R v Wilkie [2025] NSWDC 299 | Case summary | Zoe

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R v Wilkie [2025] NSWDC 299 | Case summary | Zoe

One of the historical functions of our criminal law has been to discourage members of the community, including people who perceive an injustice, or perceive someone being hurt from resorting to self-help, violence and the consequent escalation of violence between members of the community: Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 at [58].
There were two events scheduled at a hotel in southern Wollongong on 12 April 2024; a pool competition and a private birthday function. One was attended by Rhys Wilkie and the other by his victim, Mr Andrews (known as ‘Ernie’). I have no idea why a number of ugly incidents occurred in the hotel that night, but those events had important and tragic consequences for two families. The offender, and Mr Andrews came together at the conclusion of one of those violent incidents, but neither were actively involved in the violence. Both, had at times, sought to calm down others and break up what was occurring. They were not the main protagonists until, quite literally, their lives collided. And, because of Wilkie’s acts, Mr Andrews died. As a consequence, Wilkie, a man who had a troubled past, but had been making genuine efforts to put that past behind him, must spend more time in custody removed from the community and removed from his family.
A judge in a matter such as this is obliged to identify all the factors that are relevant to the sentence, discuss their significance and then make a value judgment about the appropriate sentence. As Justice McHugh has explained sentencing judges should avoid giving undue emphasis to one factor above the other many purposes and reasons for a sentencing judgment. To do so, he said, could “distort” the sentencing process: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [51]. But a judge must put some focus on what occurred and the consequences of what occurred. Where mitigating circumstances arise, as the Crown submit in this matter, they can go only so far.

There are Agreed Facts before the Court. A number of people were involved in these other incidents, to which I have referred are described. I will not refer to them by name. Many behaved poorly that night. As far as I am aware none of them were charged with any offences.
On the evening of Friday 12 April 2024, a group of patrons at the hotel were celebrating a birthday. They were using a function room. That same evening the hotel ran its weekly pool competition. Mr Andrews participated in the competition. He was there with a close friend. He and his friend were regular patrons at the hotel.
Patrons of the hotel, those involved in the pool competition and those involved in the function, interacted during the evening. Some were known to each other. I am told that there was a longstanding hostility between some of them, due to an unrelated family dispute. Wilkie knew nothing about this dispute; he was there for the birthday function with family members.
At about 10.51pm there was a confrontation between some of the parties to the family dispute near the pool tables. A number of bystanders attempted to deescalate the confrontation. They were separated by those bystanders and hotel staff. Mr Andrews had got up from where he was watching and stood near the pool table group. Events escalated only a few minutes later, with a second verbal confrontation.
At about this point, the offender exited the function room along with members of the group connected with the birthday function. A pushing, shoving and verbal confrontation took place near where both Mr Andrews and Wilkie were standing. The people closest to the pool table engaged in the more violent activity but neither Mr Andrews or Wilkie were involved in that, other than trying to separate the people fighting.
The offender grabbed a person he knew and moved him to the side. Then another man came and started pushing. This ended up as a wrestle on the pool table; Wilkie and Mr Andrews were not involved.
The Agreed Facts note that as the physical confrontation at the pool table escalated, the offender, the deceased, and the sister-in-law or sister of the offender’s partner, were standing next to each other. The pool table melee moved over towards where they were standing. The offender attempted to get in between the fighting parties to separate them. This caused him to be jostled into the wall at the far side of the pool table area where he made contact with a grey-haired woman who was standing beside a lounge. Both fell towards the lounge.
Mr Andrews was standing at the edge of the melee next to the offender’s partner’s sister. She had her right elbow out and due to the jostling of the crowd it impacted Mr Andrews on his chest. From the video it appears that Mr Andrews was then pushed towards where the offender and the grey-haired woman were trying to get up out of the couch.
At this stage, the Agreed Facts note the deceased remonstrated with the sister-in-law and pushed her. She then pushed him back. He lost his footing and at that point he appears to have fallen over close to where the offender was. To my eyes, it looked like he was pushed into him. As the deceased got up from the ground he went back towards the woman and pushed her again.
It appears, from the recording, that immediately after this push occurred the offender grabbed the deceased’s collar and punched him using his right fist, immediately followed by another punch with his left hand. Both punches struck the deceased to the head around the jaw line. The offender attempted the third punch with his left fist. It did not connect because Mr Andrews was already falling to the ground. After he fell to the ground, he lay unresponsive. The offender briefly stood over him. The woman who had raised her elbow started to assist the deceased. She put him in a recovery position. The offender’s partner took the offender away and security cleared the hotel.
Mr Andrews was immediately provided First Aid. An ambulance was called and attended soon after. Mr Andrews was semi-conscious. He had suffered an injury to the back of his head. He was partially conscious. On arrival he was assessed at ‘Glasgow Coma Scale 10’. He was put in intensive care and treated for a brain injury. Despite the treatment he received the brain injury had caused him irreparable harm. He was assessed as having a poor neurological recovery with a guarded prognosis. On 1 May 2014, his family made a decision to take him off life support. He died soon after.
A postmortem examination of the deceased revealed that the cause of death was blunt force head injury and sequela. It concluded that the initial injury to the deceased’s head resulted in bifrontal and orbital cerebral contusions, brain swelling, haematomas bleeding and subarachnoid and subdural haemorrhages ensuing increased intercranial pressure and likely resulted in what is called tonsillar herniation and compression of the brain stem as well as a component of likely diffused traumatic axonal injury. In lay speak; a brain injury putting pressure on the brain which is contained in the skull down into the brain stem. An injury from which Mr Andrews never recovered.
On 15 April, prior to Mr Andrews’ death, Wilkie attended a local police station by arrangement with the officer-in-charge. He was placed under arrest. He has been in custody ever since. He consented to forensic procedures but declined to participate in an interview.

