent's property and in the local shearing sheds for about 5 years. He went travelling doing seasonal work and also went to Tasmania working for a shearing contractor and on a wheat property. He set up a business supplying firewood in the local area.
The new sentencing scheme, introduced by the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), which amended the Sentencing Act, applies only to indictable offences committed after 30 April 2018 and therefore does not apply to this case. Prior to that Act, the utilitarian value of a plea was assessed in the range of 10-25% discount and the primary consideration was the timing of the plea having regard to the circumstances of the case and the matter for determination: R v Thompson, R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152] (per Spigelman CJ) and R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 at [32] (per Howie J, with whom McLennan CJ at CL and Simpson J agreed).
The offender pleaded guilty to murder in the Local Court on 13 March 2019. There was no dispute by the Crown that the plea was entered at the earliest possible time or that a discount of 25% should be applied. In particular, there was no submission that the gravity of the offence was such that the discount otherwise available based on the utilitarian value of the plea should be negated or reduced. In my view, there should be a 25% discount for the utilitarian value of the plea.
I have earlier referred to the offender's criminal record which disentitles him to some leniency.
It was submitted by the offender that he had shown contrition and remorse and acceptance of responsibility for his actions and the harm he has caused and a desire to atone for his offending.
The offender did not give sworn evidence of his contrition and remorse or acceptance of responsibility.
The evidence of the same comes from a number of sources: 1. The reports of Dr Furst of 14 December 2018 and 9 July 2019; 2. The report of Ms Duffy of 3 June 2019; 3. A letter written to the family from custody of 5 April 2018; 4. A letter to the Court (undated); 5. The affidavit of the offender's father, Mr Mark Rowe; and 6. Character references by Mr Peter McPhee and Mr Arun Tiwaci.
The Crown cast doubt about the expressions of remorse when conveyed in reports or to other persons or expressed in written communications of the kind I have described because the offender would have no doubt been advised of the significance of contrition and remorse in sentencing proceedings. I do not accept that submission having regard to the content and timing (in the case of the letter to the family) of his expressions of remorse.
However, the Crown also contended that there was an absence of expression of sorrow to the deceased for the taking of his life as opposed to strident expressions of remorse to the living such as the families.
There is a paucity of such expressions of remorse in the offender's many written statements reflecting his remorse or contrition although he does state to the family that he wishes he could bring back their son, apologies to the family and acknowledgement that his acts were cowardly, callous and malicious.
In my view, the offender has shown that he has accepted responsibility for his actions. He has shown, to a significant extent, remorse and contrition for his actions and in particular the injury and loss caused by his actions. These are mitigating factors in this matter.
Senior counsel for the offender made a submission that the social exclusion or disadvantage suffered by the offender bore upon and reduced his moral culpability. That factor was relied upon as a reason why life imprisonment should not be imposed and in mitigation of the objective seriousness of the offence.
Reliance was also placed upon a mental disorder of ADHD linked to the development of a substance use disorder as also bearing upon mitigation and the weight attached to general and personal deterrence.
The offender also placed reliance upon his age at the time of the offence. Given the offender's social isolation and childhood ADHD, his level of intellectual functioning being slightly compromised and his chronic depression, his emotional maturity could well have been, it was submitted, less developed than others of his age. So much was acknowledged by the High Court in Bugmy when referring to people with deprived backgrounds and cited by Rothman J in the case of Kentwell v R (No 2) [2015] NSWCCA 96 ("Kentwell No 2") at [93].
There are cases where a special allowance will have to be made where there is evidence of an offender's emotional immaturity (see R v SDM (2001) 51 NSWLR 530; [2001] NSWCCA 158 at [17], R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23 at [14] and R v AO (2003) 138 A Crim R 189; [2003] NSWCCA 43 at [62]). Where that immaturity is a significant contributing factor to an offence, then it may be fairly said that the criminality involved is less that it would be in the case of an adult of more mature years (see R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25] and Braithwaite v R [2005] NSWCCA 451 at [24]).
