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Supreme Court 11 October 2017

R v Weston (No 3)

[2017] NSWSC 1385

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW SENTENCE SHOOTING MURDER BY BIKIE GANG PARTNER OF BIKIE OFFICIAL STRONG SUBJECTIVE CIRCUMSTANCES NOT WORST CASE

Citation: R v Weston (No 3) [2017] NSWSC 1385
Court: Supreme Court of New South Wales
Date: 11 October 2017
Judge: Rothman J

Background

John Weston, a senior member and Sergeant-at-Arms of the Penrith Chapter of The Rebels Outlaw Motorcycle Gang, was convicted by jury of the murder of Laurence Starling on 24 July 2014. The deceased operated a custom motorcycle business on the Central Coast and had come into conflict with the gang after a dispute over a motorcycle that The Rebels had seized, believing it to be the property of a man who allegedly owed them a debt.

The deceased sought the motorcycle's return through associates connected to a rival Middle Eastern gang. This action was perceived by The Rebels as a challenge to their authority. Weston and a co-offender travelled to the Central Coast, initially intending to confront and physically assault the deceased. The confrontation ended with the deceased being shot and killed.

The sentencing proceedings, which followed the trial, were delayed by a change in Weston's legal representation. By the time sentence was handed down on 3 October 2017, Weston had been in custody for 563 days in relation to the offence.

  • Whether the offence fell within the worst category of murder, warranting a life sentence (no parole, no release under NSW law)
  • What the appropriate objective seriousness of the offence was, measured against the full range of murder offences
  • Whether there was a reasonable possibility that Weston's intention was to cause grievous bodily harm rather than to kill, and how that bore on the sentence
  • What weight to give to Weston's subjective circumstances in arriving at the final sentence
  • Whether special circumstances existed to justify a departure from the statutory ratio between non-parole period and head sentence

Decision

Rothman J opened the sentencing remarks with a detailed explanation of the sentencing process, noting that even for the most serious offence in the criminal calendar, the court must assess where particular conduct sits within the full range of murder. A life sentence is reserved for the worst category of cases, and that assessment cannot be made simply by imagining conduct that could be worse.

On the question of intent, the court found it was not satisfied beyond reasonable doubt that Weston's intention exceeded an intention to cause really serious bodily harm or grievous bodily harm. The pre-offence agreement between Weston and his co-offender, combined with the angle of entry of the gunshot wounds (suggesting the shots may have been aimed at the deceased's limbs rather than vital organs), created a reasonable possibility that no intention to kill was formed. This finding was material to the rejection of an indeterminate life sentence.

Despite that finding, the objective circumstances remained serious. The killing arose from organised gang activity, involved a planned confrontation, and constituted an execution-style response to a perceived challenge to gang authority. The court assessed the offence as well above the mid-range of murder, taking into account both its organised nature and the aggravating features under the Crimes (Sentencing Procedure) Act 1999, while also weighing the offender's subjective circumstances.

On special circumstances, the court declined to make a finding in Weston's favour. Given the length of the sentence required, the statutory ratio between non-parole period and head sentence already produced a parole period the court considered adequate. The head sentence was fixed at 34 years, with a non-parole period of 25 years and 6 months.

Orders Made

  • John Richard Weston convicted of the murder of Laurence Starling on 24 July 2014 at West Gosford, NSW
  • Sentenced to imprisonment with a non-parole period of 25 years and 6 months, commencing 18 March 2016 and concluding 17 September 2041
  • Balance of term of 8 years and 6 months, expiring 17 March 2050
  • First eligible for release on parole on 17 September 2041

Key Takeaways

  • A life sentence for murder is reserved for the worst category of cases; the Supreme Court confirmed that the assessment must be grounded in the actual features of the offence, not in a comparison with hypothetically worse scenarios.
  • Where a reasonable possibility exists that an offender intended only grievous bodily harm rather than death, that finding is relevant to whether an indeterminate life sentence is warranted, even after a jury verdict of murder.
  • The court identified the killing as well above the mid-range of seriousness, given its organised bikie gang context, the planned nature of the confrontation, and the gang's punitive motive in response to a perceived challenge to its authority.
  • Aggravating factors under ss 21A(2)(c), 21A(2)(i), and 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 were considered alongside strong subjective circumstances, illustrating that the "intuitive synthesis" process requires genuine weight to be given to both sides of the ledger.
  • No special circumstances were found; the court considered the parole period produced by the standard statutory ratio sufficient given the overall length of the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 21A(2)(i), 21A(2)(n)

Cases
- Adanguidi v R (2006) 167 A Crim R 295; [2006] NSWCCA 404
- R v Harris (2000) 50 NSWLR 409; [2000] NSWCCA 469
- R v Twala (Court of Criminal Appeal (NSW), 4 November 1994, unreported)