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[2025] NSWSC 889
General information, not legal advice.
Supreme Court of NSW
2025-08-08
Hamill J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: R v Symons, McDonald & Robertson [2025] NSWSC 889
Hearing dates: 05 August 2025
Date of orders: 08 August 2025
Decision date: 08 August 2025
Jurisdiction: Common Law
Before: Hamill J
Decision: (1) Beau Andrew McDonald is sentenced to a term of imprisonment of 6½ years commencing on 10 January 2019 and expiring on 9 July 2025.
(2) Adam David Symons is sentenced to a non-parole period of 5 years and 6 months commencing on 23 April 2018 and expiring on 22 October 2023. There will be a balance of term of 2 years and 9 months which will expire on 22 July 2026.
(3) Guy Robertson is sentenced to a non-parole period of 6 years commencing on 3 July 2018 and expiring on 2 July 2024. There will be a balance of term of 3 years expiring on 2 July 2027.
(4) See further orders and directions at [175].
Catchwords: CRIMINAL LAW – sentencing – manslaughter by unlawful and dangerous act – where offenders convicted at trial of murder – where appeal against conviction allowed – where plea of guilty accepted many years after offer – impact on victim’s family – where delay failed all participants – all parties buffeted by system – considerations relevant to sentence – joint attack – individual actions – where offence committed over 30 seconds but planning for hours or days – offenders employed as muscle – relevance of gang membership – brutal assault – parity with co-offender sentenced for manslaughter and part of assault – due proportion between sentencing – prospects of rehabilitation – relevance of exposure of offenders to violence and drug use in childhood
CRIMINAL LAW – sentencing – parole – lengthy delay – where offenders on remand for longer than non-parole period – where no occasion for the parole board to consider parole – where total sentence exceeds period on remand – where offenders on strict bail and compliant – whether offenders required to re-enter custody – whether parole can be ordered while offenders at liberty on bail – separation of powers – judicial function in sentencing – executive function to grant parole – inappropriate for court to communicate with Parole Authority – recommendations made
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), ss 134, 135, 137, 137B, 140, 141A, 160
Crimes (Administration of Sentences) Regulation 2014 (NSW), regs 222, 223
Crimes (High Risk Offenders) Act 2006 (NSW), s 5I
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 21A(3)(g), 21A(3)(h), 21A(3)(i), 30E(3), 44, 45, 47(1), 47(2), 47(3)
Cases Cited: Bonett v R [2013] NSWCCA 234
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Crane v R [2024] NSWCCA 112
Crane v R [2025] NSWCCA 93
La v R [2021] NSWCCA 136
Lavender v R [2006] NSWCCA 24
Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
McIntosh v R [2015] NSWCCA 184
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Aouli [2011] NSWSC 1393
R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535
R v Carroll (2010) 77 NSWLR 45; [2010] NSWCCA 55
R v Cartwright (1989) 17 NSWLR 243
R v Crane & Ors [2022] NSWSC 1545
R v Eastway (Court of Criminal Appeal (NSW), 19 May 1992, unrep)
R v Hawi [2015] NSWSC 206
R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361
R v Oinonen [1999] NSWCCA 310
R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253
R v Serratore [2000] NSWSC 696
R v Taleb (No 5) (Sentence) [2019] NSWSC 720
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Robertson v R [2024] NSWCCA 99
Sumpton v R [2016] NSWCCA 162
Symons v R; McDonald v R [2024] NSWCCA 212
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
Waterstone v R [2020] NSWCCA 117
Wiggins v R [2010] NSWCCA 30
Texts Cited: N/A
Category: Principal judgment
Parties: Rex (Prosecution)
Adam David Symons (Defendant)
Beau Andrew McDonald (Defendant)
Guy Robertson (Defendant)
Representation: Counsel:
F Gray (Rex)
J Trevallion SC (Symons)
T Hughes (McDonald)
C Wasley (Robertson)
Solicitors:
Office of the Director of Public Prosecutions (Rex)
Jamieson Criminal Law (Symons)
SANS Law (McDonald)
Newton’s Law (Robertson)
File Number(s): 2017/329279
2017/386819
2017/387058
Publication restriction: N/A
On 5 April 2017, Clint David Starkey received fatal head injuries in a callous assault committed by four men, including the offenders (Adam Symons, Beau McDonald and Guy Robertson) at the Caltex Service Station at Peats Ridge.
More than eight years later, after the twists and turns of the criminal law processes have buffeted the participants to the litigation, Mr Starkey’s family seek closure and justice. For that reason – as well as the fact that the three men who are to be sentenced for a second time, and for a different offence, deserve to know their fate – I heard evidence on Tuesday this week and will impose sentence today. I hope that this will provide the family with some form of closure; I am not sure that it will, but at least the criminal proceedings will finally have reached conclusion. I doubt the family will feel any real sense of justice.
Clint Starkey’s parents, Lorraine and David, prepared a victim impact statement for the purpose of sentencing in 2022. They enjoyed a very close relationship with their son. Clint lived on his parent’s property, and they spoke every day. His parents described the pain of his absence, which they feel not only on special occasions such as birthdays and each Christmas, but in everyday moments: their daily conversations, family picnics, dinners and lunches out, and fishing trips on long weekends. Mr and Mrs Starkey explained that Clint was loved by all the children in the family and is particularly missed by his nephew with whom he spent a lot of time. Their grief is indescribable, and the death of their son is something they and their family will have to live with for the rest of their lives.
Mr Starkey’s sister Stacey prepared a victim impact statement more recently which spoke not only for herself, but also on behalf of her husband Tony and their two children. She described Mr Starkey’s death as “the hardest thing we have been through” and that “words just can’t seem to explain it”. Stacey spoke of the pain felt by the whole family resulting from Clint’s absence and she said that her two sons miss him dearly.
She explained that all Clint really wanted was a boy of his own and that his killing means he will never experience the joy of raising his child. Stacey expressed her anger and frustration at the offenders’ release from custody. She described the heartbreak of discovering that after 8 years the family would have to relive the events surrounding Mr Starkey’s death following the offenders’ successful appeals. She expressed her frustration at the final outcome, that is the acceptance of the plea of guilty to manslaughter. Stacey and her family hope that they will now, finally, be able to obtain closure and justice.
I thank the family members for providing these insights into the impact of this terrible crime upon each of them. I express my deep sympathy. Nothing I do in sentencing the offenders today will seem like adequate punishment, let alone like justice, at least from their perspective. There is nothing I can say in defence of a system that permits such a delay to the conclusion of this aspect of the ordeal of losing a son, a brother or an uncle. I hope the case ending today will help. I am not sure that it will.
On the Prosecutor’s application, and in considering the appropriate punishment, I have taken into account the family’s suffering insofar as it is “an aspect of the harm done to the community”. [1] All human life is sacred and all people are equal before the law. Every homicide leaves behind victims and friends who try, for the rest of their lives, to make sense of what happened. While this is reflected in the penalties provided under the law, much more lenient sentences are imposed for manslaughter than are imposed for murder.
As I said at the start, there has been a delay of more than eight years between the commission of the offence and today’s sentencing. It is appropriate that I explain the background and the reasons for the delay.
Mr Starkey was assaulted on 5 April 2017 and did not recover from his injuries. He died in hospital on 12 June 2017.
The four men who bashed Mr Starkey were Adam Symons, Beau McDonald, Guy Robertson and Jake McDonough and each was charged with murder. Two brothers, Colin and James Crane, were also charged with murder on the basis that they were accessories before the fact. The prosecution’s case at the original trial was that the Crane brothers arranged for the four assailants to bash the victim because of a dispute Colin Crane had with him. A seventh man, Simon Rodden, was also charged with murder on the basis that he drove Mr Starkey to the scene.
The seven men went to trial before Fagan J and a jury in 2022. The three offenders and the Crane brothers were each found guilty of murder. Jake McDonough was found not guilty of murder but guilty of manslaughter. Mr Rodden was found not guilty altogether.
Justice Fagan sentenced the six men on 11 November 2022: R v Crane & Ors [2022] NSWSC 1545. His Honour sentenced Jake McDonough, for manslaughter, to imprisonment for 7½ years with a non-parole period of 5 years. The three current offenders were sentenced, for murder, to the following terms of imprisonment:
Adam Symons to 18 years with a non-parole period of 12 years.
Beau McDonald to 17½ years with a non-parole period of 11 ½ years.
Guy Robertson to 19 years with a non-parole period of 13 years.
Five of the six convictions were quashed on appeal. The appeal proceedings were as follows:
Colin Crane – on 3 July 2024, the Court of Criminal Appeal quashed the conviction and entered a verdict of acquittal: Crane v R [2024] NSWCCA 112.
Guy Robertson – on 3 July 2024, the Court of Criminal Appeal (Harrison CJ at CL and Dhanji J, Cavanagh J dissenting) quashed the conviction and ordered a re-trial: Robertson v R [2024] NSWCCA 99.
Adam Symons and Beau McDonald – on 29 November 2024, the Court of Criminal Appeal (Kirk JA, Dhanji and Yehia JJ) quashed the convictions and ordered a re-trial: Symons v R; McDonald v R [2024] NSWCCA 212.