These factors received cumulative expression in the following submission made on behalf of the offender: 132. It is submitted that there is sufficient evidence in this case to establish that the social exclusion of the offender from childhood is a factor which may be applied to mitigate his sentence. For this offender his own struggle with social exclusion in combination with childhood ADHD, the development of his personality as an excluded person trying to fit in which led to his substance abuse disorder, is causally connected to the commission of this offence. This background explains in the context of the events of that day his attempts to celebrate the cricket grand final and his drinking to try to be included socially and why he approached the deceased to shake his hand. The humiliation suffered by the offender when he was once again socially rebuffed by the offender in front of others was keenly felt.
The Crown submitted: 1. The offender's contention ignores many instances of social inclusion borne of his acceptance by the Leeton community as a sportsman, acceptance by his foster parents from early childhood, acceptance by women with whom he has had intimate relationships, acceptance by employers for whom he has worked and acceptance by school staff (one of whom provided a reference). 2. The offender enjoyed life as a sportsman in the Leeton community (he had won a medallion in cricket on the day of the offence). The parents contributed to bringing up of a hardworking and cheerful member to the community. The offender had intimate relations with women and contributed to work (that is, he had a good work ethic). He had good references from employers. 3. The Court should be careful of accepting expert reports "recruited in the defence case", particularly when there is insufficient evidence to show the offender suffered the level of social deprivation relied upon by the psychiatrist and the psychologist. 4. Relying on that submission and its submission as to "intoxication", the Crown submitted that the offender's submissions understate the moral culpability of the offender. It is higher. 5. Alternatively, the Court should accept the Crown's submission as to the need for a sentence to provide for the "Protection of the Community".
Senior counsel firstly relied upon a line of authority in support of the contention ranging, in the case of submissions on moral culpability, from Bugmy at [37] (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and Munda at [57] (per French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) to Kentwell No 2 at [83]-[84] (per Rothman J, with whom Bathurst CJ and McCallum J agreed) and R v Booth [2014] NSWCCA 156 at [20]-[27] (per Hamill J, with whom Hoeben CJ at CL and Beech-Jones J agreed).
Secondly, it was contended that the mental state of the offender was of considerable relevance to the assessment of the degree of moral culpability involved in a defence as well as the relevance of that issue to deterrence. Reference was made to Tepania at [112] per Johnson J (with whom Payne JA and Simpson AJA agreed).
There was, properly, no demur from those statements of principle by the Crown.
As to the first of those principles, reference may be made additionally to the judgment of White JA in Perkins [2018] NSWCCA 62 ("Perkins") (with whom Fullerton J relevantly agreed) and the consideration of that judgment in R v Irwin [2019] NSWCCA 133. The following principles may be distilled from those authorities relevant to this judgment: 1. The focus should be upon whether the background of the offender lessens moral culpability. It does not follow that a background of social deprivation will always be a factor in mitigation of sentence (Perkins at [73]). In particular, it may do so if there was a causal link between the background of social deprivation and the offences. 2. Finding connection between the background of social deprivation or profound social deprivation and the offending such that the background or other relevant fact may explain the offender's recourse to violence is more likely to reduce the offender's moral culpability (Perkins at [80]). However, that was not the only circumstance in which the background could be relevant and that mitigating factor may also be established in some circumstances where there is an absence of causation (Perkins at [77]). 3. If the offender seeks to rely upon his background of deprivation in mitigation of sentence, he needs to point to material tending to establish the background (see Perkins at [77] and Bugmy at (41)). 4. The weight to be afforded to the offence of social deprivation in an offender's youth and background is in each case a matter for individual assessment (Bugmy at (58) per Gageler J). 5. Reference may be made to the following observations of White JA in Perkins (at [82]): [82] I agree with Hoeben CJ at CL that the applicant's exposure to the domestic violence committed on his mother and possibly on him [1] has been shown not to have been causally connected to his offending. The applicant reported to Dr Gilligan that he adjusted to most aspects of his childhood development without problems. He got along well with his fellow students. He was never involved in fights. He did not report any expulsions or suspensions. He was never diagnosed with a learning disorder or attention deficit disorder or other conduct problems. He was a good student. He was sociable and had a lot of friends and was never involved in substance abuse, criminal activity or juvenile delinquency.
The expert reports of Dr Furst and Ms Duffy describe the offender's reporting on these questions, the records they accessed and their opinions as to any connection between social deprivation and mental disorders and the offence.
