R v Spinks

Findings as to the facts of the case

1. The first and critical task is to determine the facts of the case. The offender is to be sentenced on the facts established by the evidence adduced at trial, together with any evidence tendered in the course of the sentencing hearing. The factual findings must be consistent with the verdict of the jury: Isaacs v R (1997) 41 NSWLR 374 at 377-378; (1997) 90 A Crim R 587. Aggravating circumstances must be established beyond reasonable doubt, while mitigating circumstances are to be proved on the balance of probabilities: R v Pilley (1991) 56 A Crim R 202 at 204.
2. There was not a great deal in dispute in the present case. Most of the facts were agreed. The parties tendered an Agreed Facts document pursuant to s 191 of the Evidence Act 1995 (NSW). It was Exhibit B at the trial.

Home invasion by the deceased

1. On 5 February 2018 (nine days before the murder), the deceased threatened the offender with a knife at the offender's home in Koonawarra. The two had been friends for many years, but the deceased, as a result of his mental illness (schizophrenia) had a delusional belief that the offender was sleeping with his partner, Ms Hazell. Mr Costello went to the offender's home, entered the premises and levelled his accusations at the offender. Mr Spinks made four 'phone calls to police seeking help because there was a man armed with a knife in his home.
2. Ms Hazell gave evidence in the trial that Mr Costello told her that he "took a knife inside Spinks' house". [1] Mr Spinks testified about the deceased "accusing [him] of sleeping with Mel". He said "[Mr Costello] pulled out a knife, a pipe and a pretty big bag of ice" whilst in the laundry area of his home. [2] At first, Mr Costello put the knife on the washing machine, but then picked it up and followed Mr Spinks into the backyard. At the time, Mr Spinks' partner and children were in the lounge room and kitchen getting ready for work and school. The offender said that the deceased was "holding [the knife] with the blade facing towards [him]", "a few inches, 6 inches or so - 20 centimetres from [his] body". [3] Every time the offender stepped back the deceased took a step forward closing the distance between them. Eventually the deceased left before the police arrived.

The events of 13 and 14 February leading up to the shooting

1. The deceased went to the home of Daniel Blow and Donna Scales in Unanderra at about 10.20pm on 13 February 2018 in the company of Ms Hazell. The house was on a corner block and the Court attended on a view of the scene during the trial. The deceased had purchased a new Honda Accord the day before (registration "50 DUMB") and Mr Blow was assisting with some minor repairs.
2. At about 10.23pm, a Holden SS Commodore sedan with a white body and black roof driven by the offender, was captured on CCTV driving past the Unanderra 7/11 in the direction of the Unanderra premises. Prior to being stolen on 8 October 2017, that car was blue in colour and its number plates bore the registration DKM 19L. The offender's neighbour had observed a blue SS Commodore in Mr Spinks' yard in January 2018 and saw the offender spray paint the car. The DKM 19L number plates were also observed affixed to a silver Ford Territory parked in the offender's front yard.
3. After driving past the 7/11, the offender picked up Adrian Cristallo from his house in the same street as the Unanderra premises and drove to those premises where the deceased and Ms Hazell were sitting in the driveway in the Honda Accord. Mr Blow was outside the car, fixing the bumper bar. Mr Cristallo got out of the car and went to speak to Mr Blow. When Mr Cristallo returned, he told the offender that the deceased and Ms Hazell were also present. After dropping Mr Cristallo home, the offender drove the SS Commodore to the nearby suburb of Cordeaux Heights.
4. At 10.50pm, the offender called a taxi driver he knew, Raif Matar. He asked Mr Matar to pick him up from the Noonga Reserve in Cordeaux Heights (near where the offender had parked the SS Commodore) and drop him back to his home in Koonawarra. GPS data from Mr Matar's taxi showed that the route taken with the offender went past the Unanderra premises. In the meantime, the deceased, Ms Hazell and Ms Scales left the house and drove to McDonalds in Wollongong. They returned via a service station and car wash. Mr Costello parked the Accord at the kerb, adjacent to the side of the house, and Mr Blow continued to work on the car.
5. At 12.50am, the offender parked a black Mercedes SUV on Yorkshire Road in Dapto before walking a short distance to the 7/11 service station at the intersection of Fowlers Road and the Princes Highway. The SUV was stolen in Kiama the previous weekend and observed by a neighbour to be in the offender's yard. CCTV cameras situated on a house near the 7/11 caught what the parties agreed were the headlights of the vehicle as it arrived and the offender walking away from the vehicle and towards the 7/11. Mr Spinks was then seen on CCTV at the 7/11 purchasing two cans of Coca Cola and a pie. The offender returned to the SUV, and CCTV footage showed the headlights turning on and the vehicle turning onto Fowlers Road at 1.08am. The SUV is captured on CCTV footage from a different location in Unanderra, en route to the Unanderra premises.
6. It is agreed that the offender then drove to the vicinity of the Unanderra premises and circled the surrounding streets. This was also captured on home CCTV cameras. The offender passed the Unanderra premises on at least four occasions.

