R v Walmsley-Hume; R v Walmsley (No 6)

Catchwords: CRIME – sentence – murder – son and mother party to a joint criminal enterprise to drive a Triton dual cab ute at the deceased and hit him from behind to exact revenge in context of ongoing feud – where the driver of the ute had intention to kill – where the passenger in the ute was a party to a joint criminal enterprise to cause grievous bodily harm or to kill the deceased – mitigating subjective circumstances – need for denunciation and general deterrence for revenge motivated offending

Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), ss 14, 15, 33
Crimes Act 1900 (NSW), 18, 19A
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 30E, 54A

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
GL v R [2022] NSWCCA 202
Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
R v Hill (1981) 3 A Crim R
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Tapueluelu v R [2006] NSWCCA 113
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
TM v R [2023] NSWCCA 185

Category: Sentence

Parties: Rex (Crown)
Jayden Walmsley-Hume (JWH) (Offender)
Katie Walmsley (KW) (Offender)

Representation: Counsel:
K Ratcliffe / J Diggins (Solicitor Advocate) (Crown)
S Hall SC (Offender JWH)
E Anderson (Offender KW)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Murphy’s Lawyers (Accused JWH)
Blaxland Law (Accused KW)

File Number(s): 2022/00100346; 2022/00100355

Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) the name or identifying information of any persons who were children at the time of the offending or other relevant events is not to be published in connection with this proceeding.

JUDGMENT

Introduction

1. On 24 February 2022, just before 3:00pm, Taj Hart was walking north along a track next to Old Southern Road, South Nowra going to visit a friend who lived nearby. At about the same time, Jayden Walmsley-Hume was driving in a white Mitsubishi Triton dual cab ute south on Old Southern Road with his mother, Katie Walmsley, who was in the front passenger seat. After they saw Taj Hart they did a U-turn, drove north up Old Southern Road through a roundabout and continued north. Jayden Walmsley-Hume then drove seven metres off the road and hit Mr Hart directly from behind. Taj Hart died as a result his injuries shortly afterwards, having been taken by ambulance to Shoalhaven District Memorial Hospital.

2. Mr Walmsley-Hume and Ms Walmsley were tried together and were both found guilty of the murder of Taj Hart.

3. It must be acknowledged that Mr Hart’s death was a tragedy, a very significant human tragedy, for his family, and all the others affected by this sad matter. These remarks, of necessity, must focus on the circumstances of the deceased’s death, the circumstances in which it occurred and what happened subsequently. The remarks must also focus on the offenders’ circumstances. This is not, however, to show any disrespect to Taj Hart or his family. Nor does it diminish the importance or value of Mr Hart’s life or the significance of his death. I shall return to those matters later in these remarks.

4. Mr Walmsley-Hume and Ms Walmsley each now stand to be sentenced for the murder of Mr Hart.

Maximum sentence and standard non-parole period

5. The maximum sentence for murder is life imprisonment. [1] The Crown did not submit, and I do not consider, that such a sentence would be appropriate in the circumstances for the offence of murder committed by each offender. Additionally, there is a standard non-parole period of twenty years for the offence of murder. [2] The maximum penalty and the standard non-parole period are both statutory guideposts which I have taken into account in determining the appropriate sentences in all the circumstances.

Fact finding on the evidence

6. In order to determine the appropriate sentences, one of my tasks is to make findings of fact as to what occurred. [3] These findings must be consistent with the jury’s verdict but where findings are not necessarily implicit in the jury’s verdict, it is proper for me to make findings and to take them into account provided they do not conflict with the jury’s verdict. [4] The facts I find against the offenders must be found beyond reasonable doubt but the facts found in favour of the offenders need only be found on the balance of probabilities. [5]

7. My findings have been based on a consideration of all of the evidence as a whole. More specifically, as to the events when Mr Hart was hit and killed, I have accepted the evidence of Ms Bayes-Morton, her son and his girlfriend who were respectively the driver and passengers in the Kia Carnival which was the car travelling behind the white Triton ute as it drove north up Old Southern Road as well as the evidence of Ms Plumpton, a resident of Old Southern Road at the relevant time. I have also accepted the evidence of Mr Lunn who drove up Old Southern Rd after Ms Bayes-Morton and whose dashcam recorded the white Triton ute going off the road and hitting Mr Hart. In addition, I accepted the expert evidence of Mr Johnston, a crash reconstruction and biomechanics engineer, who produced a video reconstruction or simulation of the incident in which Mr Hart was killed. Each of those witnesses was in my view honest and their evidence was not challenged to any substantial degree and I accept it as generally reliable. In addition to Ms Bayes-Morton’s oral evidence, there was also a police body worn video (BWV) recording of her comments made at the scene shortly after the incident. I also accept her evidence in that video recording.

8. The other principal witness to relevant events on the afternoon of 24 February 2022 was Ms Townsend, a nurse who was driving along Greenwell Point Rd and then south down Old Southern Rd on the afternoon in question. She observed the white Triton ute near the Greenwell Point Rd intersection with Old Southern Rd and heard comments from the driver and passenger in the ute. Ms Townsend subsequently reached the scene where Mr Hart had been hit and stopped to assist. Approximately 40 minutes after the incident, Ms Townsend’s recollection as to what she heard and saw was recorded by police on BWV. In cross examination, her evidence was robustly challenged on a number of bases, including inconsistencies between her police statements and what was recorded on the BWV, inconsistencies between her oral evidence and what she had said in her police statements and on the BWV and inconsistencies between her evidence and other evidence such as whether Mr Walmsley-Hume had tattoos.

9. I formed the view that Ms Townsend was an honest witness who was trying to do her best to recall what happened and what was said. In light of the challenges to her evidence in cross examination, however, it appeared that Ms Townsend’s recollection may have been influenced by what other witnesses had said and by her ruminating, during the period between the incident on 24 February 2022 and the trial in 2024, on what she had seen and heard. As a result, I concluded that her oral evidence given more than two years after the events in question was not entirely reliable but what she said at the scene shortly after the incident, as recorded on the BWV, was reliable and accurate. Accordingly, I have accepted what was said by Ms Townsend as recorded on the BWV after she was spoken to separately from Ms Bayes-Morton and I accepted her oral evidence in court where it was consistent with that recording or with other evidence.

10. The jury’s verdict in respect of Ms Walmsley necessarily involved acceptance that Mr Walmsley-Hume and Ms Walmsley were parties to a joint criminal enterprise, or agreement, concerning their actions in driving towards and hitting Taj Hart. The verdicts also entailed rejection of Mr Walmsley-Hume’s account of his actions and intentions and rejection of the reasonable possibility that his account could be true. In light of this and my assessment of Mr Walmsley-Hume when he gave evidence in court and when he gave his recorded interview with police, I do not accept his account of what he did, of what he intended and of what was said by him and his mother in the white Triton ute at about the time of the murder. Ms Walmsley did not give evidence. Accordingly, my findings in relation to the joint criminal enterprise between the two offenders are based on inferences from my findings in light of the evidence as a whole. In relation to what occurred about the time of Mr Hart being hit by the white Triton ute, I have relied particularly of what was seen and heard by Ms Bayes-Morton and Ms Plumpton together with the CCTV compilation, the dashcam footage and the reconstruction and video simulation prepared by Mr Johnston. I have also relied on what Ms Townsend saw and heard.

11. A further aspect of the evidence relevant to determining, among other things, the content of the agreement between Ms Walmsley and her son was their state of mind or attitude in relation to Mr Hart at the relevant time. Their attitude towards Taj Hart on 24 February 2022 can be inferred from the prior history of animosity between them and Mr Hart and his friends. In this regard, I have relied on the largely consistent evidence concerning the previous incidents involving Mr Hart and the two offenders. Where there was any significant divergence, I generally accepted the evidence of Mr Bradbury, Mr Bryant and Mr Thompson, three friends of Taj Hart, Mr Hart’s step father, Mr Salent, and his mother, Ms Hart, the former girlfriend of Mr Walmsley-Hume, and Ms Stih, a friend of Ms Walmsley, in preference to that of Mr Walmsley-Hume, his father, Mr Kris Hume, and his fried, Mr Meredith. I did so based on my assessment of the way in which each witness gave evidence, its inherent credibility or otherwise and the likely motivations of each. There were some differences or inconsistencies between the evidence of the witnesses I accepted, but these did not, in my view, undermine the credibility or general reliability of these witnesses to such an extent that I should reject their evidence entirely. My findings are based on the versions given by those witnesses that I concluded were most consistent with the evidence as a whole.

