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Supreme Court 10 June 2021

R v Spinks

[2021] NSWSC 649

Homicide
CRIMINAL LAW SENTENCE MURDER PREMEDITATED SHOOTING ASSESSMENT OF OBJECTIVE CRIMINALITY AGGRAVATING AND MITIGATING FACTORS

Citation: R v Spinks [2021] NSWSC 649
Court: Supreme Court of New South Wales
Date: 10 June 2021
Judge(s): Hamill J

Background

In the early hours of 14 February 2018, the offender drove a stolen vehicle to a residential street in Unanderra and discharged a 12-gauge shotgun twice at the deceased, who was standing near his car outside a friend's home. The deceased's partner was seated in the car at the time. The deceased died from his injuries.

The two men had been friends for many years. Nine days before the shooting, the deceased, who suffered from schizophrenia, had entered the offender's home armed with a knife and threatened him, believing the offender was in a relationship with his partner. The offender made four calls to police during that incident.

At trial, the offender pleaded not guilty to murder but guilty to manslaughter, claiming he had only intended to damage the deceased's car. The jury rejected this account and, by an 11-to-1 majority, found the offender guilty of murder. The matter then proceeded to a sentencing hearing.

  • What were the objective facts of the offence for sentencing purposes, including the offender's intention at the time of the shooting?
  • How should the objective seriousness of the murder be assessed against the standard non-parole period of 20 years?
  • What aggravating factors applied to the offending?
  • What mitigating factors applied, including the prior home invasion, the offender's diagnosed post-traumatic stress disorder (PTSD), and any assistance provided to authorities?
  • What discount, if any, applied under section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) for facilitating the course of justice?
  • What was the appropriate total sentence, non-parole period, and commencement date, taking into account the principle of totality?

Decision

Hamill J was satisfied beyond reasonable doubt that the offender intended to kill the deceased at the time of the shooting. The Judge reasoned that the only rational inference from discharging a 12-gauge shotgun twice at close range (estimated at one to four metres) while directing it at the deceased was an intention to kill. The offender's claim that he meant only to damage the car was rejected, partly because he could offer no sensible explanation for why a shotgun was necessary or appropriate for that purpose.

The offence was assessed as falling above the mid-range of objective seriousness. It involved premeditation, deliberate planning (including sourcing a stolen vehicle, reconnoitring the scene, and planning a getaway), an intention to kill, and the presence of the deceased's partner as a witness. The shooting occurred in a public place and placed at least one other person at risk.

The court found several mitigating factors. The prior home invasion by the deceased, during which the offender was threatened with a knife at close quarters in front of his family, was accepted as genuinely relevant to the offender's state of mind, though it did not excuse the killing. Expert evidence established that the offender suffered from PTSD arising from that incident, which the court accepted had some, though limited, bearing on his moral culpability. A modest discount of 5 per cent was applied under section 22A for assistance provided to authorities.

Hamill J set a starting point of 22 years' imprisonment. After applying the 5 per cent discount and rounding down, the total sentence was set at 20 years and 10 months, with a non-parole period of 15 years and 7 months. The sentence was backdated to 12 August 2018 to reflect time already served and to account for the totality principle in light of other offences.

Orders Made

  • The offender was convicted of the murder of the deceased.
  • Total sentence: 20 years and 10 months' imprisonment.
  • Non-parole period: 15 years and 7 months, commencing 12 August 2018 and expiring 11 March 2034.
  • Balance of term: 5 years and 3 months, expiring 11 June 2039.
  • The offender was declared eligible for parole at the expiration of the non-parole period, with a recommendation for release on or around that date.
  • The court noted the application of the Crimes (High Risk Offenders) Act 2006 (NSW) to the offence of murder and directed the offender's lawyers to explain its possible implications.

Key Takeaways

  • Discharging a shotgun twice at close range, directed at a person, supports an inference of intent to kill sufficient to ground a murder conviction, even where the offender claims a lesser purpose.
  • The prior conduct of the deceased, including a knife-point home invasion nine days before the murder, was a legitimate mitigating factor but did not displace the gravity of a planned and premeditated killing.
  • A diagnosis of PTSD arising from a traumatic incident involving the victim can bear on moral culpability at sentencing, though its weight is constrained where the offending was substantially planned and deliberate.
  • Under section 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW), a discount for facilitating the course of justice applies even where an offender is ultimately convicted after a contested trial, provided the assistance was genuine.
  • The standard non-parole period of 20 years for murder operates as a legislative guidepost for offences in the mid-range of seriousness; premeditated, planned killings with an intention to kill are likely to attract sentences above that benchmark.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 18, 21A, 22A, 28, 54A
- Evidence Act 1995 (NSW), s 191
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
- Droudis v R [2020] NSWCCA 322
- Ghamraoui v R [2009] NSWCCA 111
- Isaacs v R (1997) 41 NSWLR 374; 90 A Crim R 587
- Milat v R; Klein v R [2014] NSWCCA 29
- R v Ancuta [2005] NSWCCA 275
- R v Feroz; R v Ho; R v Hoang; R v Nguyen; R v Trinh [2020] NSWSC 341
- R v Pilley (1991) 56 A Crim R 202
- R v Sumpton (No 4) [2015] NSWSC 684
- R v Tuala [2015] NSWCCA 8
- Z v R [2015] NSWCCA 274