R v Shephard

Objective features

1. The facts of what the offender did to commit all three offences can be shortly stated.
2. Between mid-July and late October 2017, the offender supplied methylamphetamine on many occasions in this regional centre. Although he was not at the highest level, nor was he a street dealer. In truth, he was operating at an intermediate level, in that he had "up-line" suppliers in Sydney, used a number of mobile phones, and on-supplied to people lower in the criminal structure. The operation was not particularly sophisticated, not least because police have been readily able to investigate its parameters by electronic surveillance. The largest quantity of the drug supplied on a single occasion was 1 ounce (or 28 g) in return for $6,000. Some of the supplies that make up the total of 505 g (that is, 5 g above the statutory cut-off point for this "aggravated" version of the offence) never proceeded, and were merely agreements or offers to supply. On the other hand, the offending was surely lucrative, and generated at the least the $10,000 cash to which I have referred.
3. Speaking generally, I think one is entitled to take judicial notice of the distortion and damage that that particular prohibited drug does, not only to unfortunate drug-dependent individuals, but also to Australian society generally, and, in particular, to its regional centres. I interpolate that there is no evidence whatsoever that, at the time he was disseminating this drug into the community, the offender was addicted to, dependent upon, or even using, amphetamines.
4. At the time, the offender was in a de facto marriage with a woman by the name of Tracy King, with whom he lived in the township of Coolamon. He was also having an affair with a woman by the name of Katie Barnett, who lived at The Rock. Both of those townships are close to Wagga Wagga. One of the persons to whom the offender supplied the prohibited drug was the deceased, a young woman then aged 27 years.
5. In early August 2017, Ms Barnett informed the offender that she had been the victim of a break and enter. She expressed the opinion that the perpetrator was perhaps the deceased. As well as that, the offender came to believe that the deceased had threatened his girlfriend, Ms Barnett. The evidence does not establish the truth of any of that, but even if it did, certainly the offender had absolutely no right whatsoever to take matters into his own hands in any way. Because of his unlawful business, it was of course impossible for him to go to the police with any concerns he or his girlfriend may have had about the deceased.
6. In the afternoon of 10 August 2017, the deceased was driven by a friend to Coolamon. She travelled there to meet the offender, so that she could obtain methylamphetamine from him. The offender was in the backyard of his house, in the company of his friend, Anthony Hagan. Ms Barnett contacted the offender, expressed her jealousy of the deceased, and indicated that she was coming over to the township herself.
7. The deceased arrived at the premises, alighted from the car, and told her friend to leave. That was because she believed that she would be given a lift home by the offender in due course, after he had supplied her with the prohibited drug. Clearly enough, she was completely unsuspecting as to what was about to happen.
8. The group comprising the offender, the deceased, and Mr Hagan then drove about 5 km away from Coolamon in a vehicle owned (in a practical sense) by Ms King. Ms Barnett arrived in a separate vehicle, with her three children as passengers. They were at an isolated spot. Someone asked Mr Hagan to drive the children away, and he did so. Ms Barnett spoke to the deceased about the alleged break and enter at her home at The Rock.
9. At the time, the offender was armed with a pistol that was tucked into the waistband of his pants. I infer from the nature of his unlawful business, and from his criminal record (which I shall discuss in more detail shortly) that it was not uncommon for the offender to be so armed. He produced it, and murdered the deceased by shooting her three or four times, undoubtedly from close range, and undoubtedly with an intention to kill her. Although it is true that the deceased cannot have suffered for an extended period, there is surely something almost dismissive about the execution of a person by way of the use of a handgun.
10. Thus the life of a fellow human being was extinguished, for no reason other than the offender believing that she was some sort of annoyance, or trouble, or threat. After a period of reflection, my findings about motivation cannot go further, on the criminal standard.
11. Mr Hagan returned to the scene, and Ms Barnett departed in her own vehicle with her children. The offender and Mr Hagan buried the body of the deceased in a nearby State Forest. They also burned their clothes. Later, the motor vehicle of the wife of the offender was destroyed by fire, no doubt with an eye to making scientific examination difficult or impossible.
12. The body of the deceased has never been found. That has caused great distress to many who, quite apart from the enormous, overarching pain they feel at her loss, are desperate to give her a decent burial.
13. Later, efforts to keep the murder secret steadily unravelled, not least because the police were lawfully intercepting the telephones of the offender and others. On 24 August 2017, about two weeks after the murder, the offender spoke on the phone to Ms Barnett about the deceased with a great dismissiveness and harshness. I do not regard his extremely unattractive words on that occasion as an aggravating feature of this matter. I do think, however, that they provide a window into the state of mind of the offender, when, with the utmost callousness, he fatally used a handgun to solve his perceived problem.
14. Eventually, the persons involved in the matter were all arrested. At various stages, and to varying degrees, they turned on each other. Mr Hagan, Ms King, and Ms Barnett were all convicted of, and sentenced for, various criminal offences, but neither their crimes nor their punishments can approach the gravity of those of the offender.