The shooting itself

1. Just before 2.10am on 14 February, the Honda Accord was still parked by the kerb. Ms Hazell was sitting in the front passenger seat and the deceased and Mr Blow were outside the vehicle. The SUV stopped around the corner from the house, and the offender fired a single shot from the shotgun. A number of people, including Ms Hazell, Mr Blow and a neighbour, Paul Thomas, heard the shotgun discharge. Mr Spinks gave evidence that this was an accidental discharge of the firearm. [4] The SUV then drove past the front of Mr Blow's house and pulled up alongside the Honda Accord. Its headlights were off and the sun visors down. Ms Hazell was still in the front passenger seat and the deceased was standing on the grass verge between the car and the fence of the Unanderra premises. Mr Blow was bending down or kneeling near the front of car.
2. Mr Spinks produced a shotgun and fired two shots from the front passenger window of the SUV. One of the shots had a slight downward trajectory, travelling through the closed rear driver-side window, creating a hole in that window. The shotgun pellets caused additional damage to the rear passenger door and a portion of the window above (which was wound almost all the way down). The other shot had a slight upward trajectory, travelling through the driver's side window and through the mostly open kerb-side window. The pellets hit the deceased's neck, chin and the right side of his chest. Mr Costello died at the scene.
3. There can be no doubt that the voluntary act of the offender in discharging the shotgun caused the death of Mr Costello. The evidence of a forensic pathologist, Dr Bernard Ions, established that the cause of death was the "pellet wounds and shotgun injuries" to Mr Costello's neck, chin and chest. [5]

Events immediately after the shooting

1. The offender drove the SUV to the nearby Noonga Reserve and set it on fire. Three fired shotgun cartridges were later located in the burnt-out SUV. The front number plate DKM 19L was still affixed. The offender left the Noonga Reserve and walked to the nearby location where he had earlier parked the SS Commodore. The offender drove to a carpark at the back of a residential block in Koonawarra and returned on foot to his home.
2. At 2.48am, the offender called Mr Matar, asking for a ride to the Shellharbour Workers Club. While waiting for Mr Matar, the offender took his dog for a walk. Mr Matar collected the offender from his home and drove him to the Club. They arrived at 3.36am and stayed until closing time (4.00am). Mr Matar then drove the offender home via McDonalds. The taxi arrived at Mr Spinks' address at 4.31am according to CCTV footage and the taxi's GPS data.
3. At 5.00am, the offender organised for an associate, Zlatko Bortic, to paint the SS Commodore in exchange for "a couple of points" of crystal methylamphetamine. Mr Bortic enlisted the help of Ian Carey to paint the car matte black. When police recovered the vehicle on 15 February in a dead-end street not far from Mr Spinks' home, fingerprints matching those of the offender were located on one of the registration plates affixed to the vehicle and DNA was recovered from various surfaces within the vehicle and objects in the car which matched the offender's DNA profile. A jerry car was also located on the back seat of the SS Commodore. [6] An examination by paint and chemical experts confirmed that the car was originally blue but had been painted a number of times; most recently, white with a black roof and bonnet and then matte black.

The true issue at trial: Mr Spinks' intent

1. The only live issue in the trial concerned the mental element of the offence. The prosecution opened on reckless indifference to human life, but this form of intention was not pursued. The prosecution case was left to the jury on the basis that Mr Spinks acted with a specific intention to kill or to inflict grievous bodily harm. The offender's case was that he did not form that intention and that he intended to shoot and damage the car.
2. The offender gave evidence that he was angry with the deceased because he believed Mr Costello had benefited from an insurance claim arising out of a car accident some time earlier. Mr Spinks helped the victim to flee the scene of the accident to avoid trouble with the police. The offender said he believed the deceased had used money obtained through the insurance claim to purchase the new Honda Accord. As I understood his evidence before the jury, Mr Spinks was upset because Mr Costello benefited from his assistance and then broke into his home and made false accusations against him concerning his relationship with Ms Hazell. [7]
3. Mr Spinks said his intention was to damage the car. The prosecution case was that Mr Spinks deliberately fired the gun at the deceased and that, if he did so, the only reasonable inference was that he intended to kill him or inflict really serious injury upon him.
4. The way in which the case was put to the jury, both by counsel for the parties and in the summing up, means that the jury had to have found beyond reasonable doubt that the offender fired the gun at Mr Costello and, in doing so, intended to kill him or inflict grievous bodily harm.
5. In dealing with the process of circumstantial reasoning, I directed the jury in the following terms: "The prosecution relies on what it says the accused did to support the inference as to what his intention was. It says that if you are satisfied that the accused deliberately shot at Mr Costello you would inevitably infer by circumstantial reasoning that he had an intention to kill him or had an intention to inflict grievous bodily harm on him. The case presented by the prosecution is that that is the only reasonable conclusion that you could draw. The only reasonable inference. Of course before you got to that step, you would need first to be satisfied beyond a reasonable doubt of the prosecution's fundamental case that Mr Spinks deliberately fired the gun at Mr Costello." [8]
6. This echoed the directions I gave as to the elements of the offence: "The prosecution case is that Mr Spinks fired the gun at Mr Costello. He aimed to shoot him with the shotgun. That is the prosecution case. And if he did that the prosecution case is that the only possible inference that you could draw from such an act is an intention to kill or an intention to inflict grievous bodily harm." [9]
7. In reminding the jury of the Prosecutors' submissions, I concluded by saying: "But their submission is that all of these things will lead you to the inevitable conclusion that none of it is consistent with somebody trying to go and do some damage to a motorcar. It is on the submission of the prosecutor only consistent with one thing and that is that Mr Spinks fired the shotgun at Mr Costello and did so with the intention to kill him or inflict grievous bodily harm on him." [10]
8. The summary of Mr Spinks case at trial included the following: "He gave evidence that he did not intend to shoot at Mr Costello and he gave evidence as to where he believed Mr Costello was. In fact he said that he deliberately aimed at an area where he knew or thought he knew that Mr Costello was not. His sole purpose was to damage the car." [11] … "But in the end the accused's case is that on an analysis of all of the evidence including the statement of agreed facts and the material supporting that you could not rule out the possibility, the reasonable possibility, that Mr Spinks was aiming to shoot and damage the car. In other words the prosecution has not proved beyond reasonable doubt that the only reasonable inference is that Mr Spinks shot at Mr Costello and intended to kill or inflict grievous bodily harm on him." [12]
9. There is no doubt that the jury was satisfied beyond reasonable doubt that the accused shot at Mr Costello. So am I. The factual basis upon which Mr Spinks is to be sentenced cannot be inconsistent with the jury's finding.