12. On these bases, my findings as to what most relevantly occurred are as follows.

The facts

Background

13. For a number of years prior to February 2022, Taj Hart lived with his grandmother, affectionately known as Nan, and other members of his family in a house on Old Southern Road, South Nowra. The house was not close to, but was within walking distance of, the McDonald’s and KFC on the Princes Highway at South Nowra.

14. During this same time, Mr Walmsley-Hume lived with his mother in Currarong, approximately half an hour’s drive from Nowra.

15. For about four years prior to the killing, significant animosity existed between Jayden Walmsley-Hume and Taj Hart and his friends. Mr Walmsley-Hume and Mr Hart were involved in physical fights on a number of occasions. Generally, Mr Walmsley-Hume came off second best in those fights.

16. On two occasions, referred during the trial as the Jelly Bean Park incident and the PCYC incident, Ms Walmsley attended the scene in the immediate aftermath of the altercation between her son and Mr Hart and his friends. On those occasions Ms Walmsley was distressed because of what had happened to her son and expressed her anger towards Mr Hart and his friends.

17. There was another incident which occurred at Orient Point. On that occasion, Mr Hart, Mr Bradbury and other friends were parked overlooking the beach. Ms Walmsley, driving a small Jeep, pulled up near the group of friends. She leant out of the window and screamed at them something about fighting her son and one of the friends told her, in effect, to go away. When the group drove off at speed, Ms Walmsley followed them in her car for a time until they lost her.

18. For about two years prior to February 2022, Mr Walmsley-Hume’s girlfriend lived with him and his mother in Currarong. During this time when she was in the car with Ms Walmsley and Mr Walmsley-Hume, they often drove past Taj Hart’s house in South Nowra or drove around Nowra to see if Taj or his friends were out in the town. Ms Walmsley would sometimes point out people who could be Mr Hart and his friends and Mr Walmsley-Hume would speed up to see if it was them. This reflected Ms Walmsley’s animosity towards Mr Hart and her desire to assist her son to get some sort of revenge for what he had suffered at the hands of Mr Hart or his friends.

19. In an incident in October 2021, Ms Walmsley drove with Mr Walmsley-Hume as a passenger to the McDonald’s in South Nowra. Mr Hart and his friends were in the area and Ms Walmsley stopped near them. She left the car and was described as having “charged” towards the group of friends. As she did so, she screamed things such as “Have a fucken go, you dirty dog” while Mr Walmsley-Hume was somewhere behind her waiting armed with a metal bar or pole about a metre long. Part of this incident was captured on a Snapchat video which was in evidence. Ms Walmsley’s actions and words depicted in the video were aggressive and she was seeking to have Mr Hart or his friends fight her son, when he was armed with a metal pole but they were apparently not armed. Thus, it was likely that Mr Hart or his friends would have been seriously injured if they had not left and a fight had taken place.

20. In November 2021, there was a further incident when Ms Walmsley drove with Mr Walmsley-Hume and others in a small white car to McDonald’s and KFC in South Nowra. Mr Hart and his friends were again in that area at the time. Mr Walmsley-Hume spoke to Mr Hart’s group and said “Come up, away from the cameras” in order to have a fight. The group eventually agreed to have a fight but without weapons. Mr Thompson’s description of what then occurred was: [6]

“Mr Walmsley jumped out with an unknown person - I can't remember who it was. They were fully masked up, all black, everything, jumped out with [metal] poles, chased me and Taj around the KFC. We split. They were on our tails, about a metre behind us the whole time … I split up, run up the highway way. Taj ran towards Macca’s and we ended up meeting back up towards [Mr Hart’s] nan’s [house].”

21. Later that same day, Mr Thomson saw the two offenders in the same car drive past Mr Hart’s Nan’s house a couple of times. I infer, based on the evidence as a whole, that Ms Walmsley and her son drove past in this way in an attempt to obtain a further opportunity for Mr Walmsley-Hume, armed with a metal pole, to fight Mr Hart.

22. These two incidents in October and November 2021 were consistent with Mr Walmsley-Hume’s and Ms Walmsley’s animosity towards Mr Hart extending to seeking to do him serious harm.

23. On 7 January 2022, Ms Erin Hart, Taj Hart’s mother was at Nan’s house together with her partner, Mr Salent, Taj, Taj’s friend Jalen Thompson and Ms Hart’s younger children. One of the younger children was outside Nan’s house and saw a small white car driving slowly in the street on the northern side of Nan’s house. Mr Walmsley-Hume was driving and his girlfriend was a passenger in the car. The car then came up Old Southern Road travelling on the same side of the road as Nan’s house and, in Ms Hart’s words, “came tearing down full speed on next-door’s lawn, nearly hit the Colorbond fence [which was the dividing fence between Nan’s house and the next door neighbours’ house to the south]”. Ms Hart and other members of her family were standing in or near the driveway which was next to the Colorbond fence. Nan’s water meter was near the end of the fence. The car drove up onto the neighbour’s front lawn and veered so as to avoid hitting the Colorbond fence and the water meter. The car continued on the grass in front of Nan’s house and then went back onto Old Southern Road. The car was a metre or two away from Ms Hart and the family members with her before it swerved back onto Old Southern Road. Mr Walmsley-Hume’s girlfriend described what occurred in the following terms “[Mr Walmsley-Hume] sped up, and then he had veered to the left going up the driveway and onto the lawn. And all of Taj’s family or friends had scattered and were pulling each other back so no one got hurt. And then that’s when people on Taj’s side had started to defend themselves and throw stuff at the car.” As a result of things being thrown at the car, it was damaged. The car then drove off north up Old Southern Road.

24. Mr Walmsley-Hume drove to his father’s partner’s house where he left his girlfriend and collected his father. The two of them drove back to Mr Hart’s Nan’s house and parked across the road from the house. Nan who was outside talking to the neighbours saw them arrive and called out “They’re back, they’re back”. The two men left the car and walked across the road to Nan’s front yard. Mr Walmsley-Hume had a knife with a 15-20 cm blade in one hand and his father had something like a crowbar.

25. On hearing that Mr Walmsley-Hume had come back with someone, Mr Salent grabbed a piece of wood and Taj went to the shed in the backyard and grabbed a solid metal pole between about 50 cm and a metre in length. Mr Salent and Taj manoeuvred wheely bins between themselves and Mr Walmsley-Hume and his father. While Mr Walmsley-Hume was attempting to stab Mr Hart, Taj hit him on the elbow with the metal pole which resulted in his elbow being severely injured. After Mr Walmsley-Hume was injured, he and his father returned to their car. While doing so, Mr Walmsley-Hume said to Taj Hart something like “you’re dead” or “you’re gone”.

26. Police attended both Nan’s house and Ms Walmsley’s house that night in relation to the incident. Mr Walmsley-Hume did not go to hospital to receive treatment for his elbow until the evening of 9 January 2022 when he was taken by ambulance to Shoalhaven District Memorial Hospital. He underwent emergency surgery on 10 January 2022 during which it was observed that he had suffered a penetrating injury down to the joint with an open fracture of the left olecranon, which is the boney tip of the elbow. The fracture was required to be fixed in place using a plate with screws. Based on the description, the photographs and the scan of his elbow I am satisfied that the injury to Mr Walmsley-Hume’s elbow was a very serious injury.

27. Ms Stih, a friend of Ms Walmsley, picked Mr Walmsley-Hume and his mother up from the hospital to take them home. During that trip in Ms Stih’s car she observed that Ms Walmsley was not happy and heard her say something like “Don't worry, they’ll get theirs.”

28. From these findings and in light of the evidence as a whole, I have concluded that, after Mr Walmsley-Hume was injured on 7 January 2022, he wanted revenge against Mr Hart. Similarly, Ms Walmsley became aware of what occurred and her animosity towards Mr Hart and her desire for revenge on behalf of her son increased. Thereafter, both mother and son were on the lookout for an opportunity that would allow Mr Walmsley-Hume to exact the revenge they wanted.