Objective gravity

1. Turning now to my assessment of the gravity of all that the offender has done, the maximum penalty and standard non-parole period of the drug offence speak for themselves. Money was generated, and no doubt damage was done. On the other hand, the offender was operating by no means at the highest level; he was not sophisticated enough to adopt successful counter-surveillance measures with regard to his communications; he was a mid-level supplier; the large commercial quantity is an aggregate of smaller offences over many weeks; some of the components of that aggregate were not actual supplies; and the total quantity is just over the statutory border. I assess the drug offence as a somewhat less serious example of a very serious offence.
2. As for the offence to do with the cash, it will play only a small role in increasing the sentence for the drug matter, chiefly because the generation of significant cash profits is "part and parcel" of dealing in prohibited drugs in very large quantities.
3. Turning to the murder, of course, all examples of that offence are, by their nature of the utmost gravity. Nevertheless, I am required by law to make an assessment of the objective seriousness of this particular murder, amongst other things in order to give proper effect to the maximum penalty and standard non-parole period provided by Parliament.
4. Here, defence counsel has accepted that the offence was not spontaneous. He spoke of an opportunity being taken to complete an act that had been within the contemplation of the offender for a time, a proposition with which I agree. Whilst the offender believed that the deceased constituted a problem that was troubling to him, there is no suggestion that he acted in an explosion of anger or other emotion. He used a weapon that is itself inherently unlawful, and is designed for no purpose other than to cause fear of death or death itself. There is a deeply anti-social element present in this case of a person taking matters into their own hands and inflicting fatal violence. By the time she reached the isolated spot where she was shot to death, the deceased was an unsuspecting and completely vulnerable young woman. Her body was heartlessly disposed of, and it has never been found. Other measures were adopted by the offender, or at his request, in a futile effort to keep this offence permanently hidden.
5. In my opinion, this murder cannot be assessed as anything other than an extremely grave example of the most serious offence against a human being known to the criminal law.

