[1959] 3 All ER 513
R v LNT [2005] NSWCCA 307
R v Wright [2009] NSWCCA 3
Veen v The Queen (No. 2) (1988) 164 CLR 465
Source
Original judgment source is linked above.
Catchwords
201 A Crim R 379
GAS v The Queen (2004) 217 CLR 198[2004] HCA 22
Hancock v Prison Commissioners [1960] 1 QB 117[1959] 3 W.L.R 583[1959] 3 All ER 513
R v LNT [2005] NSWCCA 307
R v Wright [2009] NSWCCA 3
Veen v The Queen (No. 2) (1988) 164 CLR 465
Judgment (5 paragraphs)
[1]
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
SANS Law (Offender)
File Number(s): 2012/00073453
[2]
REMARKS ON SENTENCE
HIS HONOUR: Mr Wassim Tiriaki has pleaded guilty to murder. He was involved in the killing of Mr Matthew Hedges on 31 December 2011 in Chester Hill, New South Wales. It is necessary for the Court to impose a sentence on the offender and, in doing so, the Court is required to take into account the circumstances of the commission of the murder and the subjective circumstances of Mr Tiriaki. The Crown and Mr Tiriaki have agreed on facts that form the basis of the Court's findings on the objective seriousness of the offence.
On the evening of 31 December 2011, Mr Tiriaki and Mr Salim Tabbah ("the co-offender") attempted a break and enter at the home of Mr Matthew Hedges ("the deceased"). Mr Hedges lived there with his mother and his girlfriend. On the evening in question, all of the occupants were home, as were the deceased's infant children, aged 4 and 2 years.
Two of the deceased's teenage nephews were also visiting at the time. Everyone in the home was asleep, except for the teenage nephews, who, in these remarks will be referred to as MC and RC.
At about 1:45 AM, Mr Tiriaki and Mr Tabbah intended to break into the home. The offenders intended to detain one or more of the occupants and had brought duct tape for that purpose.
They also intended to assault one or more of the occupants, causing actual bodily harm. While the evidence does not establish what advantage the offenders were seeking by detaining an occupant or assaulting an occupant, it is accepted that the offenders intended to obtain an advantage by so doing.
Mr Tabbah told Mr Tiriaki that if any of the occupants were armed with a firearm, he, Mr Tabbah, had something which would protect the both of them. This was the extent of Mr Tiriaki's knowledge of any weapon being carried by Mr Tabbah.
The offenders were wearing hooded jumpers and masks. They had two rolls of duct tape and Mr Tiriaki had possession of a black folding knife.
The offenders removed the fly screen from the lounge room window and Mr Tiriaki broke the window. This caught the attention of RC inside, who went to the window. He heard a male voice saying, "Let me in".
This caused the two teenagers to wake the deceased, who went into the lounge room towards the broken window. One of the teenagers went to check on the young children and the other ran to the kitchen to obtain a knife, with which to protect himself. As the deceased entered the lounge room, he shouted "Oi, Oi". Mr Tabbah then shot and killed the deceased with a .357 Magnum revolver, by shooting him once in the chest.
The offenders ran off and made their way to the home of Mr Tiriaki's brother. They disposed of their clothing, the duct tape, the masks, and the gun in a red bin on that property.
Mr Tiriaki admits that he and Mr Tabbah participated in a joint criminal enterprise to commit a specially aggravated kidnapping within the house. A specially aggravated kidnapping is a crime punishable by imprisonment for 25 years pursuant to the terms of s 86(3) of the Crimes Act 1900 (NSW).
While attempting to carry out the specially aggravated kidnapping, as is obvious from the foregoing facts, Mr Tabbah shot and killed the deceased. It is also agreed that this act was an act within the scope or purpose of the enterprise upon which the offenders had agreed.
Pursuant to the terms of s 18 of the Crimes Act, an offender is guilty of murder where the offender participates in an attempt to commit, or during or immediately after the commission by the offender or offender's accomplice of a crime punishable by imprisonment for life or for 25 years. Given the agreement as to the specially aggravated kidnapping and the death of the deceased having been caused during an attempt to commit that crime, being a crime punishable by imprisonment for 25 years, and the circumstance of the joint criminal enterprise, the offender, Mr Tiriaki, is, pursuant to s 18 of the Crimes Act, guilty of murder, often referred to as "constructive murder".