Was Mr Spinks intention to kill or inflict grievous bodily harm?

1. The jury's verdict did not resolve the question of whether Mr Spinks acted with an intention to kill or an intention to inflict grievous bodily harm.
2. There was a dispute between the parties at the sentencing hearing as to which form of specific intent was established. Senior Counsel for Mr Spinks submitted that I would not be satisfied that the offender formed an actual and specific intention to kill. The Prosecutor submitted that the only reasonable inference to be drawn from all of the evidence was that Mr Spinks intended to kill Mr Costello at the time he discharged the shotgun.
3. Ms Manuell SC undertook a careful analysis of the trajectory of the bullets, the fact that one of the bullets hit only the car, the location and nature of the injuries to the deceased, and relied on the proposition that Mr Costello was standing upright next to or near his vehicle [13] but crouched or ducked down at around the time the fatal shot was fired. Based on this analysis, it cannot be held that Mr Spinks aimed at the deceased's chest or head region or formed an intention to kill. At the trial, reliance was placed on Mr Spinks' use of methamphetamine (ice) and the impact of his drug use on his capacity to reason and form the specific intention required to establish murder. This is also relevant to the determination (for the purpose of sentencing) of whether Mr Spinks formed an intention to kill. The forensic evidence did not make it possible to determine the order in which each of the two shots was fired.
4. In spite of these submissions and the careful analysis undertaken by Senior Counsel, I am left in no doubt that Mr Spinks intended to kill Mr Costello at the time he pulled the trigger twice.
5. While the distance between the two men was not completely clear, my observations on the inspection of the scene along with the evidence adduced at trial satisfies me that the distance was much less than the estimate of "in the vicinity of around 10 metres" provided by the Prosecutor at the sentencing hearing. The forensic ballistics expert, Mr Preece, gave evidence that the distance from the shotgun to the rear passenger side window was in the order of 1 to 4 metres. [14] The offender gave evidence that Mr Costello was standing "real close to the car, he wasn't near the fence" and gave an estimate of 1 metre from the passenger side window to the victim. [15] If Mr Spinks intended merely to damage the car, he could have done so easily and by means other than discharging a shotgun. Some of these alternatives were put to him in cross-examination and he could provide no sensible answer. While his use of methylamphetamine probably affected his judgment, it did not impact on his capacity to form an intention to kill. He was able to plan his getaway, set fire to the Mercedes Benz SUV, make his way back to his home, and, it seems, take actions calculated to establish some kind of false alibi (attending the 7/11 before the shooting and going gambling at the Shellharbour Club afterwards).
6. The Prosecutor relied on other circumstances to bolster his submission that Mr Spinks intended to kill. These included the fact that Mr Spinks left his family at home alone in the immediate aftermath of the shooting. However, my reasoning is less nuanced than that. The only reasonable inference that can be drawn from the action of discharging a 12-gauge shotgun, twice, from such a short distance, while aiming the weapon at or in the direction of the deceased, is that the offender intended to kill. I am satisfied beyond reasonable doubt that that was the offender's intention at the time he pulled the trigger.