Subjective features

1. Turning now from the offences to the offender, as I have said, no evidence was placed before me on his behalf. With the permission of his opponent, senior counsel explained from the Bar table that that was done on instructions, as a simple reflection of the acceptance by the offender of the gravity of what he had done. I do not cavil with that undisputed proposition, but the inevitable outcome of the approach of the offender is that I know very little about him, and in particular nothing that could reduce the sentence for either offence, except what I can glean from the Crown case on sentence.
2. As I have said, the pleas of guilty were entered on arraignment. That occurred after a committal that was, on the one hand, extended and featured cross-examination. On the other hand, I think that it played a useful role in resolving the matter. The parties were not far apart, in any event, in their submissions about the discount that should flow from the utilitarian value of those pleas of guilty and their timing. In my opinion, this would have been a lengthy, complex, and heart wrenching trial. The pleas entered meant that none of that need occur. In my view, they should lead to a utilitarian discount of 15% on the starting point of the head sentence for each offence.
3. Senior counsel accepted that there is no evidence of remorse, especially in the highly specific sense in which statute speaks of it. Although the offender has accepted his legal responsibility for all that he has done, I agree with that submission. Nor did senior counsel rely upon the fact that the offender recently left gaol with police, in a fruitless effort to find the body of the deceased, for such a finding. I agree with that approach as well, although I do not go further, in an adverse way, to find that that effort was a mere sham or charade.
4. The criminal record of the offender shows that he was born in October 1980, and is therefore approaching the age of 40. I know nothing of his upbringing, adolescence, early adulthood, or physical, psychological, and psychiatric health at any stage of his life. Nor do I know anything of his relationships past or present, apart from the fact that, as I have said, at the time of the offences, he was living in a relationship with one woman and having an affair with another. Apart from one broad aspect that I shall discuss shortly, I know nothing about how things have proceeded in prison over the past two years or so, and what his aspirations are for the future.
5. I do know from the admitted contents of his criminal record that, apart from a driving offence 14 years ago that is of no moment, the offender had never committed a criminal offence until he possessed a pistol without authorisation in 2016. Reaching his mid-30s without relevantly offending is something deserving of some credit, I think. On the other hand, in 2016 the offender received a short sentence of community service for possession of that contraband, and no doubt the pistol was taken from him by the authorities. It is noteworthy that, within a year, he had obtained for himself another handgun, and used it to commit murder.
6. Finally, the printout from the Department of Corrective Services does not record any infringements of prison discipline by the offender. I think that on balance one could draw from that the inference that the offender has spent the past many months in custody quietly and without causing trouble, and one might perhaps expect that to continue into the future. Beyond that circumscribed finding, the future is unknowable.
7. Those few brief matters that I have recounted are the extent of the subjective mitigation that can be derived from the evidence placed before me.

Parity

1. Turning briefly now to the question of parity of sentence between co-offenders broadly defined, the parties helpfully placed before me in tabular form the sentences that have been imposed upon Mr Hagan, Ms King, Ms Barnett, and also upon a Ms Bronwyn Parker. She was sentenced for supplying a little over 100 g of methylamphetamine, and was part of the criminal network in which the offender played a much greater role.
2. I have reflected upon all of those sentences, and taken care to ensure that the sentences I impose cannot give rise to a justifiable sense of grievance on the part of the offender, when he compares his outcome with that of others. But the simple fact is that the objective gravity of the offending under discussion far outstrips that of those other persons, and significant matters in mitigation that applied to them (including, in more than one case, an aspect that called for a significant further discount) have no role to play here. It is true that the total sentence that I shall impose upon the offender is far greater than the sentences imposed upon all of those other persons. But that is an inevitable consequence of the gravity of the crimes of the offender, and the absence of any mitigating evidence.

Various Aspects

1. Dealing now with some discrete matters, the offender will be given the agreed benefit of a full backdate to the date of his first arrest and commencement of continuous custody for these matters; that is, 27 October 2017.
2. Secondly, these remarks capture all of the objective and subjective features upon which my sentence is based, and I shall not list them again in a mechanistic way.
3. Thirdly, I agree with senior counsel for the offender that there is no ground for a finding of special circumstances, except to avoid the well-known arithmetical distortion caused by cumulation of sentences.
4. Fourthly, I also accept the joint submission of counsel that there should be partial cumulation and concurrence between the two sentences, not only to reflect totality generally, but also because the criminality of each offence was undoubtedly intertwined with that of the other.
5. Fifthly, I was helpfully provided with a number of sentencing judgments, both at first instance and on appeal, pertaining in particular to murders committed by way of the use of a handgun. I have reflected on those, but because each case must turn on its own facts, I shall not pause now to discuss their details.
6. Sixthly, the offender should be aware that it is possible that he will be detained in custody, not only after the complete expiry of his non-parole period, but even after the expiry of his entire head sentence, if it is established at that stage that he constitutes a danger to the community.
7. Relatedly, and finally, patently at the time of the commission of these offences in the second half of 2017 the offender was a very dangerous person. And I think that as at now, a little over two years later, the same finding must be made. But trying to make predictions about how people may or may not be a long way into the future is, I think, fraught with the danger of error. In short, the sentence that I shall impose for the murder does not reflect any contingent incapacitation for future dangerousness when the offender may be able to be released, many years from now.

