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Supreme Court 11 November 2022

R v Crane & Ors

[2022] NSWSC 1545

Assault & violenceHomicide
CRIME SENTENCING MURDER ACCESSORIES BEFORE THE FACT

Citation: R v Crane & Ors [2022] NSWSC 1545
Court: Supreme Court of New South Wales
Date: 11 November 2022
Judge: Fagan J

Background

In June 2017, Clint Starkey died in hospital nine weeks after being severely bashed at a service station at Peats Ridge on the NSW Central Coast. Four men attacked him on the night of 5 April 2017, kicking and stomping his head, neck and body in an assault lasting approximately 30 seconds. He never regained consciousness.

The attack grew out of a personal conflict between one of the offenders and the deceased, both residents of the Mangrove Mountain area. All six offenders were members of the Peninsula Chapter of the Rebels outlaw motorcycle gang. Following a confrontation at a local general store days earlier, one offender used his seniority within the gang to mobilise others to locate and confront the deceased.

Following a joint trial over 35 sitting days, a jury returned verdicts in July 2022. Five offenders were convicted of murder and one of manslaughter. The matter came before Fagan J for sentencing.

  • What sentences were appropriate for three principal offenders convicted of murder on the basis of extended joint criminal enterprise, having foreseen the possibility that a participant would intentionally inflict grievous bodily harm?
  • What sentences were appropriate for two offenders convicted of murder as accessories before the fact, who counselled, procured and assisted the principals?
  • What sentence was appropriate for the offender convicted of manslaughter by unlawful and dangerous act, whose foresight of harm was assessed at a lower level than that of the principals?
  • Whether the standard non-parole period of 20 years (applicable to the principal offenders convicted of murder) applied equally to accessories before the fact convicted of murder.
  • How should the differing degrees of criminal responsibility among co-offenders be reflected in the sentences imposed?

Decision

Fagan J sentenced all six offenders to finite terms of imprisonment, finding that the circumstances did not warrant the maximum penalty of life imprisonment for any of them. The three principal assailants convicted of murder faced a standard non-parole period of 20 years under the Crimes (Sentencing Procedure) Act 1999 (NSW), which the court treated as a reference point when assessing their individual sentences. Consistent with Aoun v R [2007] NSWCCA 292, that standard non-parole period did not apply to the two accessories before the fact.

The court drew a clear distinction between the two brothers convicted as accessories. One had orchestrated the attack through his seniority in the gang and his direct recruitment of the assailants, while the other played a materially lesser role. Fagan J emphasised that allocation of criminal responsibility rested on the precise detail of each offender's actions, resulting in substantially different sentences between the two.

For the offender convicted of manslaughter, the court applied the principles from Wilson v The Queen (1992) 174 CLR 313 and Miller v The Queen (2016) 259 CLR 380. The court was satisfied that this offender had joined an enterprise for an unlawful battery of a kind that a reasonable person would recognise as carrying an appreciable risk of serious injury, but his foresight did not extend to the intentional infliction of grievous bodily harm. His culpability was therefore assessed as lower than that of the principals convicted of murder.

Fagan J also noted that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to each offender upon completion of their sentence, a matter left for counsel to explain to their respective clients.

Orders Made

Adam Symons (murder): 18 years imprisonment from 31 October 2017; non-parole period of 12 years expiring 30 October 2029; balance of term expiring 30 October 2035.

Beau McDonald (murder): 17 years and 6 months imprisonment from 8 September 2018; non-parole period of 11 years and 6 months expiring 7 March 2030; balance of term expiring 7 March 2036.

Guy Robertson (murder): 19 years imprisonment from 21 December 2017; non-parole period of 13 years expiring 20 December 2030; balance of term expiring 20 December 2036.

Jake McDonough (manslaughter): 7 years and 6 months imprisonment from 20 March 2018; non-parole period of 5 years expiring 19 March 2023; balance of term expiring 19 September 2025.

Colin Crane (murder, accessory before the fact): 16 years imprisonment from 8 April 2019; non-parole period of 10 years and 9 months expiring 7 January 2030; balance of term expiring 7 April 2035.

James Crane (murder, accessory before the fact): 6 years imprisonment from 28 January 2020; non-parole period of 4 years expiring 27 January 2024; balance of term expiring 27 January 2026.

All offenders: The Crimes (High Risk Offenders) Act 2006 (NSW) applies to each offender upon completion of their sentence.

Key Takeaways

  • The standard non-parole period of 20 years for murder under the Crimes (Sentencing Procedure) Act 1999 (NSW) does not apply to accessories before the fact convicted of murder, consistent with the Court of Criminal Appeal's reasoning in Aoun v R [2007] NSWCCA 292.

  • A participant in a joint criminal enterprise who foresees only that the enterprise carries an appreciable risk of serious injury (rather than foreseeing the possibility of intentional infliction of grievous bodily harm) may be convicted of manslaughter rather than murder, reflecting a materially lower level of culpability at sentencing.

  • Where multiple co-offenders face sentencing together, the court assesses each offender's criminal responsibility by reference to the precise nature and extent of their individual conduct, resulting in significantly differentiated sentences even among those sharing the same legal classification (such as accessories before the fact).

  • Membership of and seniority within an outlaw motorcycle gang, and the capacity to mobilise gang members at short notice to act in a conflict, are features the sentencing court treats as relevant to the assessment of an offender's influence and culpability.

  • The Crimes (High Risk Offenders) Act 2006 (NSW) was noted as applicable to all offenders upon completion of their sentences, covering both murder and manslaughter convictions.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 346 (accessories before the fact)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21, 54A, 61
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Aoun v R [2007] NSWCCA 292
- Miller v The Queen (2016) 259 CLR 380; [2016] HCA 30
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31