James Crane – on 18 June 2025, the Court of Criminal Appeal quashed the conviction and entered a verdict of acquittal: Crane v R [2025] NSWCCA 93.
The matter then came before the arraignments list Judge (then Wilson J) in the second half of 2024, and a trial date was set for Monday 16 June 2025. It was anticipated that a jury would be empanelled on Tuesday 17 June 2025. Because of the evacuation of the Downing Centre, the jury panel could not be arranged and the matter was adjourned over the coming days until a jury panel was organised for Tuesday 24 June 2025. However, shortly before the empanelment process commenced, the parties advised the Court that the case may have resolved.
The Prosecutor and each offender signed a document entitled “Agreed Facts”.
CCTV from the Caltex Service Station was also tendered along with two tables setting out what the prosecution alleges can be observed in the footage. The descriptions in the tables are not part of the agreed facts, but I accept that they are generally accurate. The kinds of differences pointed to by counsel are not of great moment in an assessment of the criminality involved in the offence. Whether he punched Mr Starkey three times to the body or three times to the left side of the head pales into insignificance when it is clear, and agreed in the signed facts document, that he kicked Mr Starkey repeatedly in his upper body, walked away, and returned a few seconds later to stomp on his head four times while Mr Starkey was helpless on the ground.
Part of the agreed facts includes telephone call charge records demonstrating a flurry of communications between the offenders and others in the hours leading up to the assault. In each case, there is also a document relating to the membership of each offender in the “Rebels Outlaw Motorcycle Gang” (“Rebels”). There is an inference, which I accept is the only reasonable one taking account of all of the known primary facts, that the three offenders became involved in this offence because of their association with the Rebels.
Mr Starkey lived on Waratah Road, Mangrove Mountain and was close friends with another local man, Simon Rodden. Colin Crane lived at the other end of the same street. James Crane lived in Peats Ridge at the rear of the Caltex Service Station where the assault occurred. There had been ongoing conflict between Mr Starkey and Colin Crane for at least 12 months.
That conflict led to a heated exchange near the Mangrove Mountain General Store at about 4:00pm on 3 April 2017. People heard the two men shouting at each other. Mr Starkey got into his vehicle and drove it in the direction of Colin Crane’s vehicle several times, as if he was going to collide with it. Mr Rodden was in the vehicle with the deceased and Colin Crane had his six-year-old daughter with him. Colin Crane shouted at Mr Starkey “you’re a bitch” and “I will get you, you fucking dog cunt”. Between 4:30pm and 5:30pm, there were a number of telephone communications between Colin Crane and others including three of the four men who eventually committed the manslaughter of Mr Starkey. When he got home, Colin Crane told his partner that Mr Starkey had tried to ram his car with the little girl in it. Clint Starkey told his mother that he had been in an argument with Colin Crane. At about 6:00pm Colin Crane returned to the General Store and met with about six men including Guy Robertson and Adam Symons. Colin Crane and some other men went to the Starkey residence and demanded to know the whereabouts of the deceased. The next morning, 4 April 2017, Colin Crane continued to look for the deceased asking various people where he was. He told one person at the General Store “I’m gonna kill him.”
On the morning of 5 April 2017 there were communications between various people including Adam Symons, Jake McDonough, Guy Robertson and Colin and James Crane. James Crane contacted Simon Rodden by text message who in turn had several telephone calls with Clint Starkey. At about 9:00pm Mr Starkey and Mr Rodden attended the Mangrove Mountain Memorial Club. At the Club there was a verbal confrontation between the deceased and Colin Crane’s partner (Nicole Tedder) who worked at the Club. Ms Tedder asked the deceased “what the fuck is this shit that I hear you threatening me and my kids”. Mr Starkey told her:
“Oh does it look like I care. I don’t care if someone wants to threaten to fight me I’m just going to take out their whole family I don’t care. I’ll do 10 times worse that’s why I’ll threaten your whole family if someone threatens to fight me.”
The argument went on, with Mr Starkey repeating his threats. An employee of the Club called Colin Crane at about 9:20pm and told him about the confrontation. Over the next twenty minutes there were several communications between Colin Crane and his brother James and multiple attempts at contact. At the same time James Crane was on the telephone to Simon Rodden. At 9:43pm James Crane, Guy Robertson and Jake McDonough were all at the KFC in Woy Woy. At 9:53pm Mr Starkey and Mr Rodden left the Memorial Club. Colin Crane was at home and spoke to his partner several times. He told another man “I’m going to go fucking find him and kill him” and told his mother he was going to the Club.
Colin Crane drove towards the Club but turned off in the direction of Peats Ridge Road. At about the same time Adam Symons and Beau McDonald, in a red Commodore, and Guy Robertson and Jake McDonough, in a metallic Holden, drove in convoy towards Mangrove Mountain passing the Coles Express Service Station at Kariong at 9:54pm. At the same time, Simon Rodden sent James Crane a text message saying “going to servo now with child” and, a minute later, Mr Rodden called the attendant at the Caltex Service Station at Peats Ridge asking that she keep the business open. He left the Memorial Club at 9:55pm. Colin Crane called Adam Symons just after 10:00pm.
Mr Rodden and Mr Starkey arrived at the Caltex Service Station at 10:00pm. As arranged, the station remained open and the two men went into the store. They left the store at 10:04pm, the attendant closed the business and the two men got into the car with Mr Rodden in the driver’s seat and Mr Starkey in the passenger’s seat.
The CCTV footage shows what happened once the four assailants arrived at the location. The tables included in the prosecution bundle provided two “versions” of the events depicted, presumably based on a police officer’s observations of the CCTV footage. The actions described are the same but one table presents the events in chronological order while the other describes the actions of each offender. There are limited disputes between the parties as to what is depicted and how it is described in the tables. The agreed facts include a less detailed and somewhat more benign description of the events. The assault took place over a period of thirty to forty seconds. It commenced at 10:07:20pm when Mr Symons approached the car, dragged Mr Starkey from the passenger side seat and threw him onto the driveway. It ended at 10:07:51pm when Mr Robertson stomped on the victim’s head as he lay motionless and defenceless.
In that thirty second period, each of the four assailants punched and/or kicked and/or stomped on Mr Starkey repeatedly. They acted as a group of four for about 10-15 seconds until Mr McDonough backed away from the deceased. The assault continued for approximately a further 15-20 seconds with the three current offenders continuing the assault. The actions of Mr Robertson in the last 10 seconds are the most shocking. In that period he stomped on the victim’s head and neck twice, walked away briefly as Mr Symons and Mr McDonald continued to kick and knee the victim and then returned to deliver an extremely hard stomp to the head. The CCTV footage shows the victim’s head bounce off the concrete driveway. It is horrifying to watch.
During the frenzied thirty second attack, each of the four offenders delivered multiple blows to the prone victim who never attempted to respond other than by attempting to cover himself from the onslaught.
While Mr McDonough backed away first, he delivered kicks to the victim’s lower body and to his upper torso and head. The violence employed by Mr Robertson was easily the most extreme and the actions of Mr Symons, who on two occasions jumped into the air to deliver a very hard knee to the rib and back area of Mr Starkey, were also shocking. Mr McDonald’s individual actions were less extreme with most of his blows or kicks delivered to the lower body. There was a dispute about whether he “stomped” on Mr Starkey but my interpretation of the video was that it was more in the nature of kicking out with the bottom of his foot than it was a stomp. There is a marked difference between what he did and what Mr Robertson did in the final moments of the assault. Mr Robertson’s actions were clearly and properly described as stomping.
While it is possible to rank in order of brutality the individual actions of the offenders, they were each involved in a group assault on a single and defenceless victim. They are legally responsible for one another’s actions. Even so, there are differences in the objective gravity of their individual offending, and this must be reflected in the sentences imposed on them. In terms of the three offenders before the Court, this was reflected in the sentences imposed by Fagan J upon their convictions for murder. In terms of a comparison with Mr McDonough, I assess his conduct in the assault as slightly less serious than that of Mr McDonald, but there are countervailing considerations to which I will later return.
The four offenders left the scene in their cars and Mr Rodden called James Crane asking for assistance in moving Mr Starkey from where he was lying, clearly seriously injured, in the driveway of the petrol station. He was eventually taken to Gosford Hospital and admitted to the emergency department. He arrived about an hour after the assault.
Clint Starkey died on 12 June 2017.
A forensic pathologist, Dr Cala, said the cause of death was the “complications of blunt force head injury”. He said there was extensive old subdural haemorrhages and evidence of brainstem haemorrhages resulting in trauma to the brain and a reduced level of oxygen in the blood. He said the delay in obtaining treatment was a “significant factor in his death” because the delay would have increased the effects of blood loss making hypoxic brain damage far more likely. He agreed in cross-examination at the murder trial in 2022 that various injuries to the limbs and lower body were unlikely to have caused his death.
Mr McDonald was 24 years old at the time. He was interviewed by the police on 31 October 2017 and told lies including that he was not involved. He was arrested and charged on 21 December 2017.
Mr Symons was 36 years old at the time of the incident. His DNA was located on the victim’s clothing. He was arrested and charged on 31 October 2017.
