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Supreme Court 7 June 2001

R v Hyland, Parry, Yates, Powick and Wall

[2001] NSWSC 470

Assault & violenceHomicideTheft & property
REASONS FOR SENTENCE MURDER ACCESSORY AFTER THE FACT TO MURDER WHETHER WORST CASE CATEGORY

Citation: R v Hyland, Parry, Yates, Powick and Wall [2001] NSWSC 470
Court: Supreme Court of New South Wales
Date: 7 June 2001
Judge(s): Ireland AJ

Background

In the early hours of 3 October 1998, three offenders forced their way into a residential property at Wyong, armed with a revolver, a shortened shotgun, and a baseball bat. The invasion was directed at recovering an alleged debt of $20,000 connected to a recently deceased drug supplier. The occupants were subjected to sustained violence, threats, and intimidation.

During the invasion, one occupant, Alan Brown, was beaten with the baseball bat and then shot at close range behind the left ear in what the court described as an execution-style killing. Other occupants were assaulted with the bat, threatened at gunpoint, and held in terror. One of the offenders later showed a survivor the body and asked whether he wanted to be "number two."

Five offenders faced charges arising from the events. Three were charged with murder and home invasion in circumstances of special aggravation. A fourth was charged with home invasion and being an accessory after the fact to murder. The fifth was charged with accessory after the fact to murder and with inciting two persons to provide false alibis. All pleaded not guilty. Following an eleven-week trial before a jury of eleven, all were convicted on each charge.

  • Whether any of the offenders fell within the "worst case" category for murder, warranting life imprisonment
  • The appropriate head sentence and non-parole period for each offender convicted of murder, taking into account the circumstances of the offending and each offender's individual background
  • How to sentence for the home invasion charge alongside the murder charge, including the application of the totality principle
  • The appropriate sentences for the accessory after the fact and perverting the course of justice charges
  • How credit for pre-sentence custody should be applied across the various sentences

Decision

Ireland AJ found that the circumstances of the murder were of extreme gravity. The victim was beaten and then shot execution-style. The home invasion was premeditated, involved multiple offenders armed with multiple weapons, and was carried out with sustained and calculated brutality against a group of civilians who had no ability to satisfy the demands made of them. The court described the events inside the house as "horrific in the extreme."

The court determined, however, that the case did not reach the threshold for the very worst category of murder warranting life imprisonment. Each of the three murderers received lengthy determinate sentences, differentiated by their roles. The offender who fired the fatal shot and who played the most dominant role in the violence received the heaviest sentence. The offender armed with the baseball bat, present during the killing, received a lesser sentence reflecting a lower level of culpability, though still a substantial term.

For the offender who drove the vehicle and waited outside during the invasion, the court sentenced him for home invasion in circumstances of special aggravation and as an accessory after the fact to murder. His sentence was structured to commence at the conclusion of a sentence he was already serving. The offender convicted of accessory after the fact and inciting false alibis received sentences reflecting the serious interference with the administration of justice that his conduct represented.

Concurrent sentences were imposed for the home invasion charges alongside the murder sentences, consistent with the principle that the home invasion and murder arose from the same criminal episode. Pre-sentence custody was credited to each offender in calculating sentence commencement dates.

Orders Made

  • Robert Owen Parry (murder and home invasion): 26 years imprisonment for murder, commencing 23 January 2000, with a non-parole period of 19 years and 6 months (parole eligible 22 July 2019); concurrent fixed term of 11 years for home invasion, commencing 23 January 2000
  • Dean William Hyland (murder and home invasion): 23 years imprisonment for murder, commencing 10 May 1999, with a non-parole period of 17 years and 3 months (parole eligible 9 August 2016); concurrent fixed term of 11 years for home invasion, commencing 10 May 1999
  • Barry James Yates (murder and home invasion): 20 years imprisonment for murder, commencing 21 January 2001, with a non-parole period of 15 years (parole eligible 20 January 2016); concurrent fixed term of 10 years for home invasion, commencing 21 January 2001
  • Bradley Thomas Powick (home invasion and accessory after the fact to murder): 10 years imprisonment for home invasion, commencing 10 May 2002, with a non-parole period of 6 years and 6 months (parole eligible 9 November 2008); concurrent fixed term of 3 years for accessory after the fact, commencing 10 May 2002
  • Darren Russell Wall (accessory after the fact and inciting false alibis): Sentenced on those charges; specific quantum not reproduced in the available text

Key Takeaways

  • Murder arising from a premeditated, armed home invasion involving execution-style killing and sustained violence against multiple victims will attract very substantial non-parole periods, even where the court stops short of classifying the offending as the absolute worst category warranting life imprisonment.
  • Differentiation in sentence length between co-offenders convicted of the same murder reflected the court's findings about individual roles: the offender who fired the fatal shot and led the violence received the longest sentence, while the offender whose participation was more peripheral received a lesser, though still severe, term.
  • Where a home invasion and the murder committed during it form part of a single criminal episode, concurrent rather than cumulative sentences for those charges may be appropriate, consistent with the totality principle.
  • An accessory after the fact to murder who assists offenders to evade detection, and a person who incites others to provide false alibis, face significant custodial sentences, particularly where the underlying offence is as serious as murder in these circumstances.
  • Pre-sentence custody must be accounted for in fixing the commencement date of sentences, ensuring offenders receive appropriate credit for time already served.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Rushby (1977) 1 NSWLR 594
- R v Purdy (1992) A Crim R 441
- Ibbs v The Queen (1987) 163 CLR 447
- R v Holden and Johnstone (1983) 3 NSWLR 245
- R v Vusumuzi Twala (NSWCCA, 14 November 1994, unreported)
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Harris [2000] NSWCCA 469
- R v Garforth (NSWCCA, 23 May 1994, unreported)
- Pearce v The Queen (1998) 194 CLR 610