AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 10 March 2023

R v White

[2023] NSWSC 193

Assault & violenceHomicideFirearms & weapons
SENTENCING MURDER ONE VICTIM KILLED AND MULTIPLE INJURED

Citation: R v White [2023] NSWSC 193
Court: Supreme Court of New South Wales
Date: 10 March 2023
Judge: Ierace J

Background

The offender, a 40-year-old man, lived in a suburban street in Wyong, NSW, where his relationships with neighbours had progressively deteriorated over several years. He had developed a particular fixation on a teenage neighbour, making repeated threats and engaging in escalating confrontations. On 17 March 2020, a dispute at the