24 February 2022

29. At about 2:45 pm on Thursday 24 February 2022, Taj Hart left his Nan’s house to walk to the house of his friend who lived nearby. To do so, Taj walked north on the western side of Old Southern Road past the Nowra Christian School which was situated on the eastern side of Old Southern Road between Mr Hart’s Nan’s house and the roundabout at Hillcrest Avenue. As this was near the time when school finished, there was school traffic on the road near the school.

30. At about 2:50 pm, Mr Walmsley-Hume was driving south down Old Southern Road in a white Triton dual cab ute with his mother in the front passenger seat. They saw Mr Hart walking beside the road in the opposite direction. Shortly after, they did a U-turn on Old Southern Road near Taj’s Nan’s house and travelled north towards the Nowra Christian School.

31. Ms Bayes-Morton in her white Kia Carnival was parked on the western side of Old Southern Road opposite the school waiting with her son to collect his girlfriend and her other son. Ms Bayes-Morton saw her other son on the side of the road near the school and put her window down to speak to him. Looking out the window, she saw the white Triton ute drive past with Ms Walmsley in the front passenger seat and noticed what she described as the passenger “hanging out” of the window, with her upper body protruding a little way out of the window and her forearm resting on the window sill. I infer that Ms Walmsley was hanging out of the window in this way to try to see where Taj Hart was on the verge on the western side of Old Southern Road.

32. The white ute then continued in a northerly direction and Ms Bayes-Morton pulled out behind the ute and kept driving in the same direction. The offenders’ ute continued through the roundabout at Hillcrest Avenue with Ms Bayes-Morton eventually following.

33. At about 2:53 pm and about 95 m past the roundabout, Mr Walmsley-Hume drove off Old Southern Road onto the western verge towards where Mr Hart was walking along a dirt track about 7 m from the edge of Old Southern Road. The ute was travelling up a slight incline at a speed of about 35 to 40 kph. Mr Walmsley-Hume did not brake or swerve to avoid colliding with Mr Hart but deliberately drove off the road and hit him from behind. The middle of the front of the bonnet and the grill smashed into Mr Hart’s rear upper torso which caused his body to bend back hitting the bonnet leaving a dent. Mr Hart’s body then slid forward off the bonnet and the ute passed over him. The impact made such a loud noise that Ms Plumpton who lived approximately 50 metres away across Old South Road and the access road running parallel to Old Southern Road heard what she described as “a very loud bang” which caused her to look out of her window and see the ute which had returned to the road and Mr Hart stumble before falling to the ground. Mr Walmsley-Hume and Ms Walmsley cannot have been unaware of the severe head on collision with the deceased. They did not stop to render assistance or even to check what had happened. They did not call an ambulance.

34. After hitting the deceased and grazing a tree in the vicinity, the ute’s speed decreased to below 20 kph consistent with the collision, the topography and Mr Walmsley-Hume taking his foot off the accelerator. Mr Walmsley-Hume then accelerated and drove back onto Old Southern Road and continued north to the intersection with Greenwell Point Road.

35. During the time when the ute was off the road, it was fully under the control of the driver and took the path that it did as a result of Mr Walmsley-Hume’s steering and throttle control. There was no loss of control of the ute nor was there anything to indicate that anyone in the vehicle attempted to stop the vehicle before it hit Mr Hart or attempted to steer it so as to avoid hitting him.

36. At the intersection of Old Southern Road and Greenwell Point Road, the white ute waited in the line of traffic in order to turn right into Greenwell Point Road. Ms Townsend, who was turning left from Greenwell Point Road into Old Southern Road, was near the white Triton ute when she heard Ms Walmsley say “We got him good”.

37. Ms Townsend also heard Mr Walmsley-Hume say “I’m not sitting in this” and “We’ve got to get out of here”. She then noticed that the ute abruptly left the line of traffic turning right, swung out onto the grass verge nearly colliding with another vehicle and turned left, driving off towards East Nowra.

The attempts to assist, and death of, Mr Hart

38. Having seen what happened, Ms Bayes-Morton and Mr Lunn stopped to do what they could for Mr Hart who was dazed and could not stand. Ms Townsend then arrived at the scene of the collision. She stopped and offered her assistance as a nurse. After receiving CPR from Ms Townsend, Mr Hart was treated by paramedics who attended the scene. He was then taken by ambulance to Shoalhaven District Memorial Hospital where he was pronounced dead a short time after the ambulance arrived at the hospital.

39. Taj Hart had suffered multiple injuries to his chest and abdomen as a result of the ute smashing into him from behind. The autopsy carried out by Dr I’ons disclosed that he suffered very significant chest injuries including, inter alia, fractures of his first and second ribs, bilateral hemopneumothoraxes, that is, blood in the chest cavity and deflation of the lungs, and a tear or laceration to one of the lobes of the lung and aspirated blood. In addition, there were severe abdominal injuries including a large laceration to his liver which had been caused effectively to disintegrate and a left renal retroperitoneal contusion which was consistent with an impact from behind the body. There was also a right external jugular vein haemorrhage.

40. The ultimate cause of death was blood loss from the liver laceration and the lung injuries leading to cardiac arrest.

After the events on 24 February 2022

41. After leaving the scene of the collision with Taj Hart on 24 February 2022, Mr Walmsley-Hume and his mother returned home to Currarong. That afternoon and night, there were discussions among family members as to what Mr Walmsley-Hume should do and Ms Walmsley remained intensely protective of her son. Steps were taken to clean the ute. Mr Walmsley-Hume told the insurer of the ute that he hit a kangaroo in order to explain how the front of that vehicle came to be damaged.

42. Three days later, on 27 February 2022, Ms Walmsley, Mr Walmsley-Hume and his girlfriend left Currarong, and commenced staying in hotels, motels or caravan parks in Dapto, Shortland, Cessnock, Patonga and Terry Hills under false names. The girlfriend left the other two and returned to the Nowra area on 29 March 2022.

43. Eventually on 7 April 2022, Ms Walmsley and Mr Walmsley-Hume were arrested at Terry Hills Caravan Park in northern Sydney.

Mr Walmsley-Hume’s basis of liability for murder

44. In light of the verdict of guilty of murder, I must, and do, find that Mr Walmsley-Hume deliberately drove at Mr Hart and killed him by hitting him with the white Triton ute. As to the intention with which those acts were done, the Crown contended that Mr Walmsley-Hume should be found to have driven at and hit Mr Hart with the intention of killing him. The offender submitted that it should be found that his intention was only to cause grievous bodily harm to the deceased rather than kill him.

45. In resolving this issue, it is significant in my view that there had been growing animosity between Mr Walmsley-Hume and Mr Hart which took on the characteristics of a feud, on the part of Mr Walmsley-Hume and his mother. There was a significant escalation in the level of animosity on and after 7 January 2022 when Mr Walmsley-Hume drove towards Mr Hart and his family members on their front lawn, narrowly missing them. Then, when his car was damaged by some of the family members, he returned with his father to the Harts’ house. Both of them were armed; Mr Walmsley-Hume with a knife and Mr Hume with an iron bar. Mr Walmsley-Hume’s animosity was such that he attempted to stab Mr Hart. It was during this attempt that Mr Walmsley-Hume received the blow which very seriously injured his left elbow.

46. Shortly after, as he was returning to the car, Mr Walmsley-Hume threatened Mr Hart saying “You’re dead” or “You’re gone”. I do not accept that such a comment amounted only to mere words without particular significance. The words indicated Mr Walmsley-Hume’s desire to have Taj Hart “dead” or “gone”. I infer that, thereafter, Mr Walmsley-Hume sought an opportunity to act on that desire.

47. Such an opportunity presented itself on 24 February 2022. On that day, Mr Walmsley-Hume and his mother were driving south on Old Southern Road towards Taj Hart’s house when they saw him walking in the opposite direction on the side of the road. I do not accept what Mr Walmsley-Hume said in evidence, that he decided to turn around and pull off the road in order to have a fight with Mr Hart and that hitting him was an accident. When he approached the location where Taj Hart was walking along the track next to the road, Mr Walmsley-Hume did not brake, but must have had his foot on the accelerator in order to maintain his speed while travelling slightly uphill across country. He steered so as to hit Mr Hart from the rear, head on with the middle of the bonnet and grill of the Triton dual cab ute travelling approximately 35 to 40 km per hour. If a person standing upright is hit directly from behind with full force by a large motor vehicle of this type travelling at that speed, fatal injury is very likely, even if not inevitable.