Following the offences, police established a crime scene at the deceased's home and located 260g of cannabis in bags as well as 2.8g of methylamphetamine in six bags. The deceased was found to have been, as earlier stated, killed by a single shot, which, on analysis of the wounds, was consistent with him having been shot while bending over with his arm out in front and having been shot at close range.
Mr Tiriaki's brother, upon noticing the items in his bin, including the firearm, contacted police. A crime scene was established at the brother's address and the items in the bin were recovered and subjected to forensic testing.
The charge and proceedings have an unfortunate history. In 2014, the matter proceeded to trial for the first time and the accused was found guilty by a jury of the murder of the victim. The co-accused was found guilty of manslaughter.
The co-offenders gave sworn evidence at the first trial that they had nothing to do with the shooting. Mr Tiriaki gave evidence that he was not in the vicinity of the shooting on the night, but was, instead, alone, at his brother's house. He gave an explanation as to how his DNA was found on the revolver and other items in the bin.
Subsequently, the co-offender, Mr Tabbah, came forward and said that he was the one who shot the victim. On the basis of this new evidence, the Court of Criminal Appeal ordered a retrial. The Court of Criminal Appeal issued the order on 29 March 2023 and, consequently, Mr Tiriaki came to be tried a second time before the Court as presently constituted.
The matter came before the Court on 19 October 2023 in relation to whether on the basis of certain facts a constructive murder had been committed. On 31 October 2023, the Court answered that question and analysed or reiterated the elements that would give rise to constructive murder.
The matter was then set down for a re-arraignment, was required to be adjourned briefly on account of the unavailability of the Court, and on 10 November 2023 the offender, Mr Tiriaki, was, at the insistence of the Court and as a matter of abundant caution, re-arraigned. As is obvious from the foregoing, he pleaded guilty to the murder of the deceased, Mr Hedges.
There are two reasons why the Court considers it necessary to have recounted the detail of the proceedings. First, Mr Tiriaki has been in prison since 6 March 2012 all of which, save for just under three months, was as a consequence of the offence for which he is now to be sentenced. Secondly, there is an issue between the parties as to the applicability of Pt 3, Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (hereinafter "the Sentencing Procedure Act"), which prescribes discounts for a plea of guilty in offences dealt with on Indictment.
Whether the provisions of Pt 3 Div 1A of the Sentencing Procedure Act apply depends upon the proper construction of the consequential provisions. As with all legislation, the statute must be read as a whole; its words are used to derive the purpose of the legislature; and the Court's function is to construe the legislation in accordance with the purpose of the legislature and in so doing, seek to achieve harmonious goals. [1]
The relevant consequential provisions are contained in Sch 2, Pt 30 of the Sentencing Procedure Act and are in the following terms:
"88 DEFINITIONS
In this Part -
'amending Act' means the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017.
'existing proceedings' means proceedings for an offence commenced before the amendment of the former sentencing provisions by the amending Act.
'former sentencing provisions' means Part 3 of this Act, as in force before its amendment by the amending Act.
89 EXISTING PROCEEDINGS
The former sentencing provisions continue to apply to existing proceedings as if those provisions had not been amended by the amending Act.
90 PREVIOUS OFFENCES
This Act, as amended by the amending Act, extends to proceedings for an offence committed before the amendment of the former sentencing provisions by the amending Act, if proceedings for the offence commenced on or after that amendment."
As can be seen from the foregoing, "existing proceedings" are governed by the Sentencing Procedure Act unamended by the promulgation of Div 1A. Otherwise, previous offences committed, but for which there are not "existing proceedings" are governed by the provisions of Div 1A.
An existing proceeding, as defined above, means proceedings for an offence commenced before the amendment. The issue between the parties is whether the proceedings against Mr Tiriaki had been commenced before the promulgation of Pt 3 Div 1A.
Plainly, the offence was committed before the promulgation of the amendments. The murder occurred on 31 December 2011. The provisions of Div 3 Pt 1A of the Sentencing Procedure Act took effect on 30 April 2018.
