Citation: R v Vandermade [2022] NSWDC 679
Court: District Court of New South Wales
Date: 15 December 2022
Judge(s): Buscombe DCJ
Background
The offender was tried before Buscombe DCJ and a jury on a four-count indictment arising from an incident on 8 August 2020 at Warwick Farm. The jury returned a verdict of guilty on count 1 (shooting at a person with intent to murder, contrary to s 29 of the Crimes Act 1900 (NSW)) and not guilty on count 4 (unauthorised possession of a firearm). No verdict was taken on counts 2 and 3, which were expressed as alternatives.
The Crown's case was that the offender participated in a joint criminal enterprise with three other men to ambush the victim, who was known to the offender through social media exchanges connected to their activities as rappers. The men had traded hostile comments online, which the court accepted as motive for the offender's involvement.
The ambush unfolded at approximately 9 pm when the victim drove into the covered entrance of his apartment block's carpark. CCTV footage captured the offender positioning his vehicle alongside the victim's car, two other men running toward the victim's vehicle on foot, and one of those men discharging a firearm at the victim's car as it reversed rapidly from the scene.
Legal Issues
- What facts could be found at sentence, given the jury's acquittal on the firearm possession charge alongside the conviction for shooting with intent to murder?
- What was the extent of the offender's participation in the joint criminal enterprise for sentencing purposes?
- What weight should be given to the standard non-parole period, and whether special circumstances justified a departure from it?
- How should general and personal deterrence, and the offender's mental health and custodial conditions, be weighed in formulating the sentence?
Decision
The court undertook a careful fact-finding exercise to determine the precise basis on which the offender should be sentenced, consistent with both verdicts. The acquittal on count 4 (firearm possession) was significant because the Crown had relied on the offender being the person who actually fired the weapon to prove that charge. The not-guilty verdict therefore indicated the jury was not satisfied beyond reasonable doubt that the offender was the shooter.
Buscombe DCJ rejected a narrow construction of the offender's role advanced by defence counsel on sentence, which sought to limit his participation to the moment the first shot was fired. The Crown's case on count 1, which the jury accepted, was that all four men were parties to a pre-planned agreement to ambush the victim, carry firearms, and attempt to kill him. That agreement necessarily involved planning before the shooting occurred, and the CCTV evidence of meetings between the offender and others during the afternoon was consistent with that inference.
On sentencing principles, the court confirmed that in a joint criminal enterprise each participant bears equal liability for acts carried out in furtherance of the enterprise. However, individual culpability is assessed by reference to the particular conduct of each participant. The offender's role included driving one of the vehicles used in the ambush, coordinating his movements with the other participants, and running toward the victim's vehicle during the attack.
The court found the offence to be particularly serious given the intent to murder, the discharge of a firearm, and the suburban residential setting at night. General deterrence was given significant weight. The offender's prior record for violence also attracted substantial weight to personal deterrence. The court found special circumstances, having regard to the offender's mental health and custodial conditions, and departed downward from the standard non-parole period of 10 years on that basis.
Orders Made
- The offender was sentenced to a total term of 14 years and 6 months imprisonment.
- The sentence comprises a non-parole period of 9 years and 7 months and a balance of term of 4 years and 11 months.
- The sentence commences on 3 September 2020 and expires on 2 March 2035.
- The non-parole period expires on 2 April 2030, being the earliest date the offender is eligible for release to parole (subject to the State Parole Authority).
- The offence on the certificate under s 166 of the Criminal Procedure Act was dismissed for want of evidence.
Key Takeaways
- Where a jury acquits on a charge that was expressly tied to the same factual allegation underpinning a conviction on a related count, the sentencing court must treat that acquittal as a partial rejection of the Crown's case and cannot make adverse findings inconsistent with it.
- A conviction for participation in a joint criminal enterprise does not require proof that the offender personally carried out the act that forms the gravamen of the offence, but sentencing must focus on the offender's particular conduct within the enterprise.
- The District Court confirmed that pre-ambush planning, inferred from CCTV evidence of coordinated meetings on the day of the offence, can be found as an aggravating fact beyond reasonable doubt even where the offender is not found to have been the instigator of the enterprise.
- Special circumstances, including mental health considerations and custodial conditions, can justify a departure below the standard non-parole period applicable under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Shooting with intent to murder carried out at a residential premises at night attracts significant weight to general deterrence, the court treating the maximum penalty and standard non-parole period as legislative guideposts rather than starting points.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 29 (shoot at person with intent to murder; maximum penalty 25 years; standard non-parole period 10 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
- Criminal Procedure Act 1986 (NSW), s 166
Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194