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Supreme Court 3 August 2012

R v C Shedden

[2012] NSWSC 854

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCE MURDER SHOTGUN DISCHARGED AT UNARMED PERSON AGGRAVATING FEATURES

Citation: R v C Shedden [2012] NSWSC 854
Court: Supreme Court of New South Wales
Date: 3 August 2012
Judge: Fullerton J

Background

The offender was convicted by jury of the murder of a 20-year-old man at Raymond Terrace, shot in the chest with a shortened shotgun at close range just after midnight on 29 June 2010. The shooting was the final act in a night of escalating violence between two groups of young men. The offender led one group and had armed himself with a loaded shortened shotgun before travelling to the scene.

The night had begun with an assault on members of the offender's group by the deceased and his companions. The offender's brother used his home as a staging point for a retaliatory armed response, summoning the offender and others. The offender assumed the leading role in planning and executing two separate armed confrontations that night.

At trial, the offender admitted discharging the shotgun but claimed self-defence. He had entered a plea of guilty to manslaughter before trial on the basis that his response to a perceived threat was excessive. The Crown did not accept that plea, and the jury rejected self-defence by returning a murder verdict.

  • What factual findings could be made for sentencing purposes, particularly regarding the deceased's armament and the offender's intent, consistently with the jury's verdict?
  • Whether the offender intended to kill the deceased or merely to cause really serious injury.
  • Whether mitigating circumstances, including the possibility that the deceased was armed, were established on the balance of probabilities.
  • Whether the standard non-parole period of 20 years for murder was an appropriate benchmark and what total sentence should be imposed.

Decision

Fullerton J found that the objective seriousness of the offending was extremely high. The offender had planned and led an armed retaliatory attack across two separate confrontations in a suburban street, culminating in the fatal shooting of an unarmed man. The court found, beyond reasonable doubt, that the deceased was not armed when he was shot, rejecting the defence submission that a finding of armament remained open on the balance of probabilities for mitigation purposes.

On the question of intent, the court was not satisfied beyond reasonable doubt that the offender discharged the shotgun with the specific intention of killing, as distinct from intending to cause really serious injury. The defence relied on the distance of the shot (6 to 8 metres), the poorly lit and volatile conditions, and the presence of multiple people at the scene. The court accepted there was sufficient doubt about intent to kill but noted this did not materially alter the gravity of the offending.

The court assessed the offender's subjective circumstances, including reports of cognitive deficits, behavioural disorder, and the long-term effects of substance abuse. However, no causative connection was established between those matters and the murder, which limited their mitigating weight. The court found no other circumstances in mitigation capable of reducing the sentence below the standard non-parole period.

Applying the High Court's approach in Muldrock v R, Fullerton J treated the standard non-parole period of 20 years as a legislative benchmark for mid-range murder offending and assessed all relevant factors. Given the very high degree of criminality, the planned and armed nature of the attack, the complete absence of effective mitigation, and the purposes of punishment, deterrence, and denunciation, a non-parole period of 20 years was appropriate.

Orders Made

  • Imprisonment for 27 years for murder, commencing 13 July 2011, comprising a non-parole period of 20 years (expiring 12 July 2031) and a balance of term of 7 years (expiring 12 July 2038).
  • Fixed term of 12 months imprisonment for possessing a shortened firearm, commencing 13 July 2011.
  • Earliest parole eligibility date: 12 July 2031.

Key Takeaways

  • The Supreme Court confirmed that factual findings made at sentence must be consistent with the jury's verdict, and any findings adverse to the offender must be proved beyond reasonable doubt.
  • Where a defendant raises a mitigating circumstance under s 21A(3)(c) of the Crimes (Sentencing Procedure) Act 1999 (such as the victim being armed), the offender bears the onus of proving that fact on the balance of probabilities. Here, the court was not satisfied the deceased was armed.
  • Applying Muldrock v R, the sentencing court treated the 20-year standard non-parole period as a statutory guidepost representing the mid-range of murder, not a mandatory minimum requiring specific departure reasons.
  • Cognitive deficits and behavioural disorders may be taken into account in the sentencing exercise, but without an established causative link to the offending they carry limited weight and do not reduce the significance of general deterrence.
  • Planning an armed retaliatory confrontation, assuming a leadership role, and discharging a firearm at an unarmed person in a residential street are features that place a murder at the very high end of objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), Div 1A of Pt 4; s 21A(3)(c)
- Evidence Act 1995 (NSW), s 128
- Firearms Act 1996 (NSW), s 62(1)(b)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- Muldrock v R [2011] HCA 39; 244 CLR 120
- R v Forbes [2011] NSWSC 1547
- R v J Shedden [2012] NSWSC 759