AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 13 December 2018

R v Dunstall (No 4)

[2018] NSWSC 1923

HomicideFraud & dishonesty
SENTENCE TWO OFFENCES OF DISHONESTY ON FORM 1 CONSIDERATION OF LIFE SENTENCE DETERMINATE SENTENCE IMPOSED

Citation: R v Dunstall (No 4) [2018] NSWSC 1923
Court: Supreme Court of New South Wales
Date: 13 December 2018
Judge: Button J

Background

The offender was convicted by jury of the murder of John Gasovski on 9 June 2014 at Budderoo, near the Southern Highlands of New South Wales. The offender had been running an elaborate fraud on a network of drug criminals, falsely claiming he could facilitate the supply of a large quantity of cannabis from Canberra and collecting $45,000 in facilitation fees for a product that did not exist.

The deceased was a peripheral figure in that criminal network, employed as a general hand and driver. He had been drawn into criminality after a failed speculative investment left him in financial difficulty. He had no knowledge of the fraud and trusted the offender completely.

Facing mounting pressure from investors to deliver on the non-existent deal, the offender devised a plan to murder the deceased, then falsely claim the cannabis had been delivered but stolen or misappropriated. He armed himself in Wagga Wagga and drove at least four hours to meet the deceased at Sutton Forest service centre, carrying out the premeditated killing that evening.

  • What sentence was appropriate for the murder, having regard to its objective and subjective features?
  • Whether a life sentence without possibility of parole should be imposed.
  • How the standard non-parole period of 20 years should function as a guidepost in the exercise of sentencing discretion.
  • How two additional dishonesty offences on a Form 1 (taken into account without separate conviction) should be reflected in the sentence.
  • What weight to give to the absence of remorse, where the offender maintained his innocence.

Decision

Button J identified the murder as a premeditated, cold-blooded killing committed with a firearm in order to protect money. The planning commenced before the offender left Wagga Wagga, and not even being pulled over by Highway Patrol shortly before the murder diverted him from his purpose. The judge found the offender had misled an innocent and unsuspecting victim into believing the meeting was legitimate, exploiting that trust to carry out the killing.

His Honour weighed the maximum penalty of life imprisonment and the standard non-parole period of 20 years as important guideposts, ultimately concluding that a life sentence was not warranted in the circumstances but that a substantial determinate sentence was required. Button J took into account the offender's lengthy prior criminal record, which included offences of deception and a prior offence of soliciting murder, as aggravating features.

The offender maintained his innocence and expressed no remorse. Button J treated the absence of remorse as a neutral factor, noting it could not be held against an offender who genuinely denied guilt, while acknowledging there was correspondingly no basis to reduce the sentence on that account. The victim impact statement from the deceased's widow was accepted as properly reflecting the serious harm inflicted on the family and, more broadly, on Australian society.

Button J concluded that premeditated murder committed coldly with a firearm to protect money has a corrosive effect on society's valuation of human life, and that the criminal justice system was required to respond with a sentence of due severity. The two Form 1 dishonesty offences were taken into account in arriving at the overall sentence.

Orders Made

  • The offender was convicted of murder.
  • A head sentence of 32 years imprisonment was imposed.
  • A non-parole period of 24 years was imposed, commencing 12 May 2015.
  • A parole period of 8 years to follow, commencing 12 May 2039 and expiring 11 May 2047.
  • The earliest date of eligibility for release to parole is 11 May 2039.

Key Takeaways

  • The Supreme Court treated the maximum penalty of life imprisonment and the standard non-parole period of 20 years each as "important guideposts" in the exercise of sentencing discretion, without either operating as a mandatory outcome.
  • A prior criminal record including soliciting murder was treated as a significant aggravating factor in sentencing for a later murder conviction.
  • Where an offender maintains innocence after conviction and expresses no remorse, the absence of remorse is treated as a neutral consideration rather than an aggravating one; it simply means no discount is available.
  • Premeditated murder committed with a firearm to protect money, against an innocent victim who trusted the offender, was characterised as having a seriously harmful and corrosive effect on Australian society, justifying a sentence of substantial severity.
  • Victim impact evidence was accepted as relevant to sentencing under the applicable statutory framework, reflecting harm caused both to the immediate family and to the community more broadly.

Legislation and Cases Referenced

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

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146