48. The fact that Mr Walmsley-Hume failed to stop and render assistance or even check what had occurred after the collision and did not call an ambulance, when it would have been obvious to Mr Walmsley-Hume that Mr Hart must have been at least very seriously injured, given the magnitude of the collision and the sound of the impact, indicate that his intention was to have Mr Hart die as a result of what he did.

49. The size and weight of the ute and the speed at which it was travelling off road slightly uphill with the accelerator applied to maintain the speed when it hit Taj Hart and the absence of braking or steering so as to avoid hitting him head on with the centre of the vehicle are entirely consistent with an intention to kill. In those circumstances and given all my findings including those relating to his state of mind, the fact that Mr Walmsley-Hume could possibly have significantly increased speed as he approached the deceased, but did not, does not establish a reasonable possibility that he lacked the intention to kill. An intention to kill is not necessarily negatived by the existence of other steps an offender could have taken which might have led to the death of the deceased.

50. On these bases, I am satisfied beyond reasonable doubt that Mr Walmsley-Hume’s intention on 24 February 2022 was not only to inflict really serious injury on Mr Hart but also to kill him. He wanted him “dead” or “gone”.

Ms Walmsley’s basis of liability for murder

51. As already noted, Ms Walmsley’s liability for murder depended on her being a party to a joint criminal enterprise with her son. The jury’s verdict of guilty of murder in respect of Ms Walmsley entails that the jury found beyond reasonable doubt that she and her son were parties to a joint criminal enterprise or agreement either:

52. to drive at and hit Mr Hart with the intention of killing or causing him really serious injury; or

53. to drive at Mr Hart with the intention of causing him to fear physical harm.

54. Mr Anderson of counsel, who appeared for Ms Walmsley submitted that the Court could be satisfied that Ms Walmsley was party to what he described as the “lesser agreement” to drive towards Mr Hart so as to intimidate him in the sense of causing him to fear physical harm. It was then in effect contended that, since that was a reasonable possibility, the Court could not be satisfied beyond reasonable doubt that she was party to a “more serious” agreement to drive at and hit Mr Hart with the intention of causing really serious injury. I do not accept this argument.

55. On 24 February 2022, Ms Walmsley had significant animosity towards Mr Hart and a desire for revenge against him on behalf of her son, who had been really seriously injured by him. She had previously driven around the Nowra area with her son keeping a lookout for Mr Hart and his friends. She had previously sought an opportunity for her son to inflict serious harm on Mr Hart not just to intimidate him. The interactions between Mr Walmsley-Hume and Mr Hart prior to 24 February 2022 had on occasion involved physical fighting not just intimidation. As at 24 February 2022, in my view Ms Walmsley had more than what Mr Anderson described as “some abstract wish … that something should happen to the person/s who inflicted harm on her son”. Although Ms Walmsley did not herself engage in violence vis-à-vis Mr Hart or his friends, it does not follow that she was not a party to an agreement that her son should drive at and hit Mr Hart with the intention of causing him really serious injury or killing him.

56. Given what had occurred in early January 2022 and Ms Walmsley’s desire for revenge, Taj Hart walking beside Old Southern Road on 24 February 2022 provided an opportunity to exact revenge. This was what she sought and what her son sought. This, in my view, was also the purpose for doing what they agreed to do.

57. The possibility that the jury might have accepted that Ms Walmsley’s state of mind never rose higher than a desire to intimidate Mr Hart and thus the jury might have found that she was guilty of murder on the basis of an agreement to drive at Mr Hart with the intention of causing him to fear physical harm, does not preclude my being satisfied beyond reasonable doubt that she was a party to a joint criminal enterprise to really seriously injure or kill the deceased. The findings referred to already provide adequate support for the latter conclusion. In addition, the evidence of the path and speed of the ute was inconsistent with any attempt by Ms Walmsley to steer the vehicle so as to avoid hitting Taj Hart or apply the handbrake, which might have been likely if she had agreed only to intimidate and not to injure or kill. Similarly, the failure of the offenders to stop and render assistance after the collision also supports the inference that injury and death were intended.

58. Given all my relevant findings, I am satisfied beyond reasonable doubt that Ms Walmsley was party to a joint criminal enterprise with her son to drive the white Triton ute at Mr Hart and to hit him with the intention of causing him really serious injury or killing him. Her son participated in the joint criminal enterprise by deliberately driving the ute at Mr Hart with the intention of killing him. The collision caused Mr Hart’s death. She participated in that joint criminal enterprise by being present in the vehicle and hanging out of the window trying to locate where Mr Hart was on the western side of Old Southern Road after the U-turn. Her being party to, and her continued participation in, that joint criminal enterprise were confirmed by the failure to stop and render assistance or call an ambulance, after Mr Hart was hit, and by her statement “We got him good” at the Greenwell Point Road intersection.

Objective seriousness

57. In addition to the findings already referred to, I am satisfied of the following matters relevant to the assessment of the objective seriousness of the offending.

58. The motivation for the offending was a feud-like desire for serious revenge on the part of both offenders. After the incident on 7 January 2022, Mr Walmsley-Hume and his mother were seeking an opportunity to ensure that Taj Hart got his comeuppance by leaving him “dead” or “gone”, as Mr Walmsley-Hume had threatened on 7 January 2022. Nonetheless, it was only when the offenders saw Mr Hart on 24 February 2022 and they realised that there was an opportunity to exact revenge that the joint criminal enterprise to cause him really serious injury or to kill him by hitting him with the ute crystalised. To that extent, there was no significant premeditation or planning involved in the particular circumstances of the offending.

59. Mr Walmsley-Hume, who wanted Taj Hart “dead” or “gone”, deliberately drove a considerable distance off the roadway in order to run him down. The dual cab ute was in effect a heavy weapon travelling with significant speed which was intended to collide with great force head on with the torso of the deceased from the rear. Mr Hart’s fatal injuries were caused by this direct and forceful impact.

60. At the time he was hit, Mr Hart was unaware of the offenders’ vehicle. He was hit from behind. He was in what should have been an area safe from the risk of being hit by a vehicle since he was far away from the roadway. He did not have any opportunity to take any action to move out of the path of the ute or to defend himself. He was effectively helpless. The actions which led to his death were cowardly and done in cold blood.

61. The offending took place in daylight hours when school children and their parents were in the area as a result of it being school pick-up time.

62. In respect of Mr Walmsley-Hume, the Crown submitted that the objective seriousness of his offending was within the mid-range, on the basis that his intention was to kill the deceased. The offender conceded that his offending fell in the mid-range of objective seriousness, but on the basis that he intended only to cause grievous bodily harm.

63. Having regard to all the circumstances and factors relevant to the assessment of objective seriousness of the murder, including in particular those findings that I have already mentioned but excluding matters which were personal to the offender and were not causally connected with commission of the offence, I accept that the objective seriousness of Mr Walmsley-Hume’s offending falls well into the mid-range of seriousness for the offence of murder.

64. As to Ms Walmsley, the Crown submitted that her offending also fell within the mid-range of objective seriousness on the basis that she was party to a joint criminal enterprise to drive at Mr Hart and hit him with the intention of killing him. Ms Walmsley’s submission in this regard proceeded on the basis that her offending involved being party to a joint criminal enterprise limited to “driving in an extremely dangerous manner towards the deceased in order to scare him, knowing that it was possible her son might go further”. It was then submitted that:

“Given the panoply of offending captured by s 18(1)(a) of the Crimes Act 1900 (NSW) and her somewhat attenuated culpability for the murder of Mr Hart, her offending must be assessed to fall some distance below the mid-range of objective seriousness.”

65. I have already indicated that I reject the submission that Ms Walmsley’s offending was limited in the way submitted. I have found that she was a party to a joint criminal enterprise to drive the ute at Mr Hart and hit him with the intention of causing him really serious injury or killing him and that giving effect to this enterprise led to the deceased’s death. Ms Walmsley was not the driver of the ute. Her participation was limited to trying to identify where Mr Hart was on the side of Old Southern Road after the U-turn and being present in the vehicle. Her participation and willing involvement was confirmed by her comment “We got him good” after the event. The evidence was inconsistent with her taking any steps that might have been available to avert the collision with Mr Hart. She did not have her son stop and render assistance. Indeed, her comment “We got him good” indicates approval of what occurred and a lack of any perception that it would be appropriate to stop and render assistance. Taking into account all the circumstances and factors relevant to the assessment objective seriousness, in my view, Ms Walmsley’s offending falls just below the mid-range of objective seriousness for the offence of murder.