Objective seriousness, aggravating and mitigating features

An assessment of the objective gravity of the offence

1. This is a very serious case of murder. It was pre-meditated, reasonably carefully planned, carried out in a public place and in the presence of Mr Costello's partner, and involved an intention to kill. The Prosecutor submitted that the offending falls "significantly above" the mid-range of objective seriousness while Ms Manuell submitted that the offence is either in the "mid-range or slightly above" the mid-range of objective seriousness.
2. In Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 at [88], Basten JA (Price and Campbell JJ agreeing) said: "This kind of characterisation, which was no doubt encouraged by the introduction into State law of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to offences the subject of standard non-parole periods, is often unhelpful. That is because it is rarely explained what is meant by the 'middle of the range'. Clearly a range is not a point on a scale, but it could cover anything from 25% to 75% of a most serious case, or it could be far more narrowly defined. Unless it is narrowly defined, it is unlikely to provide useful guidance for the sentencing judge, let alone for those reading the judgment."
3. There is a standard non-parole period of 20 years' imprisonment which applies to an offence "that, taking into account only the objective factors affecting the relative seriousness of that offence, is in the middle of the range of seriousness": Crimes (Sentencing Procedure) Act 1999, s 54A. Accordingly, in spite of the obvious wisdom in the observations of Basten JA in Cargnello, it is necessary to categorise the offence in relative terms and in accordance with s 54A.
4. For the purpose of the application of the standard non-parole period, my assessment, taking into account only the objective features, is that the present offence falls towards the upper end of the middle of the range of objective seriousness for an offence of murder. However, once appropriate weight is given to a particular aspect of the offender's personal case, which bears upon his moral culpability in a significant way, I have decided that the standard non-parole period ought not be imposed.

Aggravating factors

1. The Prosecutor submitted that there are a number of aggravating factors pursuant to s 21A(2) of the Crimes (Sentencing Procedure) Act. I will not address each of the factors referred to in s 21A(2) but simply those referred to by the parties. While I must give effect to the section, sentencing ought not to descend into an application of "some sort of checklist": Ghamraoui v R [2009] NSWCCA 111 at [23] (Grove J, Howie and Buddin JJ agreeing). Rather "it is a matter of synthesising the various factors relevant to a proper assessment of a just sentence, applying the purposes of punishment established at common law and stated in s 3A of the Act, and determining instinctively the appropriate punishment for [this offence] bearing in mind the individual circumstances of this offender": R v Sumpton (No. 4) [2015] NSWSC 684 at [10].
2. The Prosecutor submitted that the offence was aggravated because it involved the use of a weapon: s 21A(2)(c). I am satisfied beyond reasonable doubt that Mr Spinks used a 12-gauge shotgun in the murder of Mr Costello. There was evidence that three 12-gauge shotgun cartridges were recovered within the burnt-out Mercedes SUV, [16] and that wadding from one of the shots fired was recovered in the deceased during the post-mortem examination. [17] Mr Preece, a crime scene officer with expertise in firearms and ballistics, gave evidence that his findings were consistent with the use of a 12-gauge shotgun. [18] The offender admitted in evidence that he used a double-barrelled shotgun. [19]
3. Many murders involve the use of a weapon and this "will often reduce, or perhaps even eliminate, its significance as an aggravating factor": cf Milat v R; Klein v R [2014] NSWCCA 29 at [95] (RA Hulme J, Bathurst CJ and Hall J agreeing), R v Sumpton (No. 4) at [17] and R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh [2020] NSWSC 341 at [33]. However, in this case the weapon used was a particularly dangerous one and I accept that the use of a weapon is an aggravating feature pursuant to the section.
4. The Prosecutor also argued that "s 21A(2)(n) - Planning" was engaged. It was put that there was "a significant degree of planning". I accept that the murder was far from a spontaneous act and that there was a significant degree of planning involved and that this took place over several hours. By way of example, the stolen SS Commodore was deposited at a nearby location just before 10.50pm and the offender attended the 7/11 service station apparently to plant the seeds of a false story. The planning and premeditation involved is a significant factor in my assessment of the objective seriousness of the offence. However, I do not accept that it further aggravates the offence for the purpose of s 21A(2)(n) which requires that the offence be "part of a planned or organised criminal activity". When pressed during oral argument, the Prosecutor acknowledged that this may be the correct approach to the issue.
5. Thirdly, the Prosecutor submitted that the offence was committed without regard for public safety: s 21A(2)(i). I accept this is an aggravating feature of the offence, but I am not convinced it is a matter that greatly affects its seriousness: see, for example, R v Ancuta [2005] NSWCCA 275 at [11] (Brownie AJA, Buddin and Latham JJ agreeing), cf R v Tuala [2015] NSWCCA 8 at [85] (Simpson J as her Honour then was, Ward JA and Wilson J agreeing) and Z v R [2015] NSWCCA 274 at [91]-[94] (Wilson J, Basten JA and RS Hulme AJ agreeing). As Wilson J pointed out in the last of those cases, by reference to [85] of the earlier judgment in Tuala: "92. I do not take her Honour's comments in this paragraph of Tuala as intended to lay down a rigid rule that only an offence committed in a public place in daylight hours will be one which may be taken to have been committed without regard for public safety. Those were relevant features in that particular matter, but each case must turn on its own facts. 93. It could not be said, for example, that a shooting that occurred in the garden of a private residence at midnight could not be one committed without regard for public safety, if there was a well-attended party being held at that location at the time, with many people milling about in the vicinity of the shooting. Whether the commission of a particular offence demonstrates a disregard for public safety will depend upon the particular circumstances."
6. In this case, the offence was committed in the early hours of a Wednesday morning, in a quiet suburban street. There were no passers-by or neighbours outside their properties at the time of the shooting. On the other hand, Mr Blow was in the vicinity and there were people inside the house which was sprayed by some of the shotgun pellets. The offender gave evidence that he had accidentally discharged the firearm shortly before the fatal shots were fired. The disregard for public safety is less significant than would be the case had the shotgun been fired in a bustling shopping centre in the middle of the day. I have given this aggravating factor some weight but taken into account the particular circumstances to which I have referred.
7. Finally, the offence involved a grave risk of death to another person, namely Ms Hazell: s 21A(2)(ib). Ms Hazell was sitting in the front passenger seat of the vehicle and Mr Spinks gave evidence that he "assumed [Ms Hazell] was still in the front seat" at the time he discharged the shotgun. [20] In cross-examination, the offender agreed that he knew that "shotguns sprayed out pellets". [21] In the circumstances, the conduct involved a "grave risk" that Ms Hazell might also be killed. This is a significant aggravating feature.