Dr Furst had access to wide ranging materials concerning the offence, criminal and custodial histories and background, subjective information including letters from the offender's parents and various medical reports including Dr Anna Orill concerning special communication and behavioural patterns, Dr Brennan, a child and adolescent psychiatrist who treated the offender when he was 12, assessment documents from the Dalwood Assessment Centre in 2002, school counsellor reports in 2001 and a clinical psychology report in 2008 concerning, inter alia, ADHD.
In summary, Dr Furst opined in his two reports: 1. The offender was born in September 1992 in Sri Lanka and given up for adoption when he was 3 months of age. 2. He had a history of learning difficulties, communication problems and emotional difficulties throughout his childhood, with his intelligence being in the lower-average range but well above the intellectual disability range. 3. He attended various religious schools until year 11. The offender was sent to boarding school in Victoria in year 10 but was expelled for stealing and dishonesty. He was enrolled in an Anglican College in Wagga Wagga for the remainder of year 10 and St Francis Catholic College in year 11 but left before year 12. 4. He reported being the subject of occasional racial taunts, bullying and teasing due to his race. He lacked self-confidence and had "generally low self-esteem" which issues were explored in counselling in his "childhood/teens". 5. He had loving and supportive parents who went to great lengths to seek appropriate assessments and assistance for the offender. He worked on their farm and other short work stints between 18 and 23 years of age. 6. The offender suffered no major mental illness but did not have close friends and was somewhat a social isolate who had persistent issue with poor social standing and lied in a misguided attempt to make himself more popular. 7. The offender reported that he saw himself as an "underdog" or "black sheep" and wanted to be "included" when he approached the deceased on the night of the murder. The response he received made him feel excluded. 8. The offender has a problematic drinking history. He played ALF and would become involved in drinking after football events from 15 years of age. He used illicit drugs between 21 and 25 years of age. 9. In his first report, in a review of relevant documents, Dr Furst opined: A review [of] other documents was consistent with Mr Rowe having impaired social skills, ADHD, and a lack of friends, at least partly due to his tendency to tell lies in social and other settings, such as when playing on sporting teams. The documents also suggest his two adoptive parents have been caring and have gone to great lengths to see appropriate assessments and assistance for Mr Rowe, making the source of his childhood mental and behavioural problems being more temperamental, as opposed to the product of childhood trauma, abuse or neglect. 1. In his first report, in answering whether the offender was substantially impaired by abnormality of mind at the time of the commission of the offence, Dr Furst opined: … I am of the opinion that Mr Rowe was aware of his alleged actions, understood that his alleged actions were wrong, and did not lose control of himself, if he did 'lose control', as a consequence of an underlying mental disorder. In my opinion, it is likely that Mr Rowe had negative feelings and/or anger towards the victim following perceptions he had been slighted by the victim at the United Service Station. In my opinion, it is also more likely than not that the effects of his intoxication with alcohol, MDMA and methamphetamines contributed to his apparent excessive response to being slighted by the victim shortly before the alleged offence. 1. The offender was diagnosed with ADHD and substance use disorder. 2. ADHD is a neurobehavioral development disorder characterised by a co-existence of attention problems and hyperactivity. This diagnosis corresponded to childhood behavioural disturbance including social isolation and communication. There was a subsequent onset of substance use disorder (children with ADHD have approximately 3 times the risk of developing such a disorder than peers who do not have ADHD). 3. Symptoms of impulsivity, poor judgement, social deficits and boredom, which are common to individuals with ADHD, are also correlated with a higher risk of developing addictive disorders. Functional MRI results are suggestive of lower rates of brain activity in the frontal region of individuals with ADHD, a phenomenon linked with disinhibition and impaired judgement and impulsivity. This apparent strong association/causal link between childhood ADHD and subsequent alcohol/drug abuse/dependence helped to explain the offender's propensity to drink excessively and use drugs excessively, including on the night of the offence. 4. Dr Furst opined in his second report under the heading "Opinion regarding issues relevant on sentence": Mr Rowe has a history of childhood emotional and behavioural disturbance that meets criteria for the diagnosis of Attention Deficit Hyperactivity Disorder and a level of intellectual function that is below average, but not in the intellectually disabled range. His social isolation and communication difficulties have been noted throughout his childhood, however, the opinion of Dr John Brennan, and other clinicians who assessed him around that time, was insufficient to warrant the diagnosis of an autistic spectrum disorder His pattern of lying, often for no obvious reason, was more suggestive of temperamental issues and/or his personality style than a mental illness or delusional thinking. 