Mr Robertson was aged 28 years at the time. There was also DNA evidence connecting him to the offence. He was arrested and charged on 21 December 2017.
Objectively, this was an extremely serious case of manslaughter by unlawful and dangerous act. The assault was relatively brief, but the brutality and the ferocity of the attack was such that the victim was disabled almost immediately and was on the ground for the entire period while kicks and punches were rained upon him unrelentingly.
I am satisfied beyond reasonable doubt that the assault was planned and that the offenders were recruited because of their association with the Rebels. On the facts of the present proceedings – and while noting that Mr Rodden was acquitted outright at his trial – the victim was taken to the locality of the beating like a lamb to the slaughter. It was no coincidence that the two cars with the four assailants turned up just a few minutes after the deceased and Mr Rodden arrived at the Caltex Service Station.
There was ample evidence of communications with the Crane brothers, meetings at various locations and notifications from Mr Rodden as to where the victim was at various times and where he was expected to be. I am satisfied that the offence was part of a planned or organised criminal activity but note three things. First, that the planning was not particularly sophisticated. Secondly, it was not a case where the crime was committed in the course of the ordinary activities of a criminal syndicate. Thirdly, there is no evidence that Mr McDonald was involved in the planning until a very late stage, if at all. However, there is no doubt that he knew what was afoot when he drove with Mr Symons to the scene of the killing.
This was a premeditated assault which makes it more serious than many cases where offenders are sentenced for manslaughter after becoming engaged in a spontaneous violent confrontation.
While Mr Starkey’s conduct in the days leading up to the assault was not admirable, noting in particular that he accelerated his car in the direction of Colin Crane and a 6-year-old child, he had done nothing to provoke the four offenders, who simply became involved as the muscle drafted to inflict the punishment on Mr Crane’s behalf.
While there were no weapons employed, the Prosecutor was correct to submit they were not needed because Mr Starkey was ambushed, defenceless and outnumbered four to one. The conduct of the offenders – and that of Mr Robertson and Mr Symons in particular – is correctly described as merciless, brutal and cowardly. The blows, kicks and stomps to the victim’s head were objectively very dangerous. The blows to the torso and lower body were less so, but they put or kept the victim in his vulnerable position on the ground.
Because this crime was committed as part of the joint criminal enterprise, each of these offenders, as well as Mr McDonough, are responsible for the acts of the others. Even so, it is appropriate to distinguish an assessment of their objective criminality based on their individual acts.
Mr Symons is now 44 years of age. He is a middle child and has two sisters. His childhood was marred by exposure to domestic violence perpetrated by his father who was “a violent drunk who often took his frustrations out on [his mother] and Mr Symons”. Mr Symons was “repeatedly physically abused by his father as a young child”. His parents separated when he was around 3 or 4 years old, and his mother struggled to cope financially as a single parent. Following his parents’ separation, Mr Symons and his sisters visited his father every second weekend and one night a week for a period of about six months. During that time Mr Symons experienced physical violence at the hands of his father who would physically beat him around the head. Another matter of a sensitive nature also occurred but the offender has asked that this not be referred to explicitly, and I will respect that.
On the other hand, Mr Symons described having a close and loving relationship with his mother throughout his childhood, and she continues to support him. He also enjoys the support of his two sisters, and he says he has reconnected with his father and their relationship is slowly improving.
Mr Symons was a poor student and was eventually diagnosed with attention-deficit hyperactivity disorder (“ADHD”) at around the age of 10 or 11. He was initially treated with medication which improved his concentration and reduced his hyperactivity. However, he stopped taking the medication because he was embarrassed. He was bullied at school because he wore second-hand clothes and was hyperactive. He had difficulties making friends, was often in trouble and was suspended on several occasions. He dropped out of school in Year 9 to pursue a stonemasonry apprenticeship at TAFE.
Mr Symons has a reasonably good employment history, having worked in various positions as a stonemason, and been employed in landscaping and on a cattle station. Two years before his incarceration he commenced work with David Campbell Building, doing labouring jobs and driving trucks and excavators. While in custody, Mr Symons said he had “a job in the working pod” and that he had completed a Certificate III in Community Services. Upon his release from custody, he returned to work with David Campbell Building and is currently working 6 days a week doing 8-hour shifts.
Mr Symons has had two serious relationships in his life. He had a daughter with his ex-partner Emma, with whom he remains on good terms. He met his current partner Lauren in 2014 and they have a son together. His son has Tourette’s Syndrome and some form of anxiety disorder. While on bail he has been residing with Lauren, and described their relationship as “loving and supportive”. He said his two children enjoy spending time together, and that “his main joy in life was engaging in outdoor activities with his children”.
Mr Symons’ criminal history is not extensive and he has no previous offences of violence. However, he was sentenced to six weeks imprisonment for an offence of negligent driving occasioning grievous bodily harm in 2017. In 1998 he was fined for offensive language and offensive behaviour in or near a public place or school and for resisting arrest. In 2002 he was fined $300 for cultivating a prohibited plant.
He has a pretty bad driving record including a mid-range PCA and driving with a suspended licence in 2000. He was sentenced to a 100-hour community service order for driving while disqualified in 2003. However, there was then an 11-year gap in his record before he was fined $300 in 2014 for driving with the presence of an illicit drug in his blood and was convicted of the negligent driving offence in 2017 as noted above.
Mr Symons reported a history of binge drinking which commenced at around the time he became a member of the Rebels. He started using cocaine at 32 years of age after a fellow gang member offered it to him, and says he was using 2-3 grams per weekend at the peak of his addiction. However, Mr Symons stated that he has not used drugs since his incarceration and currently only has 1-2 beers a fortnight.
Mr Symons reportedly joined the Rebels in 2012 after reconnecting with an old friend from high school who was a member of the gang. Mr Symons said he became a member “because he was bored and socially isolated” while he was recovering from a motorcycle accident. He confirmed that he was “a patched member” but denied that he had any particular role. At the sentencing hearing, the prosecution relied on an inmate profile document together with the “expert” statement of Detective Groenewegen to submit that Mr Symons’ status within the group was “Sergeant-at-arms”. This was disputed by Mr Symons. I am unable to resolve that factual dispute but it is not a matter of great moment. He reportedly left the Rebels at around the time he entered custody. He said joining the gang was “his biggest regret in life” and there is no indication of him wanting to return to the club.
Mr Symons reported that he was diagnosed with ADHD when he was 10 or 11 years of age. He is currently prescribed Atomoxetine which has allowed him to manage his symptoms which include being easily distracted, struggling to sit still and having difficulty with making decisions. Mr Symons reported that he has not been diagnosed with a major mental disorder, but did feel depressed when he was incarcerated. Mr McLean described this as “a normative stress response to his custodial setting”.
Mr McLean did not conduct a formal mental status examination as the assessment was not conducted face to face, but he did perform the Post Traumatic Stress Disorder (“PTSD”) Checklist for DSM-5 in the context of the sensitive matter to which I referred earlier. Mr Symons did not meet the criteria to be diagnosed with PTSD.
Mr McLean noted that at the time of the offending, Mr Symons met the criteria for ADHD and stimulant use disorder. While individuals with ADHD often experience emotional regulation difficulties, Mr McLean was not of the opinion that this contributed to the present offence. Further, it was noted that there does not appear to be a nexus between his cocaine use disorder and the index offence.
Nothing in that mental health history reduces Mr Symons moral culpability for this offence. The history of his childhood dysfunction does so, but to a limited degree.
Mr Symons has demonstrated remorse and I have concluded he has quite good prospects of rehabilitation.
He told Mr McLean that he felt “terrible” about the incident. When asked about it, he said, “I hate it. I put my family in his family’s shoes. He wasn’t a nice person, but everyone comes good. He didn’t deserve to die”. When asked about the impact of the offending on the deceased’s family, he said “they lost a son, and he had a daughter. So, she has now had to grow up without a dad. It’s destroyed a lot of lives”. He also said if given the chance, he would tell the deceased that he is sorry and wishes there was more time to think. He said “I just wish I was never there. I drove in there. Why didn’t I keep driving?”. Mr Symons provided a letter of apology dated 30 July 2025 in which he expressed remorse for his actions and displayed empathy for Mr Starkey’s family.
Mr Symons’ mother also provided a letter in which she said, “from the outset Adam acknowledged his involvement in the matter and has expressed his sorrow for the man who passed away and the family of the deceased”.
Mr McLean noted that Mr Symons’ “insight regarding the offending and its consequences was good”. Mr McLean performed the Violence Risk Appraisal Guide to assess Mr Symons’ risk of reoffending. Mr Symons was placed in the range whereby he demonstrated the same recidivism rate for violent offenders in the middle of the risk distribution. In other words, the risk of recidivism is the same as the typical violent offender.
Mr McLean noted that Mr Symons’ prognosis regarding his stimulant use disorder is good, and he is not experiencing cravings. He has also completed the EQUIPS addiction program, reconnected with his long-standing employer, works full time and regularly engages in pro-social activities with his children. Mr Symons was baptised in custody and now attends mass at a local church each week.
Mr McLean said there was no indication that Mr Symons endorsed pro-criminal attitudes and that the above protective factors suggest that it is likely that Mr Symons will avoid further offending.