Effects of murder

1. I conclude by reflecting upon the harmful effects that a murder has upon the Australian community as a whole, an exercise that the Crown prosecutor submitted I am entitled to undertake pursuant to statute, and that senior counsel for the offender did not resist.
2. Speaking generally, an act such as this surely detracts from the general sense of security enjoyed by members of our community, and the shared sense of respect for human life that is part of any civilised society. In my opinion, it casts a shadow of brutality that extends well beyond the loss of a single life, inherently grave though that is.
3. And reflecting more specifically upon the effect that a murder such as this has had upon those who loved Allecha Boyd when she was alive and cherish her memory now, this case is a very good example of how the consequences of the taking of a single life extend far, far beyond the loss of that person.
4. I heard three heartfelt victim impact statements during the Crown case on sentence. Many others were in the courtroom who did not choose to speak, but who, I am sure, are suffering as well.
5. Unquestionably, the consequences of the loss of the deceased that day will be felt for many decades. The family of Ms Boyd has been severely damaged, damaged almost to the point of destruction. More than one person has sought solace in alcohol; others have obsessively searched for her body; others reflect bitterly on the unrealised potential of this talented chef; yet others rely upon medication for anxiety and depression just to keep going, day after desolate day. All, I infer, are unable to comprehend how or why this short life was snuffed out. As I have said, their pain is made worse by the inability to conduct a funeral with a respectful burial. Regrettably, I suspect that that form of closure will never be available.
6. No doubt everyone in this courtroom and on the AVL appreciates that the criminal justice system can do nothing to bring back the life of this much-loved woman, nor even to command somehow the return of her body. All it can do, through me, is to express its recognition of the gravity of the suffering that has been occasioned directly and indirectly in this case, and to impose a sentence of due severity in response.

Aspects of sentence structure

1. Explaining aspects of sentence structure for a moment, in my opinion, the starting point for the drug offence, taking into account the offence on the Form 1, should be imprisonment for nine years. The starting point for the murder should be imprisonment for 29 years. As I have said, there will be a 15% discount on the starting point of each head sentence. There will be a measure of partial cumulation between the two sentences in the amount of three years. Special circumstances will not be found to reduce the non-parole period of either offence, except to ensure that cumulation does not lead to interference with the statutory ratio. There has been a small amount of necessary rounding down in my calculations. I might add that, immediately after I adjourn, a diagram that sets out in readily comprehensible form all that I have just explained will be available to be distributed to all interested persons.

Orders 1. Samuel John Shephard, you are convicted of the offence of murder. 2. You are further convicted of the offence of supplying a large commercial quantity of the prohibited drug methylamphetamine. 3. For the drug offence, I impose a non-parole period of 5 years 8 months, to commence on 27 October 2017. That will be followed by a parole period of 1 year 11 months, which will expire on 26 May 2025. 4. For the murder, I impose a non-parole period of 17 years 8 months, to commence on 27 October 2020. That will be followed by a parole period of 6 years 11 months, which will expire on 26 May 2045. 5. To express my sentences another way, I have imposed a total head sentence of imprisonment for 27 years 7 months, with a total non-parole period of 20 years 8 months, with a full backdate. 6. The first date upon which it appears that the offender will be eligible for possible release to parole is 26 June 2038.

Amendments 03 March 2020 - Order 3: "June" replaced by "May"; length of sentence unaltered. 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: 03 March 2020