1. Dr Furst further opined: In my opinion, it is likely that Mr Rowe had negative feelings and/or anger towards the victim following perceptions he had been slighted by the victim at the United Service Station. In my opinion, it is also more likely than not that the effects of his intoxication with alcohol, MDMA and methamphetamines contributed to his apparent excessive response to being slighted by the victim shortly before the alleged offence, leading to his apparent 'brain-snap' and what he described as 'losing it' when he chose to run over the victim multiple times A fear of being recognised by the victim he had impulsively knocked off his pushbike and a fear of being caught were probably relevant motivating factors. 1. Dr Furst stated: Those observations and observed clinical features point towards a reasonably strong association/causal link between childhood ADHD and subsequent alcohol/drug abuse/dependence in adolescence and adult years, i.e. children who have been diagnosed with ADHD, as was the case for Mr Rowe, are at much higher risk of developing dependence on alcohol and other drugs in their adolescence and adult years. In my opinion, this apparent strong association/causal link between childhood ADHD and subsequent alcohol/drug abuse/dependence helps to explain Mr Rowe's propensity to drink excessively and use drugs excessively, including on the night in question before the Court, mitigating to some degree against the seriousness of the offence in question before the Court. 1. Dr Furst further opined under a heading "Prospects of Rehabilitation": Mr Rowe had a history of learning difficulties and ADHD. He also struggled to 'fit in' with his peers in Leeton and likely had temperamental problems, personality deficits, and identity issues that are common to people who have been adopted shortly after birth and removed from the culture of origin, even though he received more than adequate parenting by his adoptive parents. He resorted to maladaptive means of 'fitting in' by his peers, such as lying for no obvious reason in order to present himself in a more favourable light. He also drank alcohol in increasing amounts after sporting events and other social occasions and when 'stressed'. There was a pattern of escalating binge-drinking and substance abuse with stimulant drugs including methylamphetamine, cocaine and MDMA in the 4 years or so prior to his arrest, which is likely to be causally associated with his ADHD, his social isolation and his emotional deficits.
Noting Ms Duffy received Dr Furst's first report before making her report, Ms Duffy opined after a 2.5 hour interview with the offender (after receipt of relevant materials) as follows: 1. As to the offender's background, she added to Dr Furst's report as follows: 1. The offender grew up on a family farm at Narradena and he was informed of his birth mother's name and age at giving birth. The offender's adoption was a source of emotional pain for him. He has a sister who is 22 years of age although she was brought up in Sydney after contracting cerebral palsy. 2. The offender was excluded from his peers due to his racial background and had no close bonds. 3. He was educated in local and boarding schools. He was teased at school and was unhappy. He stole and lied to make friends. He reported that he had confided in a school counsellor that he felt rejected, neglected and alienated. He tried to excel at sport. 4. He met a girl on an overseas trip to Europe and lived with her in Melbourne (he had an earlier girlfriend he was banned from seeing and had other earlier romantic relationships over time). After they separated, he moved to the Northern Territory where the earlier mentioned offences occurred. He studied personal training and after returning home started a small business selling firewood. 1. The offender had been assessed as early as 2008 as being on the low-average range of intelligence and having ADHD. 2. Apart from the drug and alcohol patterns described by Dr Furst, he tried "ice" at 17 and had periods of heavy use thereafter. 3. The offender had gambling problems from age 16. 4. Upon testing under the Milon Clinical Multiaxial Inventory - III, the offender was assessed as being an individual who is socially isolated, eccentric, disorganised with poor communication skills and mistrust. Underlining his behaviour are issues of low self-esteem and a depressive outlook (he showed, on clinical scales, elevations for Major Depression and exhibited symptoms consistent with anxiety or depression). 5. In her conclusions, Ms Duffy stated: He gave a history of abandonment and rejection by his birth mother, which has continued to shape his self-concept and behaviours. Although he was brought up in a loving family environment with his adoptive parents he nevertheless continued to feel alienated and excluded from his peers in the town. He felt neither accepted by the Indigenous population nor the Anglo Australians due to his colour and racial background. His history of behavioural problems at school, which were attributed to ADHD in part were related to his desire to fit in with the others, by stealing and lying, or in response to feelings of rejection. 1. She also opined: Alcohol, drugs and gambling have all been activities that temporarily alleviated his mood and provided an escape, or a "band aid" in his attempts to deal with problems. 1. The offender's reaction at the time of the offence may have been exacerbated by intoxication by alcohol and drugs. His reaction to the events involving the deceased was to ruminate over another example of rejection and then "snap" to "scare him" and knock him off his bike.
