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Supreme Court 6 October 2020

R v Stone

[2020] NSWSC 1485

Homicide
CRIME SENTENCING MURDER DECEASED SET ON FIRE TWICE SECOND TIME TO "FINISH HIM OFF" UPPER RANGE OF OBJECTIVE SERIOUSNESS

Citation: R v Stone [2020] NSWSC 1485
Court: Supreme Court of New South Wales
Date: 6 October 2020
Judge: R A Hulme J

Background

The offender (referred to by the pseudonym "Mr Stone") pleaded guilty to the murder of a man at Whitebridge, New South Wales, on 20 August 2018. The victim, referred to as Mr Wade Still, died in circumstances that Hulme J described as unusual, extremely inhumane, and utterly senseless, with no rational motive apparent from the evidence.

In the days before the killing, a dispute arose involving a stolen bag. The offender and another man feared being blamed for the theft, and a witness recalled the offender saying the victim "should be knocked." On the night of the murder, the offender arranged to meet the victim under the pretence of helping him locate a car trailer, asking him to bring petrol ostensibly for a dirt bike.

The two men rode together on the bike to an isolated quarry area, approximately 250 metres into bush. There, two separate incidents occurred involving petrol and fire. The first, the offender claimed, was accidental. The second was not: the offender returned to the scene and deliberately set the victim alight a second time, later telling police he did so to "finish him off."

  • What was the appropriate assessment of the objective seriousness of the offending?
  • Whether the offender's pre-murder statement that the victim "should be knocked" demonstrated a premeditated intention to kill, and could be taken into account on sentence?
  • Whether the first fire incident was deliberate or accidental, and how that affected the sentencing analysis?
  • Whether the offender demonstrated genuine remorse?
  • What discount was appropriate for an early guilty plea combined with an undertaking to provide future assistance to authorities?

Decision

Objective seriousness. Hulme J placed the offending in the upper range of objective seriousness. The method of killing involved two separate acts of setting the victim alight. The second act was clearly deliberate: the offender returned to a victim who had already been set on fire and ignited him again with the express purpose of ensuring he died. The court found this conduct to be particularly inhumane, regardless of whether the first fire was accidental.

The prior statement and first incident. The court found that the offender did say, days before the murder, that the victim "should be knocked." However, the court was not satisfied beyond reasonable doubt that this reflected a seriously formed intention to kill at that time, and so did not take it into account adversely. As to the first fire incident, the court was troubled by aspects of the offender's account, including his explanation for travelling 250 metres into dark bushland to refuel a bike. The court was ultimately satisfied that the offender deliberately caused petrol to ignite on the victim, but retained a reasonable doubt that this was premeditated rather than a spur-of-the-moment act. The second fire incident, however, admitted of no such doubt.

Remorse. The court accepted that the offender's remorse was genuine. This finding was relevant to the overall sentencing assessment, though the court's reasoning on remorse is not expanded in the available extract.

Discount for plea and assistance. The court applied a combined discount of 35% to reflect the offender's early guilty plea and his undertaking to provide future assistance to authorities. The court noted that it would have preferred to treat these two factors separately, but current sentencing law precluded that approach, as the only basis to reduce a plea discount is the offender's level of culpability. The notional starting sentence of 36 years was reduced to a total term of 23 years and 4 months as a result.

Orders Made

  • Convicted of murder.
  • Sentenced to imprisonment with a non-parole period of 17 years and 6 months and a balance of term of 5 years and 10 months (total sentence: 23 years and 4 months).
  • Sentence to date from 21 August 2018.
  • Eligible for parole on 20 February 2036.
  • The total sentence represents a 35% reduction from a notional sentence of 36 years, on account of the early guilty plea and future assistance to authorities.

Key Takeaways

  • Returning to a burning victim and deliberately setting him alight a second time to "finish him off" placed the offending firmly in the upper range of objective seriousness for murder, even where the first fire incident remained factually uncertain.
  • A prior statement by the offender that the deceased "should be knocked" was accepted as having been made, but the Supreme Court declined to treat it as evidence of a preconceived intention to kill, given insufficient background context and the requirement that aggravating matters be proved beyond reasonable doubt.
  • Where an offender pleads guilty early and also undertakes to provide future assistance to authorities, the court must apply a single combined discount rather than treating the two matters separately, as any reduction to a plea discount can only be justified by the offender's level of culpability.
  • Genuine remorse operated as a mitigating factor in the sentencing exercise, alongside the early guilty plea and the assistance undertaking.
  • The standard non-parole period applicable in this case was 20 years; the non-parole period actually imposed was 17 years and 6 months, reflecting the significant discounts applied.

Legislation and Cases Referenced

No specific legislation or cases were cited in the metadata or the available judgment text. The court referred to general sentencing principles, including the standard non-parole period for murder (20 years in the circumstances of this case) and the maximum penalty of life imprisonment.