While in custody Mr Symons was reported for only one infraction for unlawfully using a gaol phone in March 2017. There is also an entry in his classification history details that he was placed in segregation for his alleged involvement in contraband in November 2022. However, it is noted that there was “nil evidence provided”. Mr Symons’ younger sister, Kristell, noted in her letter that when she visited Mr Symons in custody, “the guards [told her] how thankful they are for Adam being respectful to them”.
Following his successful conviction appeal, Mr Symons has been on bail since November 2024 on stringent conditions. This includes a curfew, reporting to police each day, and restrictions on his use of his mobile telephone. He has complied with those conditions.
Mr McDonald is now 33 years of age. He was the only child of his parents’ union but has five half-siblings. He recalls spending a lot of his early childhood hiding because of his parents’ arguments, which sometimes escalated into physical violence. His parents separated when he was four years old. He had sporadic contact with his father until he was six years of age when Mr McDonald refused to continue the visits with his father because his father forced him to stay in his room while his half-siblings were allowed to play together. Mr McDonald was bullied in primary school and did not have many friends. However, he used sports as an outlet and enjoyed a close relationship with his mother. He and his mother have remained close, and his relationship with his father has improved since the offender was released from custody in November 2024.
Mr McDonald struggled in school. He was easily distracted, and his comprehension was poor. Despite this, he completed his Year 10 Certificate and has a positive employment history. He worked part-time throughout high school, starting with the paper run at the age of 12 and working at McDonalds from the age of 13 where he was able to work his way up to a manager position. After high school Mr McDonald undertook various apprenticeships in landscaping, childcare and plumbing, and became a volunteer firefighter. At 23 he commenced his own maintenance business for a real estate agency which he maintained for about 12 months until he was involved in a serious accident. Following his recovery from the injuries, he commenced work as a concreter with Mark Gilligan where he remained employed until his arrest in December 2017. During his time in custody, Mr McDonald held various sweeper positions, which Mr Hughes described as a “trusted” one within the gaol system. Upon his release in November 2024, he returned to employment with Mr Gilligan as a concreting subcontractor for three months before starting his own concreting business. The business now employs five people and generates a reasonable income.
Mr McDonald has had two significant relationships in his life. He commenced a relationship with Ms Martyn when he was 18 years old. They were together for nine years and have two children. Their relationship broke down following his arrest and her alleged infidelity while he was in custody. The breakdown of the relationship led to a reduction in his contact with the children, and he relied on Ms Martyn’s brother to facilitate visits. After he was released to bail in November 2021, Mr McDonald and Ms Martyn arranged for the children to visit every second weekend and for a week during the school holidays. However, following his conviction and sentence, Ms Martyn began to limit his contact with the children. Family Court proceedings were commenced but they have not been resolved.
In November 2021, Mr McDonald commenced a relationship with his current partner Ms Clarke. Ms Clarke suffered a miscarriage in December 2021, and Mr McDonald proposed to her on New Year’s Eve. Ms Clarke became pregnant again in March 2022 and their first child was born after Mr McDonald had returned to custody. Ms Clarke purchased a land and house package in North Rothbury, and she and the child moved into the home in September 2024. Upon his release from custody, Mr McDonald moved into that home. He describes Ms Clarke as “a great support to him, his mother and his children”.
Mr McDonald has a very limited criminal history, with only one prior offence of possessing housebreaking implements which was committed in 2012, and for which he was fined $500. His lack of a significant criminal record is a mitigating factor.
However, he admitted he was using illegal drugs prior to his arrest in 2017. He began experimenting with ecstasy from about the age of 17. At age 24 he began smoking cannabis as a form of pain relief after his accident. He smoked 1-2 joints “every second day” until his arrest, but has been abstinent since.
The evidence suggests Mr McDonald joined the Rebels in 2016 following the death of his brother-in-law. Mr McDonald considered him to be a father figure and described his death as “the biggest trauma of his life”. However, information from NSW Police indicates that Mr McDonald was a nominee member before December 2015 and was likely to have been a full member by that time. Mr McDonald described his motivation for joining the gang as “for brotherhood, to hang out and have friends”. He reportedly left the gang at “the end of 2018/start of 2019” and no longer has any contact with his former associates. He commenced laser tattoo removal of a gang related tattoo following his release from custody in November 2024.
In her original report dated 14 October 2022, Ms Cullen diagnosed Mr McDonald with early onset persistent depressive disorder (“PDD”), post-traumatic stress disorder (“PTSD”) and mild cannabis use disorder which was in remission at the time. Ms Cullen expressed the view that “Mr McDonald’s underlying PTSD (and depression) likely contributed to his decision making related to the index offence”. However, that opinion appeared to be related to, or based on, an assertion that Mr Starkey produced a gun at the scene, a suggestion made at the murder trial, but abandoned in the sentencing hearing.
I am unable to conclude on the balance of probabilities that Mr McDonald had any relevant mental health condition that reduced his moral culpability for his commission of the offence.
Like other offenders in custody during the COVID-19 pandemic, Mr McDonald experienced very onerous conditions of incarceration. This included repeated lockdowns, isolation and a lack of personal contact with his children and other members of his family.
He also struggled with health conditions including high blood pressure which, despite doctors’ recommendations, was not being checked regularly as of October 2021, and he was not being provided with a special diet to accommodate those conditions.
While in custody, one of Mr McDonald’s grandparents with whom he was very close died and he was unable to attend the funeral. (Ms Cullen says it was his grandfather, whereas his partner said in her affidavit it was his grandmother). Mr McDonald also missed the birth of his daughter and attempts to create a bond with the child through fortnightly gaol visits proved a costly exercise requiring the family to pay for overnight accommodation near the gaol.
I accept that Mr McDonald has expressed genuine remorse for his involvement in the offence and displayed some insight into the impacts of his offending. He told Ms Cullen, “I understand someone lost their life and no-one deserves that… seeing how broken his mum was, I can’t explain how sorry I am for that. I wanted to give his mum a hug”.
I accept Mr Hughes’ submission that Mr McDonald has been a “model prisoner”. He has no reported gaol infractions. Corrective services officers have described him as polite, cooperative, hardworking, trusted, and a positive influence on other inmates. One incident provided significant insight into his prospects of rehabilitation, and perhaps his character more generally, when he intervened to protect a corrective services officer who was being assaulted by another inmate. A case note on 24 May 2018 reported:
“Inmate McDONALD went to the aide of an officer being assaulted in M21 yesterday. The officer was struck from behind and the inmate was lining up to kick the officer in the head when McDONALD jumped in and grabbed the inmate stopping the assault. He then went to the aide of the officer until help arrived. The officer received a broken jaw in the assault and would have received far worse injuries had McDONALD not intervened. He deserves recognition for his response.”
While in custody, Mr McDonald completed Certificates III and IV in Personal Fitness and commenced a Certificate II in Hospitality. He also completed a Certificate III in Centre Hygiene, a Certificate in Forensic Cleaning, a Certificate in First Aid, and a Certificate in Mood Management. He also painted murals, hopscotch, snakes and ladders and a handball court for visiting children, and was involved in the “Shine for Kids” charity.
As I said earlier, since he was released on bail, Mr McDonald maintained consistent employment and his business is going well. He has moved in with his partner and their child, he has eschewed his connection with the Rebels and appears to be “living a law‑abiding and pro‑social life”. He has taken steps to address his mental health issues, attending upon a general practitioner who has provided him with a mental health treatment plan and a referral to a psychologist. In 2025, Mr McDonald’s mother was diagnosed with dementia and also suffers from poor mobility and chronic back pain. Mr McDonald has provided significant support to his mother, visiting her every other day.
Ms Cullen assessed Mr McDonald as being a low risk of recidivism (mysteriously and statistically assessed at approximately 11.7%) and was of the opinion that he was “at low risk for (future) violence”. His letters of support suggest that his offending was out of character and that he is generally a “hardworking, family orientated man”.
I am satisfied on the balance of probabilities that Mr McDonald has excellent prospects of rehabilitation and is unlikely to offend again.
Mr McDonald was originally granted bail by Dhanji J on 28 October 2021 while his trial was pending. The conditions were stringent, including a house arrest condition, daily reporting, electronic monitoring, mobile ‘phone restrictions and surety conditions. Mr McDonald’s solicitor states that to the best of her knowledge there were no breaches of this bail.
Following his successful conviction appeal, Mr McDonald has been on bail since November 2024 on less stringent conditions, including a house arrest condition although he was permitted to work, daily reporting, more extensive mobile ‘phone restrictions, and a surety condition. He has complied with those conditions.
Mr Robertson is now 36 years of age. He experienced an unstable upbringing characterised by domestic violence, drug abuse and social deprivation. He lived in social housing with his two sisters and his parents who were unemployed and used cannabis regularly. His relationship with his parents was volatile. He was physically abused and emotionally neglected by his parents who were often aggressive and violent in the family home. Dr Sidhu was of the opinion that Mr Robertson “normalised” the aggressive behaviours, and they became entrenched patterns of dealing with conflict. Mr Robertson reported that his relationship with his parents improved when he was incarcerated for the first time.