Before the Court was also an uncontested affidavit of the offender's father, Mark Rowe, sworn 20 September 2019. In summary, Mark Rowe stated: 1. As a young child and throughout his school years, the offender had learning difficulties, was anxious and generally struggled at school. During high school, he had difficulties doing well, especially with English and Maths; "he lacked the ability to concentrate for long periods, and was generally disruptive". 2. The offender was "bullied terribly" in Kindergarten at Yanco Public School, near Leeton, in 1998. In 2005, he commenced high school at St Francis College Leeton, where he was also bullied. The offender was "attention seeking and wanted to be liked but wasn't liked by most other students all through his school years". 3. The offender was keen to leave school after Year 9, but his parents felt he was too immature at that time. 4. The offender commenced year 10 at Assumption College at Kilmore in Victoria in 2008. The offender's parents thought the school would be a good fit for the offender, however the offender struggled with living away from home and was unable to settle down. 5. Towards the end of the second semester at Assumption College, the offender was found to be stealing from other boarders and was expelled. 6. The offender was then enrolled at the Riverina Anglican College in Wagga Wagga, where he completed Year 10 as a day student. During that period, the offender stayed with his father, who was able to work in Wagga Wagga, in a rental unit during the week and travelled home on weekends. 7. Even though the offender completed the year at Riverina Anglican College, he was not very happy there and he wanted to enrol back at St. Francis College Leeton for 2009, which he did. Once again he struggled to settle in. He was suspended for misbehaviour for short periods and was also at loggerheads with a young hospitality teacher at the school, mainly because he had completed a hospitality course at Assumption College and he did not consider that he needed to do it again. He completed Year 11 and then left school. 8. After leaving school, the offender had various labouring jobs. He also worked as a roustabout in shearing sheds, during which he completed a Certificate III in Wool Handling course. He went to Western Australia and Darwin for an adventure and was seeking work on a casual basis. He came home for a short while and then travelled to northern NSW and southern Queensland. While in Queensland he obtained a dog which he called Socks. The offender and Socks then came back and lived with the offender's parents in mid-2014. 9. During late 2014 and early 2015 the offender completed a Certificate III and IV course in Fitness Training in Canberra. The offender's father accidently ran over and killed Socks in January 2015. The death of Socks affected the offender as he and Socks meant a lot to each other. After completing the fitness course the offender commenced his own small business of selling firewood to people in Leeton, Yanco and Narrandera and seemed to be going along reasonably well. At that time, the offender was still living at home. 10. Mark Rowe further stated: Jonwa has always struggled with friendships. He is good at meeting people in social situations however he has always struggled to build and maintain long term friendships, particularly with people of a similar age to him. He would often try to impress people by making exaggerations or telling lies to try and ingratiate himself but would eventually get caught out which usually resulted in people turning away from him and he would be humiliated. Susie and I had discussed these issues with Jonwa at different times over the years and tried to assist him.
The Crown is correct to submit that the offender had the benefit of loving and supportive parents who adequately sought to meet his needs, access to good schools and other advantages such as work opportunities and romantic relationships. He seemed to be respected in sport.
However, on the evidence before the Court, that analysis is, to some extent, superficial when regard is had to the opinions of Dr Furst and Ms Duffy and the historical circumstances described by the offender's father. The offender exhibited over time the temperamental patterns, personality deficits and identity issues associated with persons removed from his culture of origin. He also suffered bullying at school most likely connected to his different appearance and also because of the maladaptive means he chose to fit in, including lying.
His childhood emotional and behavioural disturbance met the criteria for ADHD and he had a level of intellectual function below average. He was diagnosed early in time as having ADHD; a diagnosis confirmed by Dr Furst and Ms Duffy.
The offender was also diagnosed with a substance use disorder. There is a strong association between childhood ADHD and subsequent alcohol/drug abuse or dependency. I find that there was a causal connection between the offender's substance abuse and his mental disorder of ADHD, particularly given the pattern of escalating binge drinking and substance abuse in the four years prior to his arrest.