The offender was arraigned in the Court on Indictment on 2 August 2013 and was sentenced, the first time, on 10 December 2014. Because the appeal depended upon new evidence, as earlier stated, the offender did not appeal the conviction until 16 March 2022 and was granted a new trial by the Court of Criminal Appeal on 29 March 2023.
There are various decisions determining when proceedings commence. Proceedings commence differently, depending upon the proceedings, the purpose of the legislation and its intent.
Ordinarily, and relevantly for present purposes, proceedings were commenced by an initiating process in the Court in question. In serious criminal charges, proceedings are commenced in the Court by indictment.
The purpose of the legislation and the terms of the transitional provisions, read together with the terms of Pt 3 Div 1A, make clear that the commencement of proceedings is no later than the arraignment on Indictment in this Court. The Crown submits, given that the proceedings commenced by arraignment on 2 August 2013, concluded at the sentence by Schmidt J, the proceedings now before the Court are new proceedings that could not have commenced before 2023.
There are difficulties with such a construction. First, when the Court, as presently constituted, re-arraigned the offender in November 2023, it did so for the purpose of permitting a plea and at the insistence of the Court.
Further, the terms of s 6(1) of the Criminal Appeal Act 1912 (NSW) provide that, in certain circumstances, the court will "allow the appeal", and, if it were to allow the appeal, the provisions of s 6(2) of the Criminal Appeal Act provide that the Court of Criminal Appeal shall "quash the conviction". Ordinarily, the term "quash" signifies that anything quashed is rendered null and void and/or annulled.
In relation to a conviction, the conviction is rendered null and void ab initio, or from its delivery and, ordinarily, a verdict of acquittal is to be entered. [2] Different issues may arise in relation to the quashing of a sentence. [3] Nevertheless, once the conviction is quashed, it has no status and the accused could not be described as having been convicted for the period between the "quashed conviction" and its overturning.
The power to order a new trial is granted to the Court by s 8 of the Criminal Appeal Act in circumstances where the Court of Criminal Appeal considers that justice can be remedied more adequately by an order for a new trial rather than by any other order. But, once quashed on appeal, the conviction has no effect, and has had no effect from its delivery and/or recording.
On that basis, proceedings in this Court commenced on 2 August 2013, before the promulgation of Pt 3 Div 1A. And the proceedings had not concluded to a verdict that has or had any status. Comfort for that approach is obtained from the terms of Div 1A itself.
First, s 25B of the Sentencing Procedure Act refers to a "new count offence" as one that is subject to an ex officio Indictment or in which a new count is inserted in the Indictment. The terms of ss 6 and 8 of the Criminal Appeal Act were well-known and often utilised and would have been known to the legislature at the time of the promulgation of Div 1A. Yet there is no reference to proceedings on an earlier Indictment for which a new trial is ordered on appeal.
I take the view that the proceedings commenced on 2 August 2013, and the effect of the order by the Court of Criminal Appeal is that the proceedings had not concluded to verdict and were in no different position than proceedings in which the jury was discharged, and the trial re-commenced. The arraignment that occurred on 2 August 2013 continued to provide the Court with the jurisdiction to conduct a trial and the proceedings is the same proceedings as that commenced on 2 August 2013. As a consequence, the provisions of Div 1A do not apply and the Court reverts to earlier principle in relation to a discount for the plea of guilty.
The utilitarian value of the plea of guilty is, notwithstanding the foregoing conclusion, not at the highest level. Nevertheless, it saved significant Court time and was entered in a manner which provided significant notice that a plea of guilty was likely, thereby avoiding additional stress and trauma to a number of eyewitnesses, who were close to the deceased, being required to testify as to that which had occurred. I assess its utilitarian value at 12.5%
I have already recounted the facts giving rise to the offending and the role of Mr Tiriaki in that offending. There is no fixed relativity of offending depending upon the basis of liability.