Mitigating features

1. I accept Ms Manuell's submissions that the following mitigating features under s 21A(3) are established on the balance of probabilities: 1. There was a degree of provocation arising from the earlier "home invasion" and threats with a knife by the deceased and Mr Costello's false (albeit delusional) allegations that Mr Spinks had sexual relations with Ms Hazell: s 21A(3)(c). However, as the Prosecutor submitted, the provocative conduct occurred many days earlier and the offender's planning and disproportionate response diminishes the impact of this factor. On the other hand, the issue has added significance in the context of the offender's mental state arising from an earlier incident where he was attacked outside his home with a knife. 2. There was a high degree of pre-trial disclosure as provided for by s 22A of the Crimes (Sentencing Procedure) Act: s 21A(3)(l).
2. I am unable to find, on the balance of probabilities, that the following mitigating features urged by Ms Manuell are established for the purpose of s 21A(3): [22] 1. The offence was not part of a planned or organised criminal activity: s 21A(3)(b). I accept that the offender was not involved in organised crime and that the offence arose essentially in a personal or domestic setting, but, as I have already observed, there was significant planning involved in the execution of the crime. 2. The offender does not have any significant record of convictions for offences of violence: s 21A(3)(e). Sub-paragraph (e) does not specify "offences of violence". Rather, it refers to "any record (or any significant record) of previous convictions". Mr Spinks has a record of convictions including offences of break, enter and steal (2007 and 2012), weapons offences involving knives (2012, 2018), drug supply (2013), breaching apprehended violence orders (2009) and assault (2008). The offender also has a fairly bad driving record including serious driving offences. Mr Spinks also has a number of matters pending for sentence in the District Court. These offences, to which I will refer in more detail below (see [69] to [70]), were committed after the murder. While this record and the offender's pending matters do not aggravate the offending, it does disentitle him to the leniency that would be afforded to him if he was a first offender. I reject the suggestion that his lack of a significant record of prior convictions is a mitigating feature. 3. The offender is unlikely to reoffend: s 21A(3)(g). My assessment is that this is speculative and will turn on Mr Spinks' engagement with treatment and relevant programmes over the lengthy period he will be required to remain in custody. 4. "The remorse shown by the offender": s 21A(3)(i). Given the friendship between the offender and his victim, it may be that Mr Spinks is remorseful. However, s 21A(3)(i) requires more than that and the evidence on the issue is sparse. After seeing a news report about Mr Costello's death, Mr Spinks' evidence was that he vomited and was in "a lot of shock" when the reality of what he had done "sunk in". [23] This reaction does not fit with his disingenuous text exchange with Brian Foote shortly after the killing. [24] Dr Travis Wearne, psychologist, stated in his report: "Mr Spinks ultimately expressed regret and remorse for the offences: 'I admit it happened… I'm spewing… I wish I had never done it… I think about it a lot… He wasn't the best person but I think about his family… So many things about it I wish never happened'." [25] Dr Richard Furst, psychiatrist, wrote in his report that: "Mr Spinks said he feels bad about being responsible for the death of Nathan Costello and that although he tries hard not to think about it, it 'goes through his head every day.' He has persistent insomnia. He continues to experience symptoms of anxiety, finding it difficult to stop himself from 'over-thinking'." 1. I am unable to find on balance that these expressions of remorse, which are somewhat self-serving and demonstrate limited empathy to the secondary victims of the homicide, satisfy the requirements of s 21A(3)(i).