However, although the offender's substance abuse may have been causally connected with the offender's ADHD and his consequential social isolation and emotional deficits including poor learning and communication skills, neither expert opined there was a causal connection between the offender's diagnosis of ADHD and a substance use disorder and the commission of the offence. Nor was there a causal connection with respect to the offender's depressive outlook, as Ms Duffy described it, or his "elevations" for depression and anxiety found under Ms Duffy's tests. I do not find the existence of such a causal connection.
In my view, the exaggerated or out of proportion response by the offender to the "slight" by the deceased and any argument between the two, was contributed to by the social exclusion or deprivation suffered by the defendant to which I have referred and his level of intoxication. There was no expert opinion that the ADHD suffered by the offender led to impulsivity and, in particular, impulsivity on the evening of the offence, although it did contribute to his persistent abuse of alcohol and drugs and the offender was at least moderately intoxicated on the evening of the offence.
These factors may well have contributed to the loss of composure of the offender and his negative feelings or anger towards the deceased and potentially his initial driving at the deceased upon encountering him on the road. They do not adequately explain or reduce the moral culpability of the offender for his subsequent actions of the running over of the deceased on four separate occasions.
It follows that the weight which may be afforded these factors in mitigation is reduced but not eliminated. In combination, the offender's social deprivation, mental disorder and level of intoxication (and taking into account lower-average range of intelligence) may moderately reduce his moral culpability.
The Crown submitted: 1. The defence cannot present the offender as "determined" by his mental health purely for the purpose of mitigation. The community will always be at risk from any person with such a predisposition, liable to destructive overreaction at the slightest cause. Treatment and its possible success is necessarily predicated on faith and optimism. 2. This offence was an act greater in free will than determinism. 3. It follows from the last point that the Crown argues there is a greater need to reflect both personal and public deterrence in the sentence.
The degree of over reaction of the offender because of the lack of any form of provocation means that, if the conduct was determined by mental health factors, the community is at risk no matter how long the offender spends in custody. Protection is required because of the "destructive personality" triggered by the "slightest" cause with no prior animosity. A long view to the future is required, it was submitted by the Crown, when there is an absence of genuine remorse.
The offender submitted that the assessment of whether a finding of future dangerousness is not required particularly where the offender is so young and there are reasonable prospects of further maturation. There is a low risk of reoffending and the penalty should not be imposed beyond that which is proportionate to the crime.
The Crown relied upon Veen No 2 at 473 for that approach (reference may also be made to Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46 at [12] and [20]; Beldon v R [2012] NSWCCA 194 at [53] and R v SLD (2003) 58 NSWLR 589; [2003] NSWCCA 310 at [40]).
I do not accept the Crown's submissions in this respect. In particular, my sentence does not attempt to incorporate a Veen No 2 element concerning the danger the offender may present to the community in the future, many years from now. My reasons for that conclusion are as follows: 1. Upon the findings I have made as to the circumstances of the Northern Territory offence, the circumstances of that offending are sufficiently dissimilar to the circumstances of the present offending. 2. By contrast to R v Lawrence [2005] NSWCCA 91 at [24] (per Spigelman CJ), the offender was not diagnosed with an antisocial personality disorder. The offender suffered ADHD which was not causally connected to the commission of the offence. 3. This conclusion is also supported by factors which also lead to a conclusion that the offender has, as will be discussed, reasonably good long term prospects of rehabilitation. 4. The age of the offender permits further maturation over the years, which makes a finding of future dangerousness problematic.
Based on the evidence before the Court, however, I make a finding that the likelihood of the offender re-offending is relatively low.
The offender has not previously been in adult custody. There is one matter recorded on his custodial history since his arrest on 26 March 2018. That is an offence of possessing the drug Buprenorphine (an opiate), which is explained in the second report of Dr Furst at page 2 where the offender stated that "I was taking the rap for the boys". I agree with the submission of the offender that this would be consistent with his history of social exclusion in trying to gain acceptance by his peers. His drug screens have been clear He had been employed whilst at Junee as the VL suite sweeper. He was moved in July from Junee to Lithgow Correctional Centre.
It was submitted that a custodial sentence may weigh more heavily upon him as a youthful offender.