Thus, depending upon the facts in any circumstance, a principal in the first degree may or may not be more culpable than a principal in the second degree. One only has to imagine a circumstance where, for example, a person procures a murder, but another inflicts the injury. In each case, it is the circumstances of the offending that determines whether a person who is criminally liable for a murder, otherwise than as the principal in the first degree, should be regarded as equally culpable or less culpable, or sometimes more culpable, than the person inflicting the fatal injury. [4]
In discussing the objective seriousness of the offending by Mr Tiriaki, one must take into account that liability has been sheeted home as a consequence of the participation of Mr Tiriaki in what is plainly a very serious and dangerous act, which gave rise to the foundational offence and ultimately led to the death of Mr Hedges. The foundational offence, in and of itself, carries a maximum sentence of 25 years' imprisonment. Murder, of course, carries a maximum sentence of life imprisonment, but such a sentence, like all maximum sentences, is confined to offending that is in the category that warrants the imposition of the maximum sentence.
Murder is the most serious offence in the criminal calendar. It is treated seriously because it involves the taking of human life and the law reflects society's view of the sanctity of human life.
To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. The Court is required to assess the objective seriousness of an offence within the range of conduct with which offences of that kind are concerned. Thus, even, as here, where one is speaking of murder as the most serious offence in the criminal calendar, it is necessary to assess the conduct of the offender to determine where, in that range of seriousness, this offence fits.
As stated, it is only in the worst category of offences, or more accurately, that category of offences that warrants the maximum sentence, that the maximum fixed by Parliament is imposed. Whether a particular offence is in that category is not ascertained by imagining conduct that could be worse. One can almost always imagine worse conduct.
Nevertheless, the Court must assess objectively the features of the offence and the circumstances of the commission of the offence, in order to determine whether it is in the category that warrants a maximum sentence, or lower down the scale of seriousness within a notional range between the lowest level of culpability and the highest level.
The purposes of sentencing any offender, for any offence, is to resolve what are often, if not necessarily, conflicting sentencing objectives. In serious crimes, such as murder, the importance of punishment and public deterrence loom large.
The purposes of sentencing include the protection of society, personal and public deterrence, retribution and reform. Each of these objectives, prescribed by the legislature in s 3A of the Sentencing Procedure Act and reflecting the common law, [5] must be assessed having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence charged.
Further, considerations of reform or rehabilitation of the offender are also significantly affected by the objective circumstances of the offence, but they are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated. The capacity for, and the likelihood, if any, of, rehabilitation, in turn, impacts upon the degree to which a sentence is imposed, which ensures the protection of society and the personal or specific deterrence of the offender.
The process is one that involves what has been described as "intuitive" or "instinctive" "synthesis". It takes each of the objective circumstances of the offence, and each of the subjective circumstances of the offender and synthesises them to achieve the purposes of sentencing already described.
Every murder is serious. Every murder involves the taking of human life by a person in circumstances where there is an intension to kill or to cause grievous bodily harm, which intention elevates the seriousness of the offence to that which is, as earlier stated, the most serious of crimes in the criminal calendar.
Apart from the purposes of sentencing, each of which is a guidepost, and the maximum sentence, which is also a guidepost, the legislature has set a standard non-parole period, which also acts as a guidepost in the fixing of a sentence. The standard non-parole period for murder is 20 years' imprisonment.
Here, Mr Tiriaki did not inflict the injury which caused death. Further, while he was engaged in a very serious offence which led to death, the Crown has not suggested that Mr Tiriaki contemplated death as a result of the offending. Nor did Mr Tiriaki encourage or procure the shooting.
Bearing in mind all of the circumstances of the offending, the role of Mr Tiriaki in the murder, as now agreed, puts his offending at below mid-range.
I accept the submission of the offender that he had no subjective purpose or objective to engage in the act of murder. However, murder may be committed by a principal in the first degree with an intention to cause grievous bodily harm. The specially aggravated kidnapping, which is the foundational offence that gave rise to the offender's liability, included contemplation and/or agreement that actual bodily harm might be inflicted. Further, the offender had an indication that his co-offender had possession of a weapon, as a consequence of the comment that "if any of the occupants were armed with a firearm, he, Mr Tabbah, had something to protect both of them". [6]
The offending occurred in circumstances where there were people in the house and, relevantly, in the home of the deceased. There are other factors that are aggravating. The offence was committed in company and in the presence of persons who were children, being the deceased's infant children and the two teenagers to whom earlier reference has been made. The circumstance that the murder occurred as part of a planned criminal activity gives rise to the foundational offence and, on that basis, I do not aggravate the offending on that account.