Aggravating and mitigating circumstances

66. It was not submitted that there were aggravating factors identified in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act) that should be taken into account separately from what has been already referred to or that go beyond what was inherent in the offending. I accept that this is the case. [7]

67. The offenders raised matters personal to each of them including the following which may, in an appropriate case, be mitigating circumstances under s 21A(3) of the Sentencing Procedure Act. In respect of Ms Walmsley the factors relied on were in effect that:

68. she did not have any record of previous convictions and was a person of good character; [8] and

69. she was unlikely to reoffend and has good prospects of rehabilitation. [9]

70. As to Mr Walmsley-Hume, it was relevantly submitted that:

71. he had shown remorse for the offence; [10]

72. he demonstrated a willingness to facilitate the administration of justice by limiting the issues at trial to his intention. [11]

73. I shall consider these factors as part of each offender’s subjective case.

74. In relation to Mr Walmsley-Hume, I also note here that the Crown submitted that the Court is entitled to take into account his prior criminal history as a juvenile. The basis for this submission was said to be:

“Section 15 of the Children (Criminal Proceedings) Act 1987 precludes the Crown from leading evidence of prior findings of guilt when an offender was a child, only if no conviction was recorded and there has been a two-year crime-free period before the instant offence. Where those conditions are not met (as in this case), evidence of any other offences, whenever committed, are not subject to the prohibition otherwise contained in s. 15: [Tapueluela v R [2006] NSWCCA 113] (emphasis in original)

71. Section 15(1) of the Children (Criminal Proceedings) Act 1987 (NSW) provides:

“(1) The fact that a person has pleaded guilty to an offence in, or has been found guilty of an offence by, a court (being an offence committed when the person was a child) shall not be admitted in evidence (whether as to guilt or the imposition of any penalty) in any criminal proceedings subsequently taken against the person in respect of any other offence if—

(a) a conviction was not recorded against the person in respect of the firstmentioned offence, and

(b) the person has not, within the period of 2 years prior to the commencement of proceedings for the other offence, been subject to any judgment, sentence or order of a court whereby the person has been punished for any other offence.”

72. Mr Walmsley-Hume’s criminal history demonstrates that in August 2019, when he was 15 years old, he was dealt with in the Nowra Children’s Court on charges of destroying or damaging property and stalking or intimidating committed on 15 May 2019. In respect of both charges, a bond under s 33(1)(b) of the Children (Criminal Proceedings) Act was imposed. A bond under s 33(1)(b) can be imposed “[i]f the Children’s Court finds a person guilty of an offence”. It is not conditional on a conviction being recorded. Furthermore, under s 14 of the Children (Criminal Proceedings) Act when dealing summarily with those charges against Mr Walmsley-Hume, the Children’s Court was precluded from recording a conviction because he was under the age of 16 at the time. Section 14 relevantly provides:

“Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court—

(a) shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and

…

(2) Subsection (1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily.”

73. Consequently, a conviction could not have been recorded against Mr Walmsley-Hume in respect of that offending and the requirement in s 15(1)(a) is met. In addition, there was a crime-free period of more than two years prior to the commencement of the proceedings for the current offence and, thus, the requirement in s 15(1)(b) has also been met.

74. It follows that the evidence of Mr Walmsley-Hume having been found guilty in August 2019 of the offences I have referred to should not have been admitted in evidence. In these circumstances, I do not have any regard to that material relating to previous offending and I proceed on the basis that Mr Walmsley-Hume has no record of previous convictions and is, on that basis, a person of good character.

Mr Walmsley-Hume’s subjective circumstances

75. The material relevant to Mr Walmsley-Hume’s subjective circumstances included:

76. two reports of Dr Richard Furst, forensic psychiatrist, of 26 October 2024 and 6 March 2025;

77. a bundle of Justice Health notes concerning the offender from 10 April 2022 to 20 September 2024;

78. an affidavit of Sophie Newham of 5 March 2025 establishing that Mr Walmsley-Hume was locked in his cell all day for more than 50% of his time in custody and had no or only limited yard access on many days;

79. a Justice Health letter of 16 February 2024 recording the authorisation for Mr Walmsley-Hume’s participation in the New South Wales Opioid Treatment Program;

80. an affidavit of Tori Walmsley of 14 April 2025 setting out the offender’s background, family circumstances and time in custody;

81. a character reference dated 3 March 2025 from Scott Hume, the offender’s uncle and previous employer;

82. a letter from the offender’s brother dated 4 March 2025; and

83. a character reference dated 5 March 2025 from Anthony Campbell who has known the offender and his family for over 20 years.

84. I have taken all the information and opinions in that material into account in determining the appropriate sentence. Some of the more pertinent matters that justify specific mention include what follows.

Mr Walmsley-Hume’s background and circumstances

77. Mr Walmsley-Hume’s background and circumstances were dealt with in some detail in the reports of Dr Furst, forensic psychiatrist, and the affidavit of his aunt, Ms Tori Walmsley.

78. The offender is a 21 year old man of aboriginal heritage who was 18 years and 4 days old at the time of the murder. Before he was born, when his father, Kris Hume, found out that his mother was pregnant, his father refused to support his mother and she had to live in a car for a period. The offender’s father has played only an intermittent role in his life. For most of his life, Mr Walmsley-Hume lived in the South Coast region with his mother, who supported, and was supported by, her family and also received some support from time to time from members of his father’s family.

79. Mr Walmsley-Hume attended Callala Public School. Although he was not academically inclined there were no indications that he suffered from an intellectual disability and he was active in sports. He attended Nowra High School, Shoalhaven High School and Bomaderry High School, before being asked to leave because of non-attendance when he was 13 years of age in Year 8. The offender reported being “restless” while in class but he also reported being affected by the various drugs he was using at the time. He attended PCYC Behavioural School in Year 9 for about two weeks before he was expelled and he was expelled again about two years later following an altercation with the deceased. He did not return to high school education after Year 10.

80. In his second report, Dr Furst recorded that when attending a Youth Centre in Nowra in his early teens he was sexually assaulted by a male employee but he did not report this prior to his arrest.

81. After leaving school, he worked for a short while as a carpenter but said he “shot himself too many times with the nail gun” and had to leave. When he was about 16, the offender started working with his uncle, his father’s brother, in a steel frame construction business building sheds and similar structures. He was not working at the time of the murder including because of the injury to his left elbow caused by the deceased.

82. The offender’s drug taking began when he was about 9 or 10 years old, smoking cannabis daily. He started drinking alcohol when he was 11 years of age and using ice, or methylamphetamine, when he was about 12. While living with his father when he was 13 to 14 years of age, he injected ice and heroin with his father and was also exposed to domestic violence between his father and his father’s partner. Mr Walmsley-Hume continued to use ice, marijuana, MDMA and occasionally heroin until he was arrested in April 2022.

83. When he was 12 years of age, Mr Walmsley-Hume attended Headspace at Nowra seeing a counsellor or a psychiatrist at that time. He stated that they wanted to put him “on pills” but his mother was not happy with that assessment or recommendation and took him home. He was not prescribed stimulant, antidepressant or antipsychotic medication in his childhood or teens and has never been admitted to a psychiatric hospital. In Dr Furst’s second report he recorded that Mr Walmsley-Hume said that he had been diagnosed with schizophrenia at the age of 13 but noted it was unclear who, if anyone, made that diagnosis and it was not a diagnosis that Dr Furst reached in either of his reports.

84. Although the doctor initially diagnosed Mr Walmsley-Hume with attention deficit hyperactivity disorder, in his second report, the psychiatrist revised that opinion and stated:

“Although I initially thought those [oppositional characteristics and the decline in his application to school] were features of Attention Deficit Hyperactivity Disorder (ADHD), Dr de Souza, paediatrician, who assessed the offender in 2017, did not make a diagnosis of ADHD and noted his oppositional behaviour and truancy. In retrospect and with the disclosure of sexual abuse at the local youth club in his late childhood/early teens, I am now of the opinion that it is more likely than not his emotional and behavioural disturbance that led to his multiple suspensions and being expelled from school on three occasions was the product of emotional behavioural disturbance related to his sexual abuse victimisation, which he had not disclosed at the time.”