When seen by Dr Furst again at MRRC in May 2019 the offender had been continually housed at Junee Correctional Centre. He reported to him then that had engaged in programs including the Positive Lifestyles Program, had been training in the gym to stay fit and was socialising with other inmates. The Positive Lifestyles Program, is a program started by the Salvation Army in the early 1990's and run also outside the corrections system by many Church groups.
Whilst the offender will be in custody for a long period of time, and future events are difficult to predict, I have reached the conclusion that the offender's long term prospects of rehabilitation are reasonably good. There are a number of factors supporting that conclusion.
First, the offender has pleaded guilty. His admissions, his acceptance of responsibility for the offence and his expressions of remorse represent the initial steps in the process of rehabilitation and indicate the possibility of success.
Secondly, he has continuing family support. His father swore an affidavit for these proceedings. He has had regular phone contact with his mother and father and regular visits in custody from his mother and father although this has reduced following his relocation to Lithgow Correctional Centre. Visits have also been made by other family friends.
Thirdly, he has had a positive history of work since leaving school.
Fourthly, in custody he has committed one offence in circumstances but otherwise has not been subjected to disciplinary measures. He has worked in custody as a sweeper in Junee.
Fifthly, his record is a relatively minor one without previous episodes of violence.
Nonetheless, the offender's rehabilitation will depend upon his positive approach to the courses recommended by Ms Duffy in her report. I agree that his participation in the Positive Life Styles program is evidence of a pro-active approach.
Lastly, Dr Furst in his second report enumerates the factors which he feels are reassuring on the subject of his rehabilitation such that he opined that the offender had good prospects of being successfully rehabilitated. He mentioned a variety of factors pointing to this conclusion including the absence of major mental illness and a stated desire to avoid the use of drugs in the future.
I have borne in mind the discussion in BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159 at [5] that immaturity may lessen general deterrence but observe, in that respect, that the offender is above the age of 18 or 19 years of age there discussed, being in the mid-twenties. Further, as the offender accepted there is authority that serious driving offences including murder are often committed by young offenders of previous good character and "that general deterrence is very much a consideration to be kept in mind in framing an appropriate sentence": Hall at [67] (per Sully J, with whom Meagher JA and Howie J agreed).
However, an offender's mental disorder may be taken into account as reducing the need for general determine, but the moderation is reduced in the circumstances where the offender acts with knowledge of what he is doing and its gravity, as found by Dr Furst with respect to the offender in this case (see R v Wright (1997) 93 A Crim R 48 at 51 (per Hunt CJ at CL)).
Given the violent nature of this offence and its circumstances, I consider that general deterrence must play a role in sentencing.
There can be no question that the offender will require close and careful supervision and treatment to readjust to community life, particularly given the need for psychological intervention having regard to his ADHD. As Ms Duffy opined he needed, amongst other things, financial and emotional support. Dr Furst referred to the need for supervision to ensure "abstinence from drugs of abuse" as well as "appropriate psychological follow-up".
In my assessment, however, notwithstanding his social isolation and aging parents, given the length of the sentence which must necessarily be imposed upon the offender, the result of the statutory ratio will provide him with a suitable period for such supervision.
I do not find special circumstances.
In sentencing the offender I have been mindful of the two legislative guideposts of the maximum sentence and the standard non-parole period (Muldrock at [27]) together with factors bearing upon the objective seriousness of the offence and subjective features.
I note statistics and the five cases on "driving murder" provided by senior counsel for the offender for the purposes of sentencing. I have taken those into account. Each sentence must be determined upon its own facts and circumstances as no two cases are the same although I note the offender's reference to the principle of consistency.
The offender has been in custody since his arrest on 26 March 2018.
Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), I am required to advise you, Mr Rowe, of the existence of that Act and of its application to the offence with which you have been convicted.
The Court has received submissions from counsel, albeit at the time of the making of sentencing remarks, as to the operation of the Road Transport Act 2013 (NSW) ("RT Act"). I should note in that respect that I have been referred to the provisions of s 205(1) and (2)(d) and s 206A of that Act and I note the provisions of s 4(1) of the RT Act defining a "major offence".