An assessment of the objective seriousness of the offence is essential in setting the parameters of an appropriate sentence. Sentences must be proportionate to what was done. The seriousness of the offending must be determined by the particular facts (to which I have referred) and the relevant legislation, here, s 25A Crimes Act and the Crimes (Sentencing Procedure) Act 1999 (NSW).
The act to be punished is the assault. Here, although there is no evidence before me of any facial injuries, it is the two blows inflicted with some force that constitute the assault. The key factor in the sentencing exercise and the section is that a death resulted from that blow. And, it would appear from all the facts and the CCTV, that the first blow rendered Mr Andrews unable to protect himself. As a consequence, his head hit the ground unrestrained resulting in a significant and ultimately fatal brain injury.
The act was, at the very least, an overreaction to any threat perceived by the offender. There was some nonexculpatory provocation, but it was extremely minor. There were two punches. It was a gross and, as it turned out deadly, overreaction.
On reflection Wilkie notes that he could have restrained the older man, or just as he had done before, got between people he thought were involved in an interaction. He now realises there are many things he could easily have done.
His behaviour was almost spontaneous. He was not intoxicated but I accept that what he did was informed by childhood incidents to which I will later refer. He was bigger, stronger and younger; mid-thirties as opposed to early sixties.
This death was an incalculable loss, but there is no suggestion that death or serious harm was intended, and the charge reflects that fact. A section 25A offence does not require proof of intention or even recklessness as to serious harm. The assault, in itself, was serious but it is the consequence that makes this matter very serious. That consequence is the primary driver of the penalty that must be imposed.
It is not a matter of mitigation that the offender neither desired nor contemplated the deceased’s death. It is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. Similarly, the absence of aggravating factors that might have resulted in a more serious charge, do not mitigate.
For the obvious reason – the death of Mr Andrews – this is a serious matter and, it is conceded, that it is so serious that a custodial sentence of some length must be imposed.