The impact on Mr Costello's loved ones

1. The offender's callous and premeditated actions have left a trail of devastation. As I remarked in the course of the sentencing hearing, nothing I do or say today will relieve the grief and darkness described in the victim impact statements.
2. Mr Costello's mother, Kathleen, described the moment she "received a phone call that no-one, Mother or family, want[s] or should ever have to hear". The loss of her son has left Ms Costello "devastated, depressed and suffering from post-traumatic stress". Her relationship with her fiancé broke down as a result of the chronic anxiety she has developed since her son's death. Ms Costello says she has "found [herself] isolating from [her] support structures, family and friends and find[s] that [she] has become intolerant and impatient and often very angry". Ms Costello says that she "used to be scared of dying but now [is] scared of living" in a world without her son.
3. Mr Costello's father, Robert, said his son was a "happy go lucky man" and that his son's death has "left [him] in pieces". Mr Costello says he is grateful to "still have [his] memories. No one can take them" and that he will continue to live his life because "Nath would want me to". Mr Costello and his son had a number of plans that they will not get to live out together, but Mr Costello takes comfort in knowing one day he will be reunited with his son.
4. Ms Hazell, the deceased's partner of many years and the mother of his two children, described Mr Costello as her "partner" and "best friend". Without him she feels that "life has no meaning or purpose anymore [because she has] witnessed how easily it can be taken. [Her] optimistic outlook on life is now cloaked in a cloud of darkness". She is left constantly stressed, hypersensitive and has suicidal thoughts. Every aspect of her and her children's lives have been touched and damaged by the loss of Mr Costello and she worries about her children in a world she no longer trusts. Her pain was obvious as she gave her evidence in the trial.
5. To Ms Hazell and Mr Costello's parents, I say thank you and I commend you for your courage in providing your statements to the Court. Nothing I say today, and no sentence I impose on your partner and son's killer, will do anything much to ease your pain or compensate for your loss. I hope that in time the pain will ease although I don't know that it will.
6. A number of Mr Costello's friends and loved ones were also present during the trial and at the sentence hearing. They maintained a quiet and dignified vigil throughout the trial and at the sentencing hearing. I would again like to extend the Court's sympathy to all those affected by Mr Costello's death. It is abundantly clear that Mr Costello has been, and will continue to be, sorely missed.
7. It is well established that the impact of a death on the family of a deceased cannot aggravate the length of the sentence imposed. While the sentencing legislation makes provision for cases where that might appear to be the case, [26] the fact is that all human life is sacred, all lives are equal, and every homicide has a devastating impact on those affected by it.

The offender's subjective case and mitigating circumstances

1. The offender was born on 29 December 1984. He was 33 years old at the time of the murder and is now 37. His personal circumstances, and his decline into drug dependence, is set out in two reports tendered on sentence: one under the hand of Dr Wearne dated 2 May 2021 and another by Dr Furst dated 3 May 2021. The offender also tendered a supplementary report of Dr Furst dated 9 May 2021.

PTSD and provocation

1. The most significant matter raised on the offender's behalf concerns an incident that occurred on 25 August 2017 when he was set upon by a group of three or four men when he was out the front of his house, walking across the road to visit a friend. During the assault, Mr Spinks was stabbed and suffered a serious wound to his abdomen. The wound required surgery and a short period of hospitalisation. This left him on-edge, nervous, avoidant of people and made it difficult for him to relax. Mr Spinks experienced paranoia, insomnia and increased levels of anxiety. These symptoms are consistent with "trauma-related anxiety symptoms" and Dr Furst found that Mr Spinks fits the diagnostic criteria for post-traumatic stress disorder (PTSD). Mr Spinks' drug use increased following this incident, which ultimately impacted his mental state at the time of Mr Costello's murder.
2. This was also the context in which the incident on 5 February 2018, when Mr Costello used a knife to threaten Mr Spinks in the latter's home, occurred. This incident aggravated his trauma response and the PTSD symptoms.
3. Dr Furst provided an opinion as to the impact of this sequence of events: "Therefore, the combination of untreated post-traumatic stress disorder in the offender, present for about 6-months after he was stabbed on 25/08/17, the effects of his ongoing use of methylamphetamines and the threatening actions of the victim towards Mr Spinks at his own home on 05/02/18 appear to have resulted in Mr Spinks' becoming emotionally unravelled, highly anxious and most likely paranoid, leading him to embark on the course of offending behaviour described in the agreed facts document on the night of 13/02/18 and the early hours of 14/02/18 and mitigating to some degree against the seriousness of his actions."
4. I accept Dr Furst's opinion and am satisfied that the unusual conglomeration of events, and its impact on the offender's mental state, reduces Mr Spinks' moral culpability. The offence remains objectively very serious. These matters do not impact the assessment of objective seriousness made earlier in this judgment, but the reduction in the offender's moral culpability must be reflected in a sentence substantially below the standard non-parole period. In reaching this conclusion it must be remembered that Mr Spinks' record for violence was limited before the events of early 2018. I have taken into account the spate of crimes he committed in the months around the murder of Mr Costello, and the facts of those offences, but remain of the view that the combination of the PTSD and provocative conduct of Mr Costello nine days earlier ought properly to mitigate the severity of the sentence in a discernible way.
5. None of this is to cast blame on Mr Costello, a matter feared by Ms Hazell in her victim impact statement. Mr Costello himself suffered from a serious mental illness and this explains his conduct in the offender's home on 5 February 2018. However, having been attacked with a knife in August 2017, suffering from the symptoms of untreated PTSD and anxiety, and then being confronted with a knife wielded by a friend in his own home, is part of the complex factual matrix in which Mr Spinks did what he did. It is a matter entitled to significant weight.
6. I accept Ms Manuell's submission that the weight to be afforded to general deterrence is reduced to some degree as a result of the offender's PTSD. However, the need for general deterrence in circumstances where an offender takes matters into their own hands is well established. General deterrence remains an important part of the sentencing process.