Section 205(1) and (2)(d) of the RT Act provides: 205 Disqualification for certain major offences (1) Definitions In this section - automatic disqualification means a disqualification under this section from holding a driver licence without specific order of a court. convicted person means a person who is convicted of a major offence. conviction means the conviction in respect of which a person is a convicted person. ordered disqualification means disqualification under this section from holding a driver licence that is ordered by a court. (2) Disqualification if no previous major offence If, at the time of the conviction of the convicted person or during the period of 5 years before the conviction (whether that period commenced before or commences after the commencement of this section), the convicted person is not or has not been convicted of any other major offence or committed a major offence during that period that was dealt with by way of penalty notice (whether of the same or a different kind) - … (d) where the conviction is for any other offence - (i) the person is automatically disqualified for a period of 3 years from holding a driver licence, or (ii) if the court that convicts the person thinks fit to order a shorter period (but not shorter than 12 months) or longer period of disqualification - the person is disqualified from holding a driver licence for such period as may be specified in the order.
Section 206A provides: 206A Effect of imprisonment on period of disqualification (1) In this section - major disqualification offence means - (a) a major offence, or (b) an offence against section 115 or 116(2). sentence does not include - (a) a suspended sentence, or (b) a sentence (or any part of a sentence) that is to be served in the community or by way of home detention. (2) This section applies to a person who is, after the commencement of this section - (a) disqualified from holding a driver licence for a specified period as a consequence of the person being convicted by a court of a major disqualification offence (whether or not the disqualification is imposed by an order of a court), and (b) sentenced to imprisonment as a result of that conviction. (3) The specified period of disqualification of the person is extended (by the operation of this section) by any period of imprisonment under that sentence that is served after the commencement of the disqualification. (4) For the purposes of this section, a period of imprisonment does not include any period that the person has been released on parole. (5) The extension of a period of disqualification by the operation of this section is subject to any order of the court that convicts the person relating to the operation of this section.
Section 4(1) of that Act defines a "major offence" as follows: major offence means any of the following crimes or offences - (a) an offence by a person (the offender), in respect of the death of or bodily harm to another person caused by or arising out of the use of a motor vehicle driven by the offender at the time of the occurrence out of which the death of or harm to the other person arose, for which the offender is convicted of - (i) the crime of murder or manslaughter, or (ii) an offence against section 33, 35, 53 or 54 or any other provision of the Crimes Act 1900, (b) an offence against section 51A, 51B or 52AB of the Crimes Act 1900, (c) an offence against section 110(1), (2), (3)(a) or (b), (4)(a) or (b) or (5)(a) or (b), (d) an offence against section 111, 112(1)(a) or (b), 117(2), 118 or 146, (e) an offence against section 117(1) of driving a motor vehicle negligently (being driving occasioning death or grievous bodily harm), (f) an offence against clause 16(1)(b), 17 or 18 of Schedule 3, (g) an offence of aiding, abetting, counselling or procuring the commission of, or being an accessory before the fact to, any crime or offence referred to in paragraph (a)-(f), (h) any other crime or offence that, at the time it was committed, was a major offence for the purposes of this Act, the Road Transport (General) Act 2005, the Road Transport (General) Act 1999 or the Traffic Act 1909.
I have received brief submissions from counsel as to the effect of s 206A and, as I have noted in the course of argument, I consider that subs (5) of that provision provides a discretion in the Court as to whether or not the Court may, in addition to any mandatory disqualification period, nonetheless impose an extension of the period of disqualification in the event that a person is convicted.
193 I will, in the course of the sentence I will now impose, pursuant to that discretion, impose a period of disqualification which is less than the mandatory period reflected in the automatic provisions of the RT Act. I mention that fact merely to disassociate those automatic provisions with the discretion that I now exercise.
Mr Rowe could you please stand.
For the reasons I have given, I now make the following orders:
Jonwa Rowe, you are convicted of the murder of Steven O'Grady.
I sentence you to imprisonment for a non-parole period of 17 years and 6 months commencing on 26 March 2018 and expiring on 25 September 2035 and the balance of the term of 5 years and 6 months commencing on 26 September 2035 and expiring on 25 March 2041.
Thus, you will be eligible for release on parole at the expiry of the non-parole period on 25 September 2035.
Pursuant s 206A(5) of the Road Transport Act 2013 (NSW) you shall be disqualified from the holding of a license, if released on parole, for a period of 12 months. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2019

R v Rowe

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