Mr Robertson reported that he was sexually abused when he was 8 years old by a school teacher. This was not disclosed in previous assessments. However, his sister said in her affidavit that she was aware of the sexual abuse. Mr Robertson said he felt unsafe in the school environment as a result of the abuse, struggled to concentrate, participated in fights and was accused of bullying for which he was suspended in primary school. Mr Robertson was also suspended during high school and was expelled for “hitting a teacher with a stick” when he was 15 years of age. He was enrolled in a specialised support school in an attempt to manage his behavioural difficulties. However, he left without any certificates or qualifications just a few months later. Mr Robertson did not complete any further education until his most recent incarceration when he completed a Certificate IV in Fitness and his first year of a plumbing apprenticeship.
The Prosecutor submitted that the suggestion of sexual abuse should be given limited weight because of the belated disclosure. She also submitted that the evidence of Mr Roberston’s deprived background was inconsistent, but Ms Wasley submitted in reply that his incarceration led to positive changes in his family relationships.
It is difficult to make factual findings about the alleged sexual abuse but a delayed disclosure is not inconsistent with the abuse having occurred. I am inclined to accept that Mr Robertson was the victim of a sexual offence given the unchallenged evidence of his sister and Mr Robertson’s description of his response to the abuse. As to the family history, I see no real inconsistency and accept that the more recent improvement in the family dynamic are a positive factor. I am also satisfied that his exposure to violence and childhood dysfunction reduce his moral culpability to a limited extent. However, as will be seen, the same matters raise questions concerning his prospects of rehabilitation.
Mr Robertson was employed with his father “on and off” when he left school for a number of years. However, his longest period of employment was six months and he regularly relied on welfare support for financial stability. Mr Roberston worked in the furniture workshop during his most recent incarceration at the Macquarie Correctional Centre. He described this experience positively, noting that it provided him with structure and strengthened his motivation to improve himself. Mr Robertson wants to continue with his plumbing work in the future.
Mr Robertson began consuming alcohol at the age of 15 but has not consumed it regularly because it increases his anxiety. He reported that alcohol has not been a problem for him at any stage in his life. It was not a factor in the current charges.
Mr Robertson began using drugs at an early age. He described taking cannabis from “someone in the house” when he was just 7. However, he did not use it regularly until he was 23 years old when he was experiencing pain relating to two fractured cheekbones following an assault. He became addicted and was using “a couple of grams daily”. He stopped using when he found that, like alcohol, it caused him to become anxious. Mr Robertson regularly used ecstasy and speed on weekends when he was 18. This continued until he was 21, when his focus turned to health and fitness. However, following the death of his mother in 2017, his drug use escalated to cope with his grief. He was regularly using Valium, Xanax and Endone. Mr Robertson described being drug affected at the time of the present offence but did not believe it impacted on his behaviour.
Mr Robertson used buprenorphine when he was in custody, but this ceased once he had regular employment in gaol. He has used Valium since being released on bail, but particularly before attending court, to deal with his anxiety but reported that he has not used any other illegal substances.
I am satisfied that Mr Robertson’s childhood deprivation and his early exposure to drug abuse and violence diminished his moral culpability to a degree.
Mr Robertson reported experiencing symptoms of anxiety from childhood into his early adult years. He saw a doctor in relation to managing this when he was 22 years of age and was referred to a psychologist. However, he disengaged from counselling after a few sessions because he did not find it helpful. Mr Robertson still experiences difficulties with anxiety, which became worse when he was incarcerated. His anxiety has increased since he was granted bail and he says he would like to engage with a psychologist. Dr Sidhu expressed the opinion that “there is a risk that Mr Robertson was becoming institutionalised such that the custodial environment was more structured, and the community now feels overwhelming for him”.
Mr Robertson’s mother was diagnosed with cancer and died a few months before the killing of Mr Starkey. The offender told Dr Sidhu that he had a close relationship with his mother and described her as his “best friend”. Mr Robertson’s grandmother also died when he was incarcerated in 2018. He has a positive relationship with his father and sisters who remain supportive of him. He has lived with his family during the period he has been on bail.
Mr Robertson recently commenced a relationship with an old friend and she is said to be a positive influence. Ms Robertson says in her affidavit that Mr Robertson’s new partner “plays an active role in helping him maintain structure and accountability”.
Mr Robertson was reportedly a nominee member of the Rebels by October 2016 and possibly earlier. NSW Police suspect that Mr Robertson would have been a full member shortly before 31 October 2017. Mr Robertson reported that he ceased affiliation with the gang in 2022 because he has “matured” and “recognised that it is not helpful for him”.
Mr Robertson has a criminal history, including offences of violence. He was convicted of failing to leave premises, re-entering a premises, assaulting a police officer and resisting arrest in 2008. Those offences were dealt with by the imposition of fines and supervised bonds. More significantly, Mr Robertson was convicted of multiple counts of aggravated break and enter in 2011 and was sentenced to imprisonment. The longest sentence he had received before the period of almost seven years on remand which is for this offence, was 2 years and 3 months with a non-parole period of 9 months. Mr Robertson has also been convicted of relatively minor driving offences in 2016 and 2017 for which he was disqualified and fined. There were also drug and weapon offences in 2017 for which he received bonds.
A significant matter is that Mr Robertson was convicted of assaulting a law officer during his incarceration in 2022. He was convicted with no further penalty, no doubt because of his incarceration for the homicide of Mr Starkey.
Mr Robertson was in custody for the whole of the COVID-19 pandemic, making his experience in gaol more onerous. He was also on remand at Lithgow Correctional Centre during the bushfires of 2019 which he described as “terrifying”. Mr Robertson reported being assaulted in custody on 15 December 2022 because he had ended his affiliation with the Rebels Outlaw Motorcycle Gang.
Mr Robertson has committed a number of gaol infractions during the remand period. In 2020, the custodial history records that he threw an article, possessed a drug, participated in a riot, failed to comply with a correctional centre routine and possessed an offensive weapon. In 2022, Mr Robertson disobeyed a direction, engaged in intimidating behaviour and possessed an offensive weapon. Case notes (part of Ex R-1) referred to two other incidents of violence which did not result in “misconduct charges” but one of which resulted in a criminal prosecution. I referred to that incident earlier and will return to the facts of the matter as it is relevant to an assessment of Mr Robertson’s prospects of rehabilitation.
I would describe the evidence of Mr Robertson’s remorse and insight as limited and contradictory. He addressed a letter to Clint Starkey’s parents accepting responsibility and apologising for their son’s death. Rochelle Robertson said in her affidavits that Mr Robertson “has told me how he is sorry for the victim and his family”, and “he felt very sad for Clint’s family as he knows what it is like to lose someone”. On the other hand, the OIMS note dated 5 December 2023 reported that “Guy shows no remorse for the victim of his crimes and denies that his actions caused his death”. His plea of guilty to manslaughter also provides some evidence of remorse although the extent to which it does so, in light of the evidence available to the prosecution, is difficult to divine.
The prosecution submitted that Mr Robertson’s conduct in custody would lead to a guarded assessment of his prospects of rehabilitation in comparison to the other offenders. Ms Wasley conceded that Mr Robertson had a number of issues in custody but submitted there were no incidents since December 2022 and that more recently “there is a marked difference in his behaviour, his motivation and his maturity and reflection”.
While I accept that Mr Robertson has shown some progress more recently, I am unable to make a positive finding in relation to remorse, particularly given the terms of s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“Sentencing Act”). I accept that he has some prospects of rehabilitation but any assessment in that regard must be guarded and, again, I am unable to make a positive finding on the balance of probabilities for the purpose of s 21A(3)(g) and (h) of the Sentencing Act.
Mr Robertson offered to plead guilty to manslaughter while the matter was still before the Local Court and entered a plea of guilty to manslaughter in front of the jury panel at the commencement of the murder trial in 2022.
He was arrested on 21 December 2017 and remained in custody until he was granted bail by Rothman J on 25 November 2024 which was after his successful conviction appeal and pending the re-trial. The conditions were stringent, including a curfew, mobile ‘phone restrictions and surety conditions. Ms Wasley submitted that he has been compliant with these conditions since his release and there is nothing to suggest otherwise. I should say I took that into account in assessing his prospects of rehabilitation.
This is not the occasion for an essay on the principles of sentencing or the objectives of punishment. [2] Nor is it necessary to engage in a process wherein the aggravating and mitigating factors under s 21A of the Sentencing Act are listed and considered. Sentencing is, within the confines of the sensible application of appropriate principles, an intuitive and instinctive process.
The sentence I impose must reflect the gravity of the crime, recognise the suffering it has caused, vindicate the dignity of the individual victim, denounce the conduct of the offenders and ensure that each is adequately punished. The sentence must also send a message to the community, and to each of the men in the dock, that such wanton violence will not be accepted in a civilised society and will be met with stern punishment.
On the other hand, the sentence imposed must reflect the individual circumstances of these three men. This includes the difficulties each has had in their childhood and early life, whether they had a criminal record that entitles them (or disentitles them) to leniency, and the efforts they have made towards rehabilitation.