Turning now to Wilkie.
He was born in 1990. He was, as a child, convicted in the Children’s Court and spent time in juvenile detention. Those matters are relevant to his personal history. He has prior matters in the Local Court for affray, assaults and dishonesty. He spent a short time in gaol in 2016. He is not entitled to the leniency often given first offenders. It is clear that this matter, it is conceded, was not an uncharacteristic aberration, but it is important to note that there is no offending for the past, almost, ten years. It was not submitted that Veen v The Queen *(*No 2) [1988] HCA 14; (1988) 164 CLR 465 applies. Care needs to be taken in considering s 21A(2) Crimes *(*Sentencing Procedure) Act 1999 (NSW). I try not to put labels on matters. I sentence according to the concession that was made. I do not believe the record requires aggravation of the sentence to be imposed.
Wilkie has been in custody since 15 April 2024. He has no gaol infractions. He appears to be using his time in gaol productively. He has work and spends much of his time exercising.
He gave evidence in Court today and read a letter of apology to the family of the deceased and to his own family who are present. He told me he caught sight of what occurred between his partner’s sister and the deceased out of the corner of his eye, and he reacted immediately. He concedes that was a gross overreaction to what had occurred.
I have references from his partner, mother, workmates and employer. They speak of his work ethic and his sense of responsibility. They repeat the remorse he has expressed to them. They also note the regret he has for the harm he has caused the deceased’s family and his own, particularly his child. They say these charges should not define the man they know.
Wilkie has, and has had for some years, the care of his child. He was, until he went into custody, the sole carer for that child who is now with his mother. They try and see each other on a weekly basis. The child, on the material before me, is suffering because he does not have his father there to support him.
There is a report before me from a respected psychologist, Ms Duffy. It is not controversial. She notes Wilkies’ history; including exposure to physical, psychological and sexual abuse, particularly in Juvenile Justice institutions. She notes those experiences have left emotional scars and his self‑reported hypersensitivity to threats and mistreatment of others. Wilkie has responded to that concern by focusing on his health. He appears as a health focused, muscular man, consistent with his recent employment of many years running a scaffolding business.
He was exposed to domestic violence and anger when he was a young child. He was in trouble as a child. There are a number of matters in his criminal history. He met his current partner in 2019. Following Family Court Orders in 2018, he has sole had custody of his son, who, prior to coming into his father’s custody, had suffered neglect. He had settled with his son and his new partner. He had a job. He had recently purchased a house; and he had his whole life ahead of him. As, I might add, did the deceased.
There is no history of drug and alcohol abuse, and it is not suggested he was intoxicated this night.
Ms Duffy noted that Wilkie fits the diagnostic criteria for Generalised Anxiety Disorder and Post-Traumatic Disorder which she attributes to a background of significant adversity. She notes he has pro‑social attitudes and has demonstrably changed his life substantially from the man who went to gaol ten years before. She notes there are programs such as EQUIPS Aggression that he could undertake in custody or on release. He would benefit from Post-Traumatic Stress Disorder assistance to help him cope with past traumas. She notes he has several protective factors that reduce his risk of re‑offending; steady employment for ten years, purchase of a house, being the primary carer for his son, change in antisocial aspects of his early life. She notes he has matured and taken responsibility for his life and the lives of others. She says that an extended period of time in gaol could cause further him psychological damage, but more so to his son.

I was asked to find that the impact of his incarceration on his child was “exceptional” and that as a consequence, the impact on his child was an important matter in mitigation of sentence. There is a general principle is that hardship to family and dependents is an unavoidable consequence of a gaol sentence and not mitigatory, unless such hardships are wholly highly and truly exceptional: R v Edwards (1996) 90 A Crim 510.
There was evidence Wilkies’ child had been neglected before he took over his care. At the time of the offence, the child was in counselling. Wilkie was his sole carer. Positive experiences as a child can enrich life; adverse childhood experiences can have lifelong negative impacts, as they did on this offender. I was asked to apply similar considerations to those explained by McClellan CJ at CL in R v Liu [2005] NSWCCA 378 at [28].
It is time the Edwards principle was revisited in the light of important more recent decisions and other important considerations: R v Zerafa [2012] NSWSC 978; DPP *(*Cth) v Pratten (No 2) [2017] NSWCCA 42; Totaan v R [2022] NSWCCA 75. If a sole parent is gaoled it is inevitable there will be a significant disruption to the life of the child. There are risks to children because disruption to the family unit at critical times can cause lasting trauma and impact on a child’s future emotional and cognitive processes. So much is revealed by the reports now before the Court individually and by considered academic writing and reports of enquiries and Royal Commissions: Commonwealth of Australia, Australian Human Rights Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997); Parliament of Victoria, Legislative Council: Legal and Social Issues Committee, Inquiry into Children Affected by Parental Incarceration (August 2022); V Edwidge and P Gray, “Significance of Culture to Wellbeing, Healing and Rehabilitation” (2021) The Bugmy Bar Book Project 50; Commonwealth of Australia, Australian Law Reform Commission, Report 103 Same Crime, Same Time: Sentencing of Federal Offenders, (April 2006) at 6.124; A Symonds, “Children of prisoners” (2009) 21(3) Judicial Officers Bulletin 24.
Beech‑Jones J explained, in Zerafa at [141], that one difficulty with the application of this general law principle is its uncertain scope. While I must apply Edwards, what was said in relation to Commonwealth sentencing in R v Totaan is very persuasive. Further in DPP *(*Cth) v Pratten *(*No 2) [2017] NSWCCA 42 at [55] Basten JA noted, “… it does not follow that no degree of mitigation can be allowed unless the circumstances are truly exceptional”.
A sentencing judge has to take into account all relevant factors. Some may think the circumstances here are exceptional, some may disagree with that conclusion, but my focus should not be on a label ‘exceptional’, my focus should be on the impact of the father’s imprisonment on his child. Whether particular circumstances need be characterised as exceptional or unexceptional can really depend on the frame and reference within which they are expressed.
If the law in New South Wales means that I cannot take into account the circumstances of the offender’s child here, and it can have no role in the sentencing exercise, that law would be demonstrably wrong and should not be followed. But here I believe the flexibility allowed a sentencing judge, means I can take a proportionate response to all matters raised in mitigation, and the impact of Wilkies’ imprisonment on his child is one of them.