Personal circumstances

1. At the time of the offence, Mr Spinks was living with his partner of eight years and their two children, a son and a daughter. Mr Spinks also has a daughter from a previous relationship. His partner remains supportive of him.
2. Mr Spinks grew up in a mostly stable home with his mother, father and sister in Unanderra. His parents separated when he was 13 years old. While the offender had a history of behavioural difficulties at school, he was not formally diagnosed with any condition and completed his school certificate before becoming an apprentice painter. He worked as a painter for about seven years but struggled to get work after he lost his license. Mr Spinks has remained unemployed as a result of his drug addiction, drug-related criminal offending and periods of incarceration.
3. In addition to his PTSD, Mr Spinks has a substance use disorder. At the time of the offence, Mr Spinks was unemployed, had been incarcerated on four occasions between 2012 and 2017 and struggled to cope without resort to drug use. He was reliant on methylamphetamines. He started smoking ice when he was 18 years of age and developed a habit of daily use between the ages of 22 and 27. At the time of the offence, Mr Spinks was smoking ice on multiple occasions each day. This was at least partially a response to his PTSD and its associated symptoms.
4. Dr Furst's report notes that Mr Spinks had not seen a psychiatrist or attended a mental health clinic or facility prior to 2013 and has not had the benefit of treatment for his substance abuse. Dr Furst noted that Mr Spinks was "receptive to engaging with support services in the future". The offender is yet to have access to therapeutic and other drug programs in custody because he is a remand prisoner. However, Dr Wearne notes that the offender "is cognitively minded and a very good candidate for psychological treatment providing he commits to the treatment that he needs".
5. Dr Furst reported that Mr Spinks has experienced a number of stressful events whilst in custody. His friend he had known since he was 13 was stabbed and killed in the AVL area of Parklea Correctional Centre on 22 April 2020 and another inmate committed suicide in August 2020. Mr Spinks was working as a sweeper at Parklea at the time and was involved in the immediate aftermath of the incident. Mr Spinks witnessed a number of other violent events while in gaol and his mother died in December 2020 while he was on remand. These events exacerbated Mr Spinks' anxiety and insomnia symptoms and he has become increasingly wary around new cellmates.

Offences after the murder

1. The prosecution also adduced evidence in relation to offending by Mr Spinks which postdates the murder of Mr Costello. There were five statements of agreed facts (Exhibit SB). The Prosecutor conceded that this evidence was tendered on a limited basis and that the evidence is relevant for only two purposes: [27] "First of all it deprives the offender of the leniency he could've otherwise been afforded if he had come to the Court saying 'I have been out of trouble since this offending occurred'. Secondly it does go to the assessment of likelihood to re‑offend but appreciating of course, that we're talking about a prediction very far into the future."
2. Exhibit SB demonstrates that following the murder of Mr Costello, the offender was involved in drug supply in the Illawarra region, breached a firearms prohibition order, committed further firearms and ammunition-related offences, possessed explosives, received a stolen car, destroyed a vehicle, hindered police investigations and participated in a criminal group. At least one of the offences, the supply of a firearm later used in a shooting incident, is extremely serious. However, Mr Spinks does not stand to be sentenced for that (or any other) offence. The escalation of Mr Spinks' offending in this period is somewhat out of character when considered against his criminal record before 2018.
3. I have taken this criminal offending into account in the ways suggested by the prosecution. There is some disentitlement to leniency because it is obvious that Mr Spinks is in a worse position than somebody who has remained crime free in the aftermath of a murder. On the other hand, the offences were part of the same downwards spiral in which the murder of Mr Costello occurred.
4. I have also considered this evidence in making assessments of Mr Spinks' prospects of rehabilitation and his likelihood of re-offending. However, in view of the length of the sentence that must be imposed, these assessments are necessarily speculative. As Dr Furst suggests, Mr Spinks' recidivism has been drug-related in the past and his likelihood of reoffending will inevitably depend on him receiving treatment for his substance use disorder and on his participation in relevant programmes while in custody. If Mr Spinks engages in these programmes in a meaningful way, and if he is able to cope with his psychological issues without resorting to drug use, I am satisfied he will be able to function lawfully upon his release to the community.
5. I have taken into account Dr Wearne's statistical assessment that Mr Spinks' risk of committing further general and violent offences is in the "High-Moderate" range. However, given the lengthy custodial sentence the offender will serve, any determination of the offender's prospects of rehabilitation and his likelihood of reoffending is difficult to predict.

