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Supreme Court 3 December 2003

REGINA v WIGNEY

[2003] NSWSC 1136

HomicideDrugsTheft & propertyFirearms & weapons
SENTENCING MURDER NO MATTER OF PRINCIPLE

Citation: Regina v Wigney [2003] NSWSC 1136
Court: Supreme Court of New South Wales
Date: 3 December 2003
Judge(s): Adams J

Background

The offender, Shane John Wigney, pleaded guilty to the murder of Mark Jackson and to a separate armed robbery. Both offences occurred in July 2001 and involved the same .45 calibre Colt semi-automatic pistol. The offender committed each offence to fund a drug addiction, and the court also took five additional matters into consideration on a Form 1.

The murder arose from an armed hold-up at the Taverners Hill Hotel in Leichhardt in the early hours of 19 July 2001. After being struck with a bar stool and fleeing the hotel, the offender was pursued onto the footpath by Mr Jackson, an off-duty night manager. During a brief struggle, the offender fired two shots, one of which struck Mr Jackson in the chest. Mr Jackson died later that morning at Royal Prince Alfred Hospital.

The armed robbery charge related to a separate hold-up at a Hurlestone Park kebab shop on 11 July 2001, during which the offender also discharged the same firearm. Ballistic examination confirmed the weapon used in both incidents was identical.

  • What sentence was appropriate for the murder, having regard to the offender's guilty plea, his cooperation with police, his drug addiction, his criminal history, and the objective gravity of the offence?
  • What sentence was appropriate for the armed robbery, including the Form 1 matters?
  • How should the two sentences be structured (concurrently or cumulatively) so that the total did not exceed the overall criminality of the offending?
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999?

Decision

Adams J characterised the murder as objectively very serious. The offender had voluntarily armed himself with a loaded pistol to commit a robbery, creating obvious and grave risks to human life. The shooting of Mr Jackson, who was acting in defence of his employer's property, was a tragic consequence of that decision. The court found no basis to treat the killing as other than deliberate in the sense required for murder under s 18 of the Crimes Act 1900.

In mitigation, the court gave significant weight to the offender's guilty plea and, in particular, to his voluntary confession to police on 15 August 2001, before any charges had been laid for the murder. The offender had expressed genuine remorse and agreed to give evidence against his co-accused. The court also acknowledged the offender's serious drug addiction as context, though not as an excuse. His criminal history was noted as an aggravating factor.

For the murder sentence, Adams J found special circumstances existed to justify departing from the standard non-parole ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999. The reasons included the accumulation of sentences and the likelihood that a substantial portion of the sentence would be served on protection, which would make access to rehabilitation programmes more limited.

The court structured the sentences to be largely cumulative rather than concurrent, on the basis that the armed robbery and the murder were distinct and serious crimes not properly treated as a single episode. However, partial concurrency was applied to ensure the total sentence reflected the overall criminality without exceeding it.

Orders Made

  • Armed robbery (including Form 1 matters): sentenced to 6 years imprisonment, with a non-parole period of 4 years and 6 months, commencing 10 August 2001 and expiring 9 February 2006; balance of term to expire 9 August 2007.
  • Murder of Mark Jackson: sentenced to 13 years and 8 months imprisonment, with a non-parole period of 8 years and 6 months, commencing 10 August 2004 and expiring 9 February 2013; balance of term to expire 9 April 2018.
  • Total effective sentence: 16 years and 8 months imprisonment, with a total non-parole period of 11 years and 6 months, commencing from the date of arrest on 10 August 2001.

Key Takeaways

  • A voluntary and unsolicited confession to police, made before charges were laid and accompanied by a re-enactment at the scene, was treated as significant mitigating conduct warranting a meaningful sentencing discount.
  • Where an offender pleads guilty to both murder and a separate armed robbery committed within a short period, the sentences need not be treated as concurrent simply because the offences share common elements; distinct criminality calls for at least partial accumulation.
  • Special circumstances within the meaning of the Crimes (Sentencing Procedure) Act 1999 can be established by the combination of accumulated sentences and the practical impact of serving time on protection, which limits access to rehabilitative programmes.
  • The Supreme Court confirmed that arming oneself with a loaded firearm to conduct a robbery is a powerful aggravating factor for the murder that follows, regardless of whether the fatal shot was fired in the course of a struggle.
  • Substantial drug addiction was treated as background context in assessing moral culpability, but did not significantly diminish the objective gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18 (definition of murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 13A, 23(3), 44

Cases:
- R v Crump (unreported, NSWCCA, 30 May 1993)
- R v Mills (unreported, NSWCCA, 3 April 1995)
- R v Irani [2002] 153
- R v Petrinovic [2001] NSWCCA 118
- R v Previtera (1997) A Crim R 76
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Petroff (unreported, NSWSC, 12 November 1991)
- Veen v The Queen (No 2) (1988) 164 CLR 465