The delay in sentencing, which has caused such anxiety to Mr Starkey’s family as they try to move on from this tragedy, has also caused complications and difficulties for each of these offenders. Each of these men offered to plead guilty to manslaughter a long time ago. They were committed for trial on 19 June 2020 by which time both Mr Symons and Mr Robertson had offered to plead guilty to that offence. Mr McDonald made an offer to plead some time after that but before his trial in this Court was listed to commence. That first trial was abandoned due to the COVID-19 pandemic. They then went to trial, were convicted of murder, succeeded on appeal and ordered to stand trial again. They were released to bail and a week after the re-trial was scheduled to commence the prosecuting authority accepted the offer to plead guilty that had been made something like five years earlier. That should not be taken as a criticism of the Director – there are valid reasons why this case would be charged as murder – but it is the reality for these three individual offenders.
Each offender spent time in custody when the restrictions accompanying COVID-19 meant they were locked down for many hours each day and could receive very limited, if any, visits from their loved ones. As remand prisoners, as opposed to sentenced prisoners, they have less access to programmes in gaol. As will be seen, had sentences been imposed earlier, they would by now have had a parole hearing.
There must also be equal justice, and these offenders must not be left with a justifiable sense of grievance because their sentence is markedly disproportionate to the sentence imposed on Mr McDonough or on their confederates sitting with them in the dock. [3] Relevant differences between cases must be considered, and the sentences should reflect those differences, but the sentence I impose today must not leave any of the offenders with what Mason J once described in the High Court as “the badge of unfairness”. [4]
The facts of this case are such that the principle of general deterrence looms large. The community must be protected by the imposition of stern sentences when offenders engage in such brutal, unlawful and planned violence. It affords that protection by sending a message to others who may be inclined to become involved in similar violent offending.
The unlawful taking of human life is always a serious offence warranting stern punishment. The maximum penalty of 25 years imprisonment reflects the seriousness with which the legislature treats such offending.
The proceedings were instituted before the current prescriptive statutory regime of sentencing discounts came into operation. At common law, the offenders are each entitled to a reduction in their sentences for their early offers to plead guilty to manslaughter. [5] This “discount” is afforded to recognise the utilitarian value of the plea of guilty (or the offer to plead guilty) and its magnitude was tied to the complexity and length of the case and the timing of the plea.
There is no disagreement between the parties that Mr Symons and Mr Robertson are entitled to a 25% reduction from the sentence that is otherwise appropriate.
In the case of Mr McDonald, whose offer to plead guilty came a little later, I suggested in argument that a discount of 20% with which the Prosecutor agreed. However, Mr Hughes suggested it could be as high as the 25% afforded to the co-offenders, there being no significant difference in terms of the utilitarian value of a plea offered shortly before, or shortly after, the committal hearing. Either way the offer was made well in advance of the trial date. One of the many advantages of the common law system over the present scheme is that judges were permitted flexibility in settling on the discount in order to achieve justice and to promote fairness.
I have decided that, in Mr McDonald’s case, it is appropriate to reduce his sentence by about 22% or 23%. This rewards his early offer to plead guilty but, in fairness to the others, is a little less than the 25% discount afforded to Messrs Symons and Robertson.
The parties could not agree on the commencement date of the sentences. In each case, there were complications because of the period that each man has been on bail and, in Mr Symons’ case, because he was sentenced to a short period of imprisonment for negligent driving during the lengthy period of remand.
Section 47(1) of the Senten**cing Act provides that a sentence generally commences on the date that it is imposed. However, sub-s (2) provides that the court may direct that the sentence is taken to have commenced on an earlier day. In making such a direction, sub-s (3) mandates that “the court must take into account any time for which the offender has been held in custody in relation to the offence.” A sentencing Judge is allowed some flexibility in setting a commencement date that is before the date of sentence provided that all periods of pre-sentence custody are taken into account.
The court may also take into account periods where an offender has been on bail but the strictures of the conditions amount to what is often described as “quasi-custody”. [6] Traditionally, this applies to cases where an offender was bailed to a full-time residential drug rehabilitation facility, [7] but a similar approach may apply to cases where the bail conditions are in the nature of house arrest or a curfew or are otherwise particularly onerous. [8] “Whether restrictions outside of gaol amount to quasi-custody is a question of fact”. [9] It is not usually the case that a sentencing judge gives full credit for such periods of quasi-custody and the court is allowed a wide degree of flexibility to meet the circumstances of the particular case.
The most appropriate and transparent way to deal with periods of pre-sentence custody, or quasi-custody, is to backdate the sentence. [10] The extent of the back-date is a matter falling within the broad discretion of the sentencing judge. In the present case, it is not without significance that each offender has remained in custody beyond the date of the expiration of the non-parole period by which time the State Parole Authority would have been obliged to consider whether the offenders should be released to parole. [11] Whether a parole order would have been made is not known and ought not to be the subject of speculation. That decision falls to the executive, not the judicial, arm of government.
I will deal first with the submissions I reject. I do not accept the Prosecutor’s (at least tacit) submission that Mr Symons period of pre-sentence custody should be reduced by the six-week sentence for negligent driving occasioning grievous bodily harm, which was served between 12 January 2018 and 22 February 2018. I take the same approach as did Fagan J in sentencing Mr Symons for murder. His Honour said: [12]
“Having regard to Symons’ relatively sparse traffic record I conclude that the six weeks of full-time custody would not likely have been imposed but for Symons being already in prison on remand, which meant that non-custodial alternatives could not be considered. In the circumstances it would be disproportionate to commence Symons’ sentence for the murder on a date that would make it cumulative on the six weeks for the offence of 16 September 2017. The six weeks will be wholly concurrent with the sentence now to be fixed.”
Similarly, I do not accept any suggestion that the backdate of Mr Robertson’s sentence should be affected by the fact that an order under s 10A of the Sentencing Act was made for an offence he committed in custody. That is a matter which impacts on an assessment of his prospects of rehabilitation but it ought not affect the extent of the backdate of the commencement date of the sentence I will impose.
Finally, I do not accept the submission made by senior counsel for Mr Symons that his sentence should be backdated to the day he went into custody even though he has been on bail between 15 November 2024 and today. In cases of so-called quasi-custody, a sentencing Judge generally exercises the discretion by allowing a proportion of the period of strict bail, the amount varying depending on the nature of the conditions. However onerous the conditions, it is not the same as being in full-time custody although in some cases the conditions may be similar to, or as onerous as, or more onerous than, parole conditions.
I will set out my reasons and conclusions as to the commencement date of the sentence of each of the offenders. I should emphasise that this is not a matter of arithmetical precision or pedantry. Rather it is calculated to give effect to the provision in s 47(3) by backdating the sentence to take into account each day spent in full-time custody on remand and to apply notions of fairness to the periods which I consider the offenders to have been subject to conditional liberty that was so restricted as to amount to a form of a quasi-custody. As to the second of those matters, the extent of the backdate will turn on the circumstances and strictures of the bail conditions.
Mr Symons was arrested on 31 October 2017. He remained in custody until he was released on bail on 15 November 2024. The Prosecutor calculated that this was a period of 7 years and 16 days. The Prosecutor submitted that the commencement date “at the earliest” would be 23 July 2018. That did not allow any backdate or credit for the period of quasi-custody. Mr Trevallion SC submitted that the sentence should commence on the day Mr Symons was first taken into custody. That submission gave the offender 100% credit for the period he was on bail. No authority was cited to justify such an approach and I do not accept it.
I have concluded that the commencement date should be somewhere between the two extremes posited by the parties.
Mr Symons was on stringent bail amounting to a curfew from 10:00pm until 5:00am each day, and subject to daily reporting, from 15 November 2024 until today; that is a period of about nine months. I propose to give him the benefit of about one third of that time for what I consider to be the quasi-custodial nature of the bail conditions.
Accordingly, and for those reasons, I will direct that Mr Symons’ sentence for manslaughter is taken to have commenced on 23 April 2018.
Mr McDonald was arrested on 21 December 2017 and remained in custody until 8 November 2021 when he was granted bail on onerous conditions. His bail was revoked after the jury found him guilty of murder on 29 July 2022 and he remained in custody until 7 November 2024. The amount of time in actual custody was 6 years, 1 month and 29 days. He has since been subject to a stringent bail regime until today.
The Prosecutor calculated that the commencement date of that sentence would be 9 June 2019 to take account of the period he was in custody on remand.
Mr McDonald had bail for about 8 months between November 2021 and July 2022 and for about 9 months since 7 November 2024, making a total of 1 year and 5 months. In the first of those periods, he was subject to electronic monitoring while in the second he was not. The conditions have been reduced in strictness over time. While there was a kind of house arrest regime in place, it was subject to a number of “carve-outs” and he was able to work and conduct his business, while remaining on a strict curfew. While Fagan J took a different approach to that first period of bail, [13] I consider the conditions of bail to be in the nature of a quasi-custodial situation and probably more onerous than parole conditions. I propose to backdate the sentence by a further five months to take account of these periods of strict bail.
The commencement date of his sentence will be 10 January 2019.
Guy Robertson went into custody on 21 December 2017 and was incarcerated until he was released to bail on 25 November 2024. The prosecution case summary said that was a period of 2,532 days. The Prosecutor submitted that the earliest date for his sentence to commence would be 2 September 2018.