The foundational offence was necessarily traumatic for all of the occupants of the house and the shooting and death of the deceased rendered it even more so. While every loss may be felt by loved ones, a violent death is particularly traumatic and for it to occur in the presence of the victim's family is brutal; those present will live with that experience for the remainder of their lives. I have read and had regard to the Victim Impact Statements provided by the Crown.
[3]
Subjective Circumstances
The offender was born in July 1990 and was 21 years of age at the time of the offending. His criminal history is unremarkable, involving, with one or two exceptions, driving offences, albeit relatively serious driving offences. One exception was a common assault for which the offender received a fine and another was a break and enter.
The assault occurred in 2008. The driving offences include two offences for which, for each of them, the offender received 3 months' imprisonment.
The offender is the youngest of six children and his parents were first-generation immigrants. His childhood was "good, happy, perfect" with no adverse experiences. There is no family history of mental health issues, and his parents did not expose the applicant to the use or abuse of alcohol or drugs or domestic violence or abuse of any kind. His family continue to support him and have supported him while he has been imprisoned for this offence.
A psychology report dated 21 November 2023 and prepared by Ms Alison Cullen describes the offender as frank and forthcoming, slightly affected, but interested, succinct and direct. His testing revealed that, psychologically, he was blunt and direct and likely to be honest in responses.
At the time of the offending Mr Tiriaki was suffering, attention deficit hyperactivity disorder (ADHD) and mild cannabis use disorder, which currently is in sustained remission. He also has symptoms, arising from the first conviction, relating to post-traumatic stress disorder (PTSD) and severe persistent depressive disorder with anxious distress and persistent major depressive episode.
The ADHD from which Mr Tiriaki suffers causes a number of issues in his behaviour and confirms what otherwise arises from his history, that Mr Tiriaki is a person who is impulsive, takes risks and engages in substance abuse. He first experienced cannabis at the age of 14. The psychologist expressed the view that he has sound rehabilitation prospects and reduced risk of recidivism.
There was an Affidavit filed in the sentencing proceedings from his current partner with whom he had a relationship as a young person, a long-term break and a reactivation of the relationship during the course of Mr Tiriaki's imprisonment. There are also Affidavits in support from his siblings, his sister and brother, a family friend and two chaplains, one from each of his gaols.
His parents are 75 years of age, and the offender speaks to members of his family every day. The support from his family and partner is impressive and allows the Court to accept the opinion of the psychologist that he has sound rehabilitation prospects and a reduced risk of reoffending.
His time in prison has not been perfect and he has offended, seemingly as result of his behavioural effects of his ADHD and PTSD. He was placed in segregation for three months for his own protection.
There are also psychologist reports relating to injuries received from motor vehicle accidents that have occurred in the past and, notwithstanding the cause suggested by Ms Cullen, may, given his reaction, be the source of his PTSD. The chaplains' reports confirm the support of his family and partner and the stable environment which supports the prospects of rehabilitation. He has had a positive influence on fellow inmates, at least according to the chaplains.
The principles to be adopted in sentencing a young person are well-known and of long-standing. In MJ v R, CPD v R, [7] I said:
"[70] Further to the foregoing, I confirm the comments made by me in R v LNT [2005] NSWCCA 307 (with whom Simpson and Johnson JJ agreed) as to the principles to be adopted on the sentencing of young offenders. The Children (Criminal Proceedings) Act 1987 applied to minors and establishes a different regime than for adults. Nevertheless, a person who is 17½ years of age cannot be expected to be treated significantly differently from his co-offender who has turned 18. This does not mean that youth, who are not minors, are not entitled to an assessment of sentence, that takes into account their youth and immaturity: see LNT, supra, at [32] and following, and the cases cited therein.