85. Dr Furst diagnosed Mr Walmsley-Hume as having substance use disorder in respect of cannabis, methylamphetamine and opiates.

86. Dr Furst’s opinions also included:

“… [Mr Walmsley-Hume] struggled to cope throughout his teenage years and adolescence as a consequence of his addictive disorder and the likely longer-term affects of childhood sexual abuse, which also derailed his schooling and led to problems with his social and emotional adjustment and his attitudes as a teenager.

He remained addicted to drugs, being prone to a maladaptive coping and behavioural problems when he struck and killed Taj Hart in the car he was driving in February 2022 in South Nowra.

His use of drugs, vulnerability to drug use, poor childhood role-models that normalised drug use, including his father using drugs with him when he was 13 - 14 years of age, suggest the principals of mitigation elucidated by the High Court in Bugmy apply to this offender.”

Bugmy principles

87. The Crown noted that it was contended that “the considerations espoused by the High Court in Bugmy v The Queen [(2013) 249 CLR 571, [2013] HCA 37 (Bugmy)] should be applied when the Court sentences [Mr Walmsley-Hume]” but said that any application of these considerations must be carefully balanced against the objective seriousness of the offending conduct. While there was evidence as to Mr Walmsley-Hume’s deprived background, the evidence in that regard was not all one way. His aunt’s evidence indicated that Mr Walmsley-Hume had a positive relationship with his great uncle and his grandfather and, together with the support from his mother, they allowed him to experience in some respects what his aunt described as “a good childhood”. Nonetheless, for the reasons given by Dr Furst and in light of the other negative aspects of the offender’s background and circumstances, I accept that the principles referred to in Bugmy, including in particular those at [44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ), have some, albeit limited, application in the present case. Thus, the offender’s moral culpability and his appropriateness as a vehicle for general deterrence are reduced to a certain extent.

Youth

88. Mr Walmsley-Hume was only 18 years and 4 days at the time of the offending.

89. The law recognises the potential for the cognitive, emotional and psychological immaturity of a young person to contribute to their offending and requires allowance to be made, in an appropriate case, for an offender's youth and not just their biological age. [12] In the present case, the offender had been an adult for only four days at the time of the offending. His conduct did display immaturity, absence of impulse control and poor self-regulation in the context of an ongoing situation that could be described, from Mr Walmsley-Hume’s point of view, as a feud with Mr Hart and his family and friends. The offending also involved, however, the generally adult activity of being responsible for driving a motor vehicle. Furthermore, in my view, driving a dual cab ute a significant distance off the road in order to hit an unsuspecting pedestrian is not properly to be characterised as primarily the product of youthful immaturity, especially in the circumstances of the present case.

90. I accept that Mr Walmsley-Hume’s youth is to be taken into account in this case as reducing his moral culpability to a limited extent and considerations of general deterrence and retribution may be of slightly less significance on that account. In addition, there is also a greater need to provide an opportunity for rehabilitation. Notwithstanding this, however, the nature and circumstances of the offending as part of what was effectively a feud, which involved a cowardly and cold blooded attack motivated by revenge on an unsuspecting pedestrian, mean that considerations of specific and general deterrence and denunciation still must be taken into account in a meaningful way.

Prior criminal record and character

91. For the reasons outlined in [71] - [74] above, I have proceeded on the basis of Mr Walmsley-Hume having no relevant criminal history and his being of prior good character. I have taken into account the references provided on his behalf. He is entitled to leniency on that account.

Likelihood of re-offending and prospects of rehabilitation

92. It was effectively submitted on behalf of the offender that his prospects of rehabilitation and of being unlikely to reoffend were “guarded”. This was put largely on the basis of his long-standing history of drug use and his need to engage in treatment as well as on the basis of his custodial record. I accept that Mr Walmsley-Hume’s history of drug use adversely impacts his prospects in these regards.

93. The offender has, however, been motivated to seek assistance for his drug problem and was admitted to the buprenorphine program in February 2024. The beneficial impact of this program may well be less in Mr Walmsley-Hume’s case because the Justice Health notes for September 2024 indicate that he was “using again as monthly dose not holding him”. In addition, his punishment details in custody indicate that in the last two years he has been punished for possessing an offensive weapon or instrument and creating or possessing prohibited goods.

94. Nonetheless, the offender’s youth means that there is some prospect that with treatment, counselling and appropriate guidance from respected role models, he may gain the insight needed, and develop the self-control and self-discipline, to achieve a degree of rehabilitation and to refrain from significant re-offending.

95. In all the circumstances, I agree with the offender’s submission that his prospects of rehabilitation and of being unlikely to re-offend should be assessed as guarded and this is a factor I have taken into account in determining the appropriate sentence.

Remorse

96. On the offender’s behalf, it was submitted that the court would be satisfied that he was genuinely remorseful for his conduct as reflected in the evidence he gave at trial. It was contended, in effect, that his “limited sophistication in being able to express … orally” his genuine remorse should not be held against him.

97. Under s 21A(3)(i) of the Sentencing Procedure Act Mr Walmsley-Hume’s remorse will only be a mitigating factor to be taken into account in determining an appropriate sentence if he has provided evidence that he accepts responsibility for his actions and acknowledged the injury, loss or damage caused. Mr Walmsley-Hume gave evidence in which he accepted that he drove the ute that hit and killed Mr Hart and he described that being responsible for his death made him feel “not good”. He also gave evidence of what he would say to Taj Hart’s family about their loss which demonstrated acknowledgement of injury, loss and damage suffered by them.

98. During oral submissions on sentence, it was accepted by his counsel that, while his evidence indicated he accepted responsibility for hitting Mr Hart with the ute and killing him, this was said to have been an accident. His acceptance of responsibility was effectively limited to acknowledging doing an accidental act which led to Mr Hart’s death rather than a full acknowledgement of his responsibility for the crime he had committed.

99. While Mr Walmsley-Hume’s remorse for his actions in killing Mr Hart was limited in this way, I have nonetheless taken it into account as genuine and tending to mitigate to a certain extent the appropriate sentence.

Facilitation of the administration of justice

100. It was also submitted on Mr Walmsley Hume’s behalf that he had facilitated the administration of justice by the way in which he had conducted his trial in that the matters in dispute were in effect limited to his intention. In particular, it was noted that agreed statements of fact relating to certain issues were able to be prepared and the witness list was substantially condensed from its original length. It was then submitted that, in accordance with s 22A of the Sentencing Procedure Act, the Court should impose a lesser penalty than it would otherwise impose, having regard to the degree to which the administration of justice has been facilitated. This was not submitted to be a matter that required a percentage reduction to be specified.

101. During oral submissions, it was accepted that the limitation of the matters in issue in this way might be seen as a response to the fact that in certain regards the evidence against the offender was verging on the overwhelming. Notwithstanding this, I am satisfied that there was some facilitation of the administration of justice by the offender on the basis identified. I have taken this into account in the applicant’s favour in determining the sentence but not so as to impose a sentence that would be unreasonably disproportionate to the nature and circumstances of the offence.

Onerousness of custody

102. The evidence established that the offender has been in segregation while in custody for a significant period of time and has had little or no yard access or had been locked in on many days. He has also been the subject of threats and physical attacks which were apparently related to the offending. Dr Furst was also of the opinion that his conditions in custody would be more arduous as a result of his mental conditions and the isolation and continuation of threats would be likely to cause significant anxiety and psychological distress.

103. The onerousness of custody, both past and future, for the offender is also a matter that I have taken into account in the offender’s favour in determining the appropriate sentence.

Special circumstances

104. A number of factors to which I have already referred are also relevant to the question of whether a finding of special circumstances should be made in respect of adjusting the statutory ratio of the non-parole period to the head sentence. I have been careful when considering those matters both in relation to the appropriate sentence and special circumstances not to double count the impact of those factors.

105. I am satisfied that a finding of special circumstances should be made in respect of Mr Walmsley-Hume based on his youth, the onerousness of custody as a result of his circumstances and conditions and the need for extensive supervision, treatment, counselling and support to assist in his rehabilitation when he is released to parole.

