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Supreme Court 22 March 2018

R v Carbone

[2018] NSWSC 331

Homicide
CRIMINAL LAW MURDER SENTENCE AFTER TRIAL JOINT CRIMINAL ENTERPRISE PREMEDITATED KILLING IN COMPANY ABOVE MID

Citation: R v Carbone [2018] NSWSC 331
Court: Supreme Court of New South Wales
Date: 22 March 2018
Judge: Mathews AJ

Background

The offender was convicted by jury on 12 October 2017 of the murder of Bradley Dillon, which occurred on 11 August 2014 in the car park beneath the Leichhardt Market in Sydney. The killing arose from a dispute over a $2,000 debt owed to the victim's sister by one Adriano Riccio. The victim had been attempting to recover the money on his sister's behalf, and was lured to the car park by a text message sent from a phone activated only that afternoon.

The Crown case was built on circumstantial evidence and proceeded on the basis of a joint criminal enterprise between the offender and one Antonio Bagnato. Key forensic evidence included the offender's DNA on fabric found at the scene and on the deceased's fingernail, consistent with the victim having scratched the offender. The deceased sustained three gunshot wounds and multiple stab wounds, with the gunshot injuries being the direct cause of death.

The offender declined to give evidence at trial and consistently refused to answer police questions, exercising his right to silence throughout. Bagnato fled to Thailand two days after the killing and was reportedly imprisoned there at the time of sentencing.

  • Whether the killing fell within a joint criminal enterprise to murder or cause really serious injury, or alternatively a joint enterprise to assault with the offender foreseeing the possibility of serious injury or death
  • The objective seriousness of the offence and where it fell on the sentencing spectrum for murder
  • The weight to be given to the offender's personal circumstances, including his depression, anxiety, and relative youth
  • Whether the offender had reasonably good prospects of rehabilitation

Decision

Mathews AJ was satisfied beyond reasonable doubt that the offender and Bagnato had formed a joint criminal enterprise to kill or cause really serious injury to the victim. The pre-planning was evident from the use of a purpose-activated phone to lure the victim to the car park, and the nature and extent of his injuries reinforced that conclusion. The court found the offence sat above the mid-level of objective seriousness for murder.

The court considered the medical evidence of the offender's depression and anxiety, which had been present before his arrest and would increase the hardship of his incarceration. The offender's relatively young age at the time of the offence was also taken into account as a mitigating factor relevant to rehabilitation.

No remorse had been expressed and no plea of guilty had been entered, meaning the offender received no discount on either of those bases. The court noted that, if the offender received appropriate treatment and abstained from illegal drug use, his prospects of rehabilitation were reasonably good.

Mathews AJ imposed a total sentence of 28 years, with a non-parole period of 21 years. The sentence was backdated to account for the 328 days already spent in custody prior to the offender's release on bail in November 2016.

Orders Made

  • The offender sentenced to imprisonment with a non-parole period of 21 years commencing 23 July 2015 and expiring 22 July 2036
  • An additional term of 7 years commencing 23 July 2036 and expiring 22 July 2043
  • Total sentence: 28 years
  • Earliest eligible parole date: 22 July 2036
  • The offender was warned of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW)

Key Takeaways

  • A joint criminal enterprise to murder can be established by circumstantial evidence alone, including DNA evidence, CCTV footage, call records, and the manner in which the victim was lured to the scene.
  • Pre-planning and premeditation are significant factors in placing a murder offence above the mid-level of objective seriousness, even where the offender's precise role within the enterprise cannot be fully particularised.
  • Psychiatric conditions such as depression and anxiety, while not reducing moral culpability, are relevant at sentencing as factors that increase the hardship of imprisonment.
  • Relative youth is a recognised mitigating consideration bearing on rehabilitation prospects, particularly where the offender has no entrenched criminal history and has the potential to address underlying substance use issues.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is required to warn the offender that an application for continued detention or extended supervision may be made after the expiry of the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Muldrock v R [2011] HCA 25