[71] Chronological age of a young offender is not solely the determining factor in deciding how much weight should be attributed to general deterrence, as distinct from the other factors, in assessing an appropriate sentence. Regard must be had to the mental state and circumstances of the offender at the time of the offending: R v AN [2005] NSWCCA 239, per Howie J, with whom James J and I agreed, at [57]. Likewise, the violence of the offence, of itself, does not necessarily establish that the juvenile is acting 'as an adult'. In sentencing, juveniles (including minors), who act as an adult would, the function of the courts requires deterrence and retribution and they remain, or become, more significant elements in sentencing the youth: R v AN, supra, at [53], citing R v Bus (Court of Criminal Appeal, 3 November 1995, unreported). The test, in those circumstances, is whether the youth has conducted himself or herself in a way that an adult would, and that requires an assessment of the maturity and conduct, not only the degree of violence and the gravity of the offence."
I adhere to the comments above. [8]
In BP v R, [9] Hodgson JA said:
"[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person's less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] - [36].
[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity, and that a 'child offender' of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.
[6] Third, I do not think courts should be over-ready to discount the relevance of an offender's youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors."
As is clear from the foregoing extract from the judgment of Hodgson JA, a young person of 21 years of age, generally, will not have matured fully and the sentencing of such a person must take account of that immaturity. In my view, the offending in this case, for which there is no history of this kind in the offender's record, discloses both immaturity and aberrant behaviour.
Notwithstanding the seriousness of this murder and the effect it has had on the victim's family and those close to him, nothing the Court can do can undo that which has been done. In this case, having taken the view that there are sound rehabilitation prospects and a reduced likelihood of reoffending, it is important to stress the emphasis on rehabilitation and reform, particularly given the offender's age.
I have been addressed on behalf of the offender, and by the Crown on the issue of parity with Mr Tabbah. Mr Tabbah was convicted of manslaughter and Mr Tiriaki must be sentenced for murder. While each was involved in the same conduct, the level of culpability necessarily differs, and while I take into account the sentence imposed on Mr Tabbah, strict parity is less important.
I have already indicated that I allowed 12.5% reduction for the utilitarian value of the plea of guilty, which obviated the necessity of calling the family and close ones of the deceased, who witnessed some or all of this offending. I take the view that Mr Tiriaki has given up the possibility of receiving the same verdict as Mr Tabbah, being a verdict of manslaughter, even though the Crown case is a strong one.
I apply the principles summarised by Hodgson JA and extracted above and I give greater emphasis to rehabilitation, the prospects of which are sound, and reform, given the expression of remorse, his acknowledgement of responsibility and I give less emphasis to specific and general deterrence. Otherwise, specific and general deterrence would loom large.
On the basis of the offender's youth, and the prospects of rehabilitation, I find special circumstances to reduce the statutory ratio between the non-parole period and the remainder of sentence. I round the calculations but start with a head sentence of 20 years before reductions. The s 5 threshold has been satisfied.
[4]
Sentence
Mr Tiriaki, please rise.
Wassim Tiriaki, you are convicted of murder in that, on 31 December 2011, at Chester Hill in the State of New South Wales, you did murder Matthew Hedges. The foregoing conviction is recorded.
I find special circumstances.
1. I sentence you to a term of imprisonment, a full-time custodial sentence, being a non-parole period of 11 years and 8 months' imprisonment, commencing 6 June 2012 and concluding 5 February 2024, with the remainder of term of 5 years and 10 months, concluding 5 December 2029.
2. You are first eligible for parole on 5 February 2024.
3. Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), you are advised of the existence of that statute and that it may apply to you and to this offence and your legal team is directed to explain the significance of this fact to you.
[5]
Endnotes
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [70], [71], [78] (McHugh, Gummow, Kirby and Hayne JJ).
Criminal Appeal Act 1912 (NSW), s 6(2).
Hancock v Prison Commissioners [1960] 1 QB 117; [1959] 3 W.L.R 583; [1959] 3 All ER 513.
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22; R v Wright [2009] NSWCCA 3 at [29].
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14.
Agreed Facts, at [7].
MJ v R, CPD v R [2010] NSWCCA 52 at [70] and [71].
See also R v LNT [2005] NSWCCA 307; and BP v R [2010] NSWCCA 159; 201 A Crim R 379 at [108].
BP v R [2010] NSWCCA 159; 201 A Crim R 379 at [4]-[6].
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: 01 December 2023