Facilitation of the course of justice

1. The trial was run efficiently and economically by Mr Spinks' lawyers. The offender entered a plea of guilty to manslaughter on arraignment. The parties agreed upon and tendered an 8-page document of agreed facts (Exhibit B). As a result, most of the witnesses on the prosecution's original witness list were not required to give evidence. Those who did give evidence were cross-examined in a focussed and efficient manner. Very little, if any, time was wasted. Putting aside the length of the jury's deliberation, the trial was completed in about 2 weeks. It had an original estimate of 4 to 5 weeks.
2. This facilitation of the course of justice by the offender and his legal representatives is a matter to be considered pursuant to s 22A of the Crimes (Sentencing Procedure) Act. In Droudis v R [2020] NSWCCA 322 at [104]-[105] the Court of Criminal Appeal held that it was not necessary to nominate the sentence that would have been imposed if it were not for this factor or to nominate a numerical discount. However, the Court held that this course will often be preferable.
3. I propose to reduce the sentence by 5% in accordance with s 22A. When I indicated this intention in the course of sentencing submissions, neither counsel suggested it was an inappropriate approach.

Delay and back-dating of sentence

1. The offender was arrested in July 2018. His trial was listed to commence on 23 March 2020 but could not proceed due to the lockdown that went into effect on or around that date as a result of the COVID-19 pandemic. The trial was relisted and proceeded on 2 February 2021. The result is that there has been a delay of almost three years between the offender's arrest and today's date and the offender has been left in a state of uncertainty at a time when gaol visits have been quite restricted as a result of COVID-related public health orders and unusual gaol routines. While this is not a matter of great weight, given the offender's plea of not guilty to murder throughout the process, I have taken the delay into account.
2. The offender has been in custody since 12 July 2018 and has been bail refused since that date. While on remand, the offender served a three-month sentence from 5 September to 4 December 2018 for an unrelated matter of goods in custody. That sentence was imposed by the Wollongong Local Court on 13 March 2019. The criminality of the present case swamps the criminality of that minor offence of dishonesty. Taking into account the principle of totality, I propose to back-date the sentence to commence on 12 August 2018.

Synthesis and application of discount

1. Synthesising these various factors, I have concluded that the appropriate starting point for the murder of Mr Costello is 22 years' imprisonment.
2. Applying the discount of 5% under s 22A of the Crimes (Sentencing Procedure) Act (and rounding down) the total sentence will be 20 years and 10 months.
3. There was no suggestion that special circumstances exist that would justify an adjustment to the ratio between the head sentence and the non-parole period. Accordingly, again rounding down the numbers into years and months, the non-parole period will be 15 years and 7 months.

Sentence

1. Matthew Henry Spinks, for the murder of Nathan Costello you are convicted and sentenced to a non-parole period of 15 years and 7 months commencing on 12 August 2018 and expiring on 11 March 2034.
2. There will be a balance of term of 5 years and 3 months expiring on 11 June 2039.
3. You will be eligible for release on parole at the expiration of the non-parole period and I recommend you be released on or around that date.
4. Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) I am required to warn you that the Act applies to the offence of murder and I direct your lawyers to explain the possible implications of that when you come to the end of your sentence.

Endnotes

1. Tcpt, 08/02/2021, p 263.
2. Tcpt, 11/02/2021, pp 395-8.
3. Tcpt, 11/02/2021, pp 396-7.
4. Tcpt, 11/02/2021, p 465.
5. Tcpt, 04/02/2021, p 191.
6. Tcpt, 08/02/2021, p 321.
7. Tcpt, 11/02/2021, pp 445-6.
8. Tcpt, 16/02/2021, p 33 (Summing Up).
9. Tcpt, 16/02/2021, p 27 (Summing Up).
10. Tcpt, 16/02/2021, p 49 (Summing Up).
11. Tcpt, 16/02/2021, p 51 (Summing Up).
12. Tcpt, 16/02/2021, p 53 (Summing Up).
13. MFI S2 (Offender's Written Submissions on Sentence), [10].
14. Tcpt, 04/02/2021, pp 149 and 159.
15. Tcpt, 11/02/2021, pp 418-9.
16. Tcpt, 03/02/2021, pp 124-5.
17. Tcpt, 04/02/2021, pp 145-6.
18. Tcpt, 04/02/2021, p 158.
19. See, for example, Tcpt, 11/02/2021, pp 389-90.
20. Tcpt, 11/02/2021, p 457.
21. Tcpt, 11/02/2021, p 469.
22. See MFI S2 (Offender's Written Submissions on Sentence).
23. Tcpt, 11/02/2021, pp 434-435.
24. Exhibit Z, p 2.
25. Exhibit S2.
26. Crimes (Sentencing Procedure) Act 1999 (NSW), s 28.
27. Tcpt, 12/05/2021, p 16 (Sentence Hearing). 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: 10 June 2021