Ms Walmsley’s subjective circumstances-

106. The material relevant to Ms Walmsley’s subjective circumstances included:

107. a report of Dr Olav Nielssen, psychiatrist, of 4 February 2025;

108. a letter from Ms Walmsley’s mother, Kerri Walmsley, of 29 October 2024;

109. a letter from Ms Walmsley’s sister, Tori Walmsley Morris, of 8 April 2025;

110. a letter from Ms Walmsley’s sister, Jessica Walmsley Morris, of 8 April 2025;

111. a letter from Ms Walmsley’s son dated 8 April 2025;

112. a character reference from Rebecca Deeks dated 8 April 2025; and

113. a character reference from Carly Smallwood dated 8 April 2025.

114. I have taken all the information and opinions in that material into account in determining the sentence in her case. It is sufficient to note that the relevant matters included, without being exhaustive, what follows.

Ms Walmsley’s background and circumstances

108. The information concerning Ms Walmsley’s background and circumstances is largely derived from Dr Nielssen’s report and the information provided by family members in their letters.

109. Ms Walmsley was born in 1984 at which time she was diagnosed with talipes equinovarus, or a clubfoot. She had several operations on her foot as a child. Her mother’s relationship with her father ended soon after she was born. Ms Walmsley and her mother mostly lived with her mother’s parents at Botany until Ms Walmsley was about seven years old. At around this time, Ms Walmsley’s grandparents moved to Currarong and she and her mother moved into their own home in Maroubra. Soon after this, Ms Walmsley’s father died but she had had minimal to no involvement with him up to that point.

110. From about the age of 8, Ms Walmsley suffered petit mal epileptic seizures and grand mal seizures from the age of 10. She has been treated with medication for her epilepsy since that time.

111. Ms Walmsley’s mother eventually entered into a new relationship with the father of her three other children but after some years this partner became verbally and physically abusive towards Ms Walmsley and her mother. The situation became so difficult that Ms Walmsley went to live with her grandparents at Currarong.

112. Ms Walmsley reported being teased at school because of her clubfoot. She completed her schooling in Year 10 at Shoalhaven High School.

113. When she was about 19 years old, Ms Walmsley began a relationship with the father of her two sons, Mr Kris Hume. Their relationship was unstable and short lived with Mr Hume having a significant drug problem. From about 2012, in addition to looking after her two sons, Ms Walmsley also looked after two of her uncles and her grandparents who each suffered from significant illnesses over a number of years and passed away. Ms Walmsley had difficulty coping with the loss of loved ones during these periods.

114. Ms Walmsley said that she had worked for most of her adult life in a range of retail and hospitality jobs, at a childcare centre and in a factory.

115. Ms Walmsley drank alcohol before and after her children were born, sometimes to excess. She reported particularly heavy drinking after one of her uncles died and while her grandparents were ill and after they died. She reported starting to use cannabis at the age of 12 and regular use from the age of 16 with daily use for most of her adult life as well as some abuse of prescription opioid medication. She has also used cocaine and MDMA “on special occasions” but found that methylamphetamine triggered seizures and did not use it.

116. As to Ms Walmsley’s mental health, Dr Nielssen diagnosed her with depressive illness, cannabis use disorder and epilepsy. In particular, the psychiatrist was of the following opinions:

“The medical records show that Ms Walmsley’s epilepsy was quite unstable during the latter part of 2021. The poor control of her seizure disorder, possibly as a result of inconsistent adherence to anticonvulsant medication or the effect of taking an antidepressant medication that affected her seizure threshold, together with chronically depressed mood, is likely to have affected her judgment and decision making around the time of the offence. Entries in the medical records did not include accounts of confusion or abnormal mental states typically related to epilepsy, apart from the description of her communication in the single telephone contact soon after two seizures and falls, and there was no information to suggest that Ms Walmsley was affected by a seizure at the time of the offence itself, when she was a passenger in the vehicle driven by her son. However, the more frequent seizures in late 2021 are likely to have contributed to both anxiety symptoms and the reduced frustration tolerance referred to in the records before her arrest, and while in custody.

Her decision-making around the time of the offence is also likely to have been influenced by the nature of her relationship with her older son, who she raised as a single parent and for whom she was understandably protective, both because of the bullying he had experienced by the deceased, and to protect him from the consequences of Mr Hart’s death.”

Moral culpability and general and specific deterrence

117. It was not submitted on Ms Walmsley’s behalf that her circumstances were such as to attract the application of the principles in Bugmy v The Queen so as to reduce her moral culpability on that basis. Nonetheless, I do accept that Ms Walmsley experienced a degree of hardship as a child and effectively raised her sons as a single parent in difficult circumstances, especially after her uncles and grandparents became ill. As Dr Neilssen in substance opined, these experiences and her epilepsy serve to explain to some extent her relationship with her older son, Mr Walmsley-Hume, and why she was so protective of him in relation to his involvement with the deceased and his friends. In addition, Mr Walmsley-Hume was not under Ms Walmsley’s supervision at the time of the murder, as he would have been if, for example, he had been on a learner’s permit. These considerations tend, in my view, to reduce to a certain extent Ms Walmsley’s moral culpability and the need for specific deterrence.

118. Tending in the other direction in relation to moral culpability, however, is that fact that Ms Walmsley was a mature adult and her son was barely an adult, being only 18 years and 4 days old, at the time when they were parties to the joint criminal enterprise to really serious injure or kill the deceased in the context of a feud-like exaction of revenge. In my view, there remains a need for emphasis to be given to general deterrence and denunciation.

119. I have weighed and taken into account these matters which point in different directions when determining the appropriate sentence.

Prior criminal record and character

120. Ms Walmsley has no prior criminal record and she is of good character. Her letters from her family and her references establish that she has been hard working, devoted to her immediate and extended family and has previously made a positive contribution to society. She is entitled to leniency on those bases.

Likelihood of re-offending and prospects of rehabilitation

121. Dr Nielssen expressed his opinion in relation to Ms Walmsley’s prospects of rehabilitation as follows:

“With regards Ms Walmsley’s prospects of rehabilitation, she has no previous criminal convictions, or any pattern of antisocial behaviour other than cannabis use, and was consistently employed until the recent exacerbation of epilepsy. Moreover, this offence appears to have taken place in unique circumstances that are unlikely to recur.”

122. In custody, however, Ms Walmsley has been punished on a number of occasions for intimidation as well as other infringements.

123. Notwithstanding the issues in custody, in all the circumstances, Ms Walmsley has reasonably good prospects of rehabilitation and being unlikely to re-offend.

Remorse

124. Ms Walmsley did not give evidence and did not provide evidence that she accepted responsibility for her actions. It was not submitted on her behalf that there was a proper basis to support a finding of remorse. In these circumstances, I do not accept that she had shown remorse for the offence.

Onerousness of custody

125. I accept the submissions that Ms Walmsley’s time in custody has been and is likely in future to be more onerous as a result of her epilepsy, her history of depressive illness and by reason of the violence she has suffered while in custody which has led on occasion to a regime of strict isolation for a period of several months. This was described in some detail by Dr Nielssen in his report.

126. Dr Nielssen summarised her position in custody as follows:

“… at the time of the recent interview Ms Walmsley appeared quite depressed and to be in need of ongoing treatment for depression. Based on the entries in the medical records and her own account of her care, it seems she has received more treatment for depression in prison than prior to her arrest, including with several types of antidepressant medication prescribed by a psychiatrist, and around twelve sessions of counselling. She has also withdrawn from long term use of cannabis, which would normally improve mood. However, her treatment has not been able to overcome the reality of her situation, of an unfortunate early life, the series of bereavements, the separation from her sons and her continued concern for their welfare, and the circumstances of her detention and strict isolation because of assaults by other indigenous inmates.”

127. The past and future onerousness of custody for Ms Walmsley has a mitigatory effect on sentence.

Special circumstances

128. In light of the fact that this is Ms Walmsley’s first time in custody, her need for treatment for epilepsy and depression, and the need for significant assistance and supervision in order to reintegrate into society on her release, I find that there are special circumstances warranting a departure from the statutory ratio of the non-parole period to the head sentence.

Commencement dates

129. Both offenders were arrested on 7 April 2022 and have been in custody since that time. It is appropriate that their sentences are backdated to commence on that date.

Parity

130. In a case such as the present where two persons are to be sentenced for the same offence arising out of the same criminal conduct or enterprise, the parity principle, which is a norm of equal justice and an essential aspect of the rule of law, requires that to the extent that they are like offenders they should be treated in a like manner and, where there are different degrees of culpability and different circumstances, different sentences should be imposed to reflect those differences. [13] In addition, the parity principle is to be applied in such a way as to ensure that each offender is adequately punished for their offending. [14]

131. One of the most significant differences between the offenders in the present case is the fact that Mr Walmsley-Hume was driving the ute, and Ms Walmsley was a passenger who was not in control of the vehicle. This situation is reflected in large measure in the difference in the objective seriousness of the offending of each of them. Against this must be weighed, however, the relevant differences in the offenders’ subjective circumstances. These included most pertinently:

132. Mr Walmsley-Hume’s youth, remorse, the application, albeit limited, of the Bugmy principles in his case, his facilitation of the administration of justice but his guarded prospects of rehabilitation and not reoffending;

as compared to:

2. Ms Walmsley’s mature adulthood, lack of remorse, non-application of the Bugmy principles (although her difficult upbringing and circumstances are to be taken into account as explained above), her lack of facilitation of the administration of justice but her reasonably good prospects of rehabilitation and not offending.

3. Weighing the similarities and differences, I formed the view that the greater objective seriousness of Mr Walmsley-Hume’s offending was counterbalanced to a certain extent but not entirely by his subjective circumstances compared to the objective seriousness of Ms Walmsley’s offending and her subjective circumstances. In addition, Mr Walmsley-Hume’s special circumstances considerations justified, in my opinion, a somewhat greater reduction in the ratio of the non-parole period to the head sentence compared to that to be applied in Ms Walmsley’s case.

Victim Impact Statements

133. In addition, the Court received and heard the victim impact statements from: Ms Glanda Hart, the deceased’s grandmother; Mr Ty Bradbury, the deceased’s friend; and Ms Bayes-Morton’s daughter who witnessed the deceased being hit by the ute and then saw him as he was struggling for his life before he was taken away in the ambulance. The Crown applied for the Court to consider the impact of Mr Hart’s death as disclosed in those victim impact statements when determining an appropriate punishment for the offenders, who did not oppose this course of action.

134. It is appropriate to note here that the statements that were read to the Court made clear the extent of the harm caused by Taj Hart’s being killed by being hit by the ute in the circumstances I have already outlined. Mr Hart was described as a person whose “smile and infectious laughter brought joy to everyone around him” and who had “a bright future ahead of him, all brutally cut short”. His death has left his family feeling their lives have been “shattered”, “devastated” with grief, anger and confusion. Taj Hart was also remembered as a rare friend and true brother whose loyalty was unmatched. His loss was said to have left a hole for family and friends that will never be filled.

135. In addition, Mr Hart’s being hit and killed affected not only his family and friends but also those who witnessed the act of violence by which Mr Hart was killed, including Ms Bayes-Morton’s daughter. What should have been a normal afternoon has become for her a recurring nightmare. She has become terrified to be near roads. She has stopped going on walks. She shared her experience to emphasise the serious impact of the crime not only on herself but on others.

136. Victim impact statements may be taken into account in connection with the determination of the punishment for the offence on the basis that the harmful impact of the victim’s death on the victim’s family is an aspect of harm done to the community. [15] I consider it appropriate to do so in this case.

137. There is nothing a sentencing court can do to undo the harm caused by a murder such as this. It cannot bring a young man back and make his family whole again. Nonetheless, it is appropriate to take into account the victim impact statements that were provided to the Court so as to recognise that the harm done is an aspect of harm done to the community. The punishment for homicide does not vary according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim serve, as they do in this case, as a powerful reminder of the quality of human life itself, and all that is involved in wrongfully taking it away. [16]

Alternatives and the purposes of sentencing

138. It was not in dispute and, having considered all possible alternatives, I accept that no penalty other than imprisonment is appropriate in the case of each offender.

139. Finally, in determining the appropriate sentences, I have had regard to the purposes of sentencing stated in s 3A of the Sentencing Procedure Act. I have taken into account many of the matters I have already referred to in mitigation of the sentences to be imposed. Nonetheless, in my view, the unusual circumstances of the present case, in which a dual cab ute was deliberately used as a weapon to kill a young man in order to exact revenge, call for particular attention to be paid to the need to denounce the feud-like conduct of the offenders as unacceptable, to recognise the harm done by taking a human life in this way and to deter not only the offenders but also other persons from committing similar offences motivated by a desire for revenge. I formed the view that, given all of the those considerations and the other factors I have referred to, the sentences which I shall announce were necessary in order to ensure that the offenders were adequately punished for the offence of murder in the particular circumstances of the present case.

Additional remarks

140. Before formally announcing the sentences of the Court, it is important to acknowledge that the death of Mr Hart was a human and personal tragedy, which should not be treated only as the subject of a criminal trial and sentence proceedings. The evidence in this matter confirmed that he was a loving son and grandson, a loyal friend and a young man with a bright future. His death in such horrific circumstances has caused indescribable grief and sorrow for his family and friends and distress to all others involved.

141. The Court extends its very sincere sympathy for their loss to Mr Hart’s family and all those affected by his death.

Sentencing

142. Jayden Walmsley-Hume:

143. You are convicted of the murder of Taj Jared Hart.

144. For the murder of Taj Jared Hart, you are sentenced to imprisonment for 23 years and 6 months, made up of a non-parole period of 16 years commencing on 7 April 2022 and expiring on 6 April 2038 and a balance of term of 7 years and 6 months expiring on 6 October 2045.

145. You will first be eligible for release to parole on 6 April 2038.

146. You are informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including the offence of murder for which you have been sentenced. This means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

147. Katie Walmsley:

148. You are convicted of the murder of Taj Jared Hart.

149. For the murder of Taj Jared Hart, you are sentenced to imprisonment for 21 years and 6 months, made up of a non-parole period of 15 years commencing on 7 April 2022 and expiring on 6 April 2037 and a balance of term of 6 years and 6 months expiring on 6 October 2043.

150. You will first be eligible for release to parole on 6 April 2037.

151. You are informed of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW), which applies to “serious offences” including the offence of murder for which you have been sentenced. This means that the State can apply to the Supreme Court for an order that you continue to receive supervision or be held in detention at the end of your sentence if the Court considers you would be a “high risk offender” who poses an unacceptable risk of committing a serious offence.

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Endnotes

Crimes Act 1900 (NSW), ss 18 and 19A and Crimes (Sentencing Procedure) Act 1999 (NSW), s 21(1).

Crimes (Sentencing Procedure) Act, s 54A, Pt 4, Div 1A, Item No 1.

GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30] (Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ).

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) at [12]-[14] (Gleeson CJ, Gummow and Hayne JJ).

The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Olbrich) at [24]-[27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (Filippou) at [64] (French CJ, Bell, Keane and Nettle JJ.).

Tcpt 1 August 2024, p 768 (20-28).

A number of the aggravating factors in s 21A(2) of the Sentencing Procedure Act might be thought to have some relevance in the present case including that the offending involved the use of violence (par (b)), involved the use of a weapon (par (c)), involved substantial injury (par (g)) and involved a grave risk of death to another person (par (ib)). However, these are all matters inherent in the relevant offending and, in any event, have already been taken into account in assessing objective seriousness. They have not also been taken into account as further aggravating the offending.

Sentencing Procedure Act, s 21A(3)(e) and (f).

Sentencing Procedure Act, s 21A(3)(g) and (h).

Sentencing Procedure Act, s 21A(3)(i).

Sentencing Procedure Act, ss 21A(3)(l) and 22A.

See, for example, TM v R [2023] NSWCCA 185 at [47]-[52] (Yehia J, with Payne and Stern JJA agreeing).

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] (French CJ, Crennan and Kiefel JJ); R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [152]ff, quoted in GL v R [2022] NSWCCA 202 at [91] (Hamill J, Brereton JA and Garling J agreeing).

As required by s 3A(a) of the Sentencing Procedure Act.

See s 30E(3) of the Sentencing Procedure Act.

Adapting the words of Street CJ in R v Hill (1981) 3 A Crim R 397 at 402.

Amendments

21 August 2025

Case name amended