I am indebted to Mr Loosley, Solicitor for the Director, and Mr Bhutani, for Wilkie, for their comprehensive written and oral submissions, I hope this judgment does justice to them.
I have tried to refer to some of the matters raised. There are a number of matters I still need to consider in order to resolve the disputes between them.
I cannot accept the Crown submission that the blow inflicted on the deceased was an act of “retaliation”. It was not established that Wilkie was intending to retaliate for any harm that Mr Andrews had done another, because Mr Andrews had done no harm to another. Rather I accept the submission what was done was spontaneous and reactive misjudgement.
I cannot accept Mr Bhutani’s submission that what was done was in self‑defence of his partner’s sister. Again, I want to avoid putting labels on matters. Sometimes we look for labels rather than examining exactly what happened. What was done was reactive and it was grossly disproportionate. Were I to simply say this was a matter of disproportionate self‑defence, defence of another, or grossly disproportionate, I would be putting a label on the matter that really would take away from the need for close analysis of what was done, and such a label would not result in any lesser sentence.
The timeframe here was too short for the punches to be anything other than a reflex reaction to something Wilkie saw out of the corner of his eye. His brain would not have had time to process the matter and make a decision about defence of another. The offender had been pushed off balance. He saw something happening and he responded without thinking. He responded with two punches, not one. If he had thought for even a fraction of a second about what he was doing and its consequences, something else would have occurred. I cannot accept that the submission the violence in defence of another was necessary but excessive, because what was done was unnecessary, as Wilkie on calm reflection, now realises. The incident had escalated; calm reflection was not exercised when it was called for.
I have been referred to other cases and the few statistics that arise for s 25A matters. A table was part of the defence submissions: MFI 2. Thankfully there are not many s 25A cases. I have read Judge Sutherland’s useful summaries in R v Mihai [2020] NSWDC 727. But there are too few s 25A cases for any pattern to be discerned. The manslaughter authorities were not of much assistance because the offence of manslaughter is characteristically described as “protean”. I have to be concerned with the consistent application of sentencing principles. While the guidance from other courts is welcomed, each case and each offender is individual. Sentencing involves the discretionary judgment; the mix of factors a judge has to weigh in each case varies: The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 at [47]; Hili v The Queen (2010) 242 CLR 520; Barbaro v The Queen (2014) 253 CLR 58 at [74].

I will take into account all material facts. I have sought to summarise them, but there is a lot more material before me than I could not set out in this judgment, given a busy list. Some of the matters aggravate penalty, some mitigate, there are no golden rules: R v Geddes (1936) 36 SR (NSW) 554 at [555]-[556]; Markarian at [65]. Giving weight to the conflicting purposes of punishment is what makes sentencing so difficult. I cannot simply follow the wishes of the deceased’s friends and family, nor should I extend leniency to Wilkie unless, and as here, it is justified.
When one goes back to the purposes clearly enunciated by Parliament for 25A(1) offences, deterrence of others is a critical factor. A proper sentence marks the Court’s view of the seriousness of the crime. It should let other wrongdoers know the retribution which will fall upon them if they commit similar crimes: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222. But as I said earlier, no one factor should be the starting point of any sentence. While deterrence is an important factor that must be considered, it should not distort the sentencing process; which should be a synthesis of all relevant factors.
Where a death results, from an act where no one contemplated death or serious harm might occur, judges are asked to apply an impossible equation. No life can ever be equated with a period of imprisonment. No gaol term can return a loved one. And a life should never be measured by the punishment meted out to the offender, that would be to do an injustice to Mr Andrews: R v McKeown [2013] NSWDC 22 at [5].
I accept that Wilkie’s main motivation this night, as demonstrated by his, along with Mr Andrew’s, intervention in the disputes that proceeded the blow, was to prevent harm. But violence does not prevent harm, it escalates it, as the tragedies of this case demonstrate. A family and the community have lost a loved partner, father, grandfather and friend. Mr Andrews cannot enjoy his retirement or any of the pleasures that life brings. His death will leave a hole in the lives of many. The young man who caused his death, who was just setting himself up as a father, with a job and new home, and partner, must spend years in gaol. He will then be subject to a lengthy time of parole when serving his sentence in the community.
I cannot, and will not, judge those who started the fight in a public place, in a place where everyone had gone to have a good time. But all members of the community should reflect on this tragedy and learn to think before using violence to resolve petty grievances.