Citation: R v Shephard [2020] NSWSC 141
Court: Supreme Court of New South Wales
Date: 28 February 2020
Judge: Button J
Background
The offender pleaded guilty at arraignment to two offences, each carrying a maximum penalty of life imprisonment: supplying a large commercial quantity of methylamphetamine, and murder. A third offence of knowingly dealing with the proceeds of crime was taken into account on a Form 1 (meaning it was acknowledged at sentencing without a separate conviction being recorded).
Between mid-July and late October 2017, the offender operated as an intermediate-level drug supplier in Wagga Wagga and surrounding townships, sourcing methylamphetamine from Sydney-based suppliers and on-supplying to local buyers. The total quantity supplied or agreed to be supplied was 505 grams, just above the statutory threshold for the large commercial quantity aggravated offence. The victim of the murder, a 27-year-old woman, was among those to whom he supplied the drug.
On 10 August 2017, the offender lured the victim to an isolated location near Coolamon under the pretence of supplying her with drugs. Believing she had broken into his girlfriend's home and posed some kind of threat, the offender shot her three or four times at close range with a handgun, killing her. He and an associate then buried her body in a nearby state forest. The body has never been recovered.
Legal Issues
- What sentences were appropriate for murder and large commercial drug supply, having regard to objective gravity, standard non-parole periods, and the offender's subjective circumstances?
- What discount, if any, should be applied to reflect the guilty pleas entered at arraignment?
- How should the two sentences interact structurally, including whether partial cumulation was appropriate?
- Whether special circumstances existed to justify reducing the statutory non-parole period ratio.
Decision
Button J assessed the objective gravity of both offences as extremely high. The murder was premeditated: the offender was routinely armed, produced a concealed handgun, and shot the victim multiple times with an obvious intention to kill. The offence was neither spontaneous nor the product of an emotional outburst. His Honour characterised the killing as almost "dismissive" in nature, motivated by nothing more than the offender treating the victim as an inconvenience. The failure to locate the victim's body was treated as a significant additional harm to her family.
On the drug offence, the court took judicial notice of the social harm caused by methylamphetamine, particularly in regional communities. The offender operated at an intermediate level of a supply chain and was not personally addicted to the drug, which removed any mitigating personal context sometimes relevant in such cases.
The offender tendered no subjective evidence in mitigation. No material was placed before the court regarding his background, personal circumstances, or prospects for rehabilitation. His Honour noted there was no evidence of remorse. The only mitigating factor was the guilty plea at arraignment, for which a 15% discount was applied to the starting point of each sentence.
Partial cumulation of three years was imposed between the two sentences, reflecting that the offences were related in their circumstances but were nonetheless distinct in character. Special circumstances were not found to warrant a reduction in the non-parole period ratio for either sentence, except to the limited extent necessary to preserve the statutory ratio in the context of cumulation.
Orders Made
- Conviction entered for murder.
- Conviction entered for supplying a large commercial quantity of methylamphetamine.
- For the drug offence: non-parole period of 5 years 8 months commencing 27 October 2017, followed by a parole period of 1 year 11 months expiring 26 May 2025.
- For the murder: non-parole period of 17 years 8 months commencing 27 October 2020, followed by a parole period of 6 years 11 months expiring 26 May 2045.
- Total head sentence: 27 years 7 months; total non-parole period: 20 years 8 months, fully backdated.
- Earliest possible release to parole: 26 June 2038.
- Confiscation of $10,000 cash ordered by consent.
Key Takeaways
- A guilty plea at arraignment attracted a 15% discount on the starting point for each head sentence, reflecting the utilitarian value of the early plea even where no subjective mitigating material was tendered.
- Where an offender tenders no subjective evidence and no remorse is apparent, the sentencing court has nothing to weigh in mitigation beyond the plea itself.
- Partial cumulation between sentences for murder and a serious drug offence was appropriate where the offences were connected in circumstances but distinct in nature, resulting in a three-year cumulation added to the drug sentence before the murder sentence commenced.
- The Supreme Court treated the permanent disappearance of the victim's body as a significant harm in its own right, independent of the death itself, noting the ongoing distress caused to the victim's family who cannot recover her remains.
- No special circumstances reducing the non-parole period ratio were found, though a minor adjustment was made to preserve the statutory ratio in light of the cumulation structure.
Legislation and Cases Referenced
No specific legislation or cases were cited in the portions of the judgment provided. The decision refers to the following statutory concepts:
- Maximum penalty of life imprisonment for murder (NSW)
- Standard non-parole period of 20 years for murder (NSW)
- Maximum penalty of life imprisonment for supply of large commercial quantity of a prohibited drug (NSW)
- Standard non-parole period of 15 years for that drug offence (NSW)
- Maximum penalty of 15 years for knowingly dealing with proceeds of crime (NSW)
- The statutory threshold for "large commercial quantity" of methylamphetamine (500 g), engaged here at 505 g
- Form 1 procedure for taking additional offences into account at sentencing