His bail conditions since 25 November included house arrest which was really a curfew requiring him to be at home between 9pm and 6am. He was allowed to work and, it seems, go out when he was in the company of three named people. This regime was barely quasi-custodial but, consistent with the approach I have taken with the other offenders, I will backdate the sentence by a further two months to allow for what were stringent bail conditions.
The commencement date of Mr Robertson’s sentence will be 3 July 2018.
The sentence imposed on Mr McDonough is critical to a consideration of the application of principles of equal justice and the requirement that in sentencing a co-offender the sentencing judge must ensure that there is a “due proportion between those sentences”. [14]
Taking all things into account, I am satisfied that the sentence to be imposed on Mr McDonald should be somewhat less than the 7½ year sentence imposed on Mr McDonough. It is true that Mr McDonough had a tragic and profoundly dysfunctional childhood which diminished his moral culpability and that his objective criminality was a little less than that of Mr McDonald. However, Fagan J found unsurprisingly that Mr McDonough’s criminal history did not entitle him to leniency and described his conduct on remand as “poor”. Further, his offence was aggravated by the fact that he breached parole by committing the present offence. Not only that, but the offence for which he was on parole involved an assault where he smashed a man’s head into the ground. The present offence was committed just a week after he was released on parole for that serious offence of violence.
Mr McDonald’s personal circumstances are compelling and his progress towards rehabilitation should be encouraged. While his background did not involve the kind of childhood deprivation and dysfunction endured by Mr McDonough, his lack of significant criminal history entitles him to leniency, he has excellent prospects of rehabilitation and he did not commit the offence while on conditional liberty.
Because of their more serious objective criminality, and despite the positive aspects of their personal circumstances, the sentence to be imposed on Mr Symons and Mr Robertson will be more severe than that imposed on Mr McDonough or Mr McDonald. However, there will be a proper proportion between the sentences.
Delay is always a relevant factor when sentencing many years after an offence was committed. I have taken the delay into account, noting in particular that the offenders offered to plead guilty to the very offence for which they are now to be sentenced a long time ago and that plea was only accepted by the prosecuting authority when the matter came on for trial on the second occasion (or the third occasion if one considers that the first trial date was vacated due to COVID-19). The circumstances of each offender have changed during that time. To adopt the language used in R v Caroll (2010) 77 NSWLR 45; [2010] NSWCCA 55, each offender “has been buffeted by the operation of the legal system in a manner which must be recognised”. [15]
A difficult question arising from the delay was canvassed during the hearing on Tuesday. I received some further information as late as 10:15am this morning when I came onto the bench (see below at footnote 16). It arose because of the lengthy period of remand, the fact that the offenders have been on bail for many months, and the possibility that the non-parole period I would impose may be less than the period of pre-sentence custody while the total sentence would be longer than that period. The question is whether the offenders, or any of them, would have to be returned to custody while the State Parole Authority decides whether to make a parole order. Counsel for each of the offenders submitted this would be undesirable given the progress their clients had made during the period they were on bail.
On behalf of Mr Symons, it was submitted that I should impose a fixed term commencing on the day he went into custody and expiring on the day sentence was imposed. When it was suggested that that seemed to be an impermissible manipulation of the sentencing process or the sentence itself, the submission was rephrased. However, the submission remained to similar effect. At that stage, Mr Symons’ lawyers had not contacted the Parole Authority.
On behalf of Mr Robertson, Ms Wasley advanced two alternative solutions each of which was supported by authority.
First, it was submitted that a fixed term should be imposed which equated to the length of the non-parole period that would otherwise have been appropriate. This was a similar submission to that made on behalf of Mr Symons but Ms Wasley took me to some authorities where the Court of Criminal Appeal has said, in effect, that where a fixed term is imposed, it is the equivalent of the non-parole period rather than the head (or total) sentence: see, for example, McIntosh v R [2015] NSWCCA 184 at [165]-[169] (Basten JA) and cf [174] (Hidden J). Ms Wasley also took me to N Adams J’s helpful but obiter discussion on this subject in Waterston**e v R [2020] NSWCCA 117.
The cases discussed by N Adams J generally concern the circumstances where a court is accumulating more than one sentence and/or where there is a mixture of commonwealth and state offences. I am unable to accept that it is correct in principle to determine a putative non-parole period and treat it as a “fixed term” by calling into aid the provision in s 45 of the which allows the Court to decline to set a non-parole period. That approach seems contrary to the provision in s 44 and cases going back to ueen (1974) 131 CLR 623 at 628-9; [1974] HCA 26 and (1990) 169 CLR 525 at 530-532 and 537-538; [1990] HCA 18. Those cases concerned the purposes of the total (or head) sentence and the purpose of the non-parole period (or minimum term) and the extent to which the same sentencing considerations might bear upon the exercise of the discretion to set the two distinct components of the sentence.
“Thirdly, a question arises as to how a notional non-parole period for the sentence is arrived at when a court declines to ‘set’ a non-parole period. If that sentence then equates to some notional non-parole period does that mean that the statutory ratio in s 44(2) is applied in all cases? For example, if the sentence to be imposed is 2 years imprisonment and a decision is made not to set a non-parole period does that mean that the term has to be reduced to 18 months to reflect the statutory ratio or can it be reduced lower? Would special circumstances need to be found in order to impose a fixed term the length of a non-parole period that is less than three quarters of the notional head sentence? Section 44(2) only applies to sentences when a non-parole period is fixed. Does that mean that a court can reduce a non-parole period to a term lower than the statutory ratio in s 44(2) without having to find ‘special circumstances’?”
These questions arise very clearly in the present case. The practical upshot of approaching the matter in the manner suggested is that the “fixed term” would be substantially less than the appropriate sentence to be imposed on the proper application of s 44 of the Sentencing Act and the requirement that the sentence adequately reflects the seriousness of the offending. Again, I am unable to agree that s 45 can appropriately be employed in the manner suggested.
A particular problem with the course proposed is also that the offenders would be released without any supervision. There would be no period of parole and the jurisdictional pre-requisites for an application by the State of New South Wales for orders under relevant protective legislation would not be met: see, for example, the Crimes (High Risk Offenders*) Act 2006* (NSW), s 5I and the definition of “supervised offender”. In saying this, I should not be taken to suggest that any of the current offenders should be subject to such an application. I am in fact of the opposite view. However, that is a question ultimately for the executive and not for the sentencing court.
The second solution posited by Ms Wasley was that I could take into account the lengthy period of remand in a manner other than backdating the sentence, and then to impose some form of “community-based order”. Because an intensive correction order is not an available option for the crime of manslaughter, the only real option would be to impose a community correction order (“CCO”). This would ensure that Mr Robertson served a lengthy period of incarceration (albeit on remand) and would also mean that he would be subject to supervision for the length of the CCO. Ms Wasley accepted that this would, on its face, seem like a wholly inadequate sentencing response (not her words), but the reasons for taking such a course could be explained in the sentencing judgment by reference to the highly unusual (bordering on unique) circumstances. I took a similar approach in sentencing Moudasser Taleb in 2019: R v Taleb (No 5) (Sentence) [2019] NSWSC 720.
I have anxiously considered adopting this second approach urged upon me by Ms Wasley. However, I have concluded that the imposition of the CCO, even in the exceptional circumstances that exist here, and taking into account the length of time that her client has been in custody, would constitute a dereliction of this Court’s duty to impose an appropriate sentence which serves all of the objectives of punishment: cf R v Aouli [2011] NSWSC 1393 at [96].
At some time while oral submissions were being received, the solicitor for Mr Symons wrote an email to the Parole Authority asking whether a decision on parole could be made while the offenders were on bail. The response he received was marked as Ex S-2 and was in the following terms:
“Dear Mr Jamieson,
Please be advised that in circumstances where a sentence is greater than three years, then the matter must be considered by the State Parole Authority as to the suitability for release (as per s135 of the Crimes (Administration of Sentences) Act 1999 (the CAS Act)). A primary requirement of parole consideration is a Pre Release Report prepared by Community Corrections (s135(3)(f) of the CAS Act).
Enquiries have previously been made with Community Corrections in relation to those bailed into the community and the preparation of Pre Release Reports. Community Corrections (ComCor) have confirmed that in order for Pre Release Report preparations to occur, an individual must be in custody. While it ensures that ComCor staff writing the reports are specialised in writing the requisite report, it also ensures that in circumstances where the Parole Authority may not believe release to parole is appropriate the person remains in the community.
Parole consideration in circumstances of backdated sentences are usually considered 8 weeks later. This is to provide ComCor with 6-7 weeks to prepare a report and to allow the SPA members to have the requisite consideration time as any other matter coming before it. This also allows for any other material to be collated and prepared by the SPA Secretariat, including the criminal history, submissions from registered victims (if applicable) and any possible submissions from the Commissioner of CSNSW (as per s141A of the CAS Act).
As such, if sentenced this week, the Parole Authority would list this matter for parole consideration on 3 October 2025, necessitating the report being provided by ComCor to the Parole Authority no later than 23 September 2025.
If any further information is required, please let me know.”
“It is true that the offender finds himself potentially in an unfortunate situation where it may be necessary for him to be returned to custody so as to allow the steps set out in the Crimes (Sentencing Procedure) Act 1999 to be taken. It is, however, not part of this Court’s function to engage in a process of prediction about what executive or administrative action might be taken in relation to a prisoner’s custody, if a proper and appropriate sentence is imposed.”
In a different, but equally unusual, manslaughter case, the Court of Criminal Appeal obtained the assistance of the Parole Board to ensure that an offender was only taken into custody for the purpose of his being granted parole: Lavender v R [2006] NSWCCA 24 at [4]-[8] (Sully J). I raised this case with the parties during argument, but nobody suggested that there was any step that I could appropriately or properly take to facilitate a similar outcome. It is likely that the regulations and procedures have changed in the 19 years since Mr Lavender’s case was remitted from the High Court back to the Court of Criminal Appeal. It was also a very different case to this one on its facts: see The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37.
I have dealt with this issue in some detail because I propose to make certain recommendations when I conclude these remarks and impose the sentences I must impose. I would hope those recommendations and the foregoing discussion will serve to emphasise that the Parole Board will be called upon soon to make a decision in a very unusual case.
I have considered the sentences imposed in other cases, including those referred to in an attachment to the written submissions provided by senior counsel for Mr Symons. I have considered the sentence imposed in the case of R v Hawi which was provided by the Prosecutor pursuant to her duty of fairness yesterday (that is, after the sentencing hearing). I have already referred to that case in the context of the problem arising from the delay and concerning parole. None of the cases are truly comparable and none of the parties suggested that they were. As I have said, this is a very serious case of manslaughter by unlawful and dangerous act.
The most significant guidance is the sentence imposed by Fagan J on Mr McDonough. However, his case was not subject of the same delay and, presumably, he was considered for parole when his non-parole period expired.
Applying those principles to the facts as I have found them, and synthesising the competing considerations in the instinctive way described by the High Court, I will now explain the arithmetical pathway to the sentences I will then formally impose.
Obviously enough, no sentence other than one of full-time imprisonment is appropriate.
In the case of Mr Symons, I would commence with a sentence of 11 years. I would reduce that sentence by 25% to acknowledge his offer to plead guilty at an early stage. That results in a sentence of 8 years and 3 months. I find special circumstances based on his progress towards rehabilitation and the difficult custodial conditions he has endured through the period of the remand. The non-parole period will be 5½ years. The sentence is taken to have commenced on 23 April 2018 and will expire on 22 July 2026. The non-parole period expired on 22 October 2023.
In the case of Mr McDonald, I would commence with a starting point of 8½ years. Applying a sentencing discount of around 22.5%, with some rounding, the sentence will be 6½ years. The sentence will be taken to have commenced on 10 January 2019 and would have expired on 9 July 2025. I will not set a non-parole period because the sentence has already expired.
In the case of Mr Robertson, my instinctively synthesised starting point is 12 years which would be reduced by 25% for his offer to plead guilty. This results in a total sentence of 9 years. I would find special circumstances under s 44 based on his progress towards rehabilitation, the onerous nature of his custodial conditions and his need for supervision upon release. The non-parole period will be 6 years. The sentence will be taken to have commenced on 3 July 2018 and the non-parole period expired on 2 July 2024. The total sentence will not expire until 2 July 2027.
I must now formally impose those sentences upon each offender and make a number of notations, recommendations and directions:
Beau Andrew McDonald – you are sentenced to a term of imprisonment of 6½ years commencing on 10 January 2019 and expiring on 9 July 2025. I decline to set a non-parole period because the sentence has expired. (Mr McDonald, you may now leave the dock and you are free to go.)
Adam David Symons – you are sentenced to a non-parole period of 5 years and 6 months commencing on 23 April 2018 and expiring on 22 October 2023. There will be a balance of term of 2 years and 9 months which will expire on 22 July 2026.
Guy Robertson – you are sentenced to a non-parole period of 6 years commencing on 3 July 2018 and expiring on 2 July 2024. There will be a balance of term of 3 years expiring on 2 July 2027.
I am required to advise you that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to this offence of manslaughter and may impact on Mr Symons and Mr Robertson. I direct your lawyers to advise you of the possible implications of that.
I note that:
(a) Adam Symons and Guy Robertson were (notionally) eligible for consideration to release to parole on 22 October 2023 and 2 July 2024 respectively. (b) Each has been on bail for around nine months and complied with strict conditions. (c) The delay in the case reaching conclusion has resulted in the provisions of the *Crimes (*Administration of Sentences) Act 1999 (NSW) not having come into effect. (d) The delay was in no way attributable to the acts of either offender.
**********
Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3), Sumpton v R [2016] NSWCCA 162.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A.
Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26.
Lowe v The Queen (1984) 154 CLR 606 at 611; [1984] HCA 46.
R v Oinonen [1999] NSWCCA 310 at [15]-[18], R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309, R v Cardoso [2003] NSWCCA 15; (2003) 137 A Crim R 535 at [19]-[21].
La v R [2021] NSWCCA 136.
See, for example, R v Eastway (Court of Criminal Appeal (NSW), Gleeson CJ, Hunt CJ at CL, Mathews J, 19 May 1992, unrep) where the Court upheld the sentencing Judge’s approach of allowing “approximately 50%” of the period the respondent was in a full-time residential rehabilitation programme at Odyssey House.
R v Quinlin [2021] NSWCCA 284; (2021) 293 A Crim R 253.
Bonett v R [2013] NSWCCA 234 at [50] (Adamson J citing R v Cartwright (1989) 17 NSWLR 243 at 258 and R v Serratore [2000] NSWSC 696 at [31]-[35].
See, for example, R v Newman; R v Simpson [2004] NSWCCA 102; (2004) 145 A Crim R 361 at [27] and Wiggins v R [2010] NSWCCA 30 at [3]-[8].
Crimes (Administration of Sentences) Act 1999 (NSW), s 137.
R v Crane & Ors [2022] NSWSC 1545 at [50].
R v Crane & Ors [2022] NSWSC 1545 at [60]-[61].
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 301-302.
R v Carroll (2010) 77 NSWLR 45; [2010] NSWCCA 55 at [65] (Allsop P and Johnson J, Spigelman CJ, Kirby and Howie JJ agreeing).
The “further information” referred to at [154] was an email from Ms Christie Lanza, A/Executive Officer to A/Assistant Commissioner Ellen McCarroll at Corrective Services NSW (MFI 5). Ms Lanza wrote to the parties on 7 August 2025 in response to their enquiry regarding parole procedures in exceptional cases such as this one. The email suggested that at least some of the process could be completed while the offenders were at liberty.
Amendment to [165].
Footnote 16 added.
R
Symons, McDonald & Robertson [2025] NSWSC 889
(1990) 169 CLR 525
(1984) 154 CLR 606
(1997) 189 CLR 295
(1974) 131 CLR 623
(2010) 77 NSWLR 45
(1989) 17 NSWLR 243
(2000) 49 NSWLR 383
(1981) 147 CLR 383
(2005) 222 CLR 67
On Wednesday 25 June 2025, Mr Symons, Mr McDonald and Mr Robertson were arraigned on a new indictment containing one count of murder and one alternative count of manslaughter. Each of them entered a plea of not guilty of count 1 (murder) but guilty of count 2 (manslaughter). The Director of Public Prosecutions accepted those pleas in full satisfaction of the indictment.
The agreed basis of the plea is and was that the offenders joined and participated in a joint criminal enterprise to assault Clint Starkey. The prosecution no longer alleged that any of the offenders acted with a murderous intention, that is with the specific intention to kill or to inflict grievous bodily harm. Similarly, any suggestion that the offenders acted in self-defence, or that Mr Starkey produced a gun at the scene (an allegation that was made at the trial) was abandoned. The criminal liability for manslaughter is based on the offenders causing Mr Starkey’s death by their joint commission of an unlawful and dangerous act.
The maximum penalty for manslaughter is imprisonment for 25 years: Crimes Act 1900 (NSW), s 24. There is no applicable standard non-parole period. The maximum penalty is a critical statutory yardstick that must be borne in mind from beginning to end. However, the maximum penalty is rarely imposed and is reserved for the very worst offences and for the most incorrigible offenders. Manslaughter arises in many circumstances and the sentences imposed range from the imposition of non-custodial penalties through to very long prison terms.
As I have said, I consider Mr McDonald’s criminality to be slightly more serious objectively than that of Mr McDonough. Mr McDonald remained involved in the assault for longer and he delivered more kicks and blows. Most of those blows were to the lower body and legs although he kicked the upper body, near the head, towards the end of the assault.
I consider Mr Symons’ conduct to be objectively more serious than both of those men. He dragged Mr Starkey from the car and threw him to the ground, thereby initiating the assault. He kneed, kicked, punched and stomped him and, towards the end of the assault twice jumped into the air to create more force as he drove his knees into Mr Starkey’s ribs.
There is, and can be, no dispute that Mr Robertson’s conduct was objectively the most serious of any of the offenders. The Prosecutor’s description of the final stomp on Mr Starkey’s head as “gratuitous” is apposite. Mr Robertson had walked away with McDonough, but ran back to deliver what may have been, but is not established beyond reasonable doubt to have been, the coup de gras.
Further, as N Adams J pondered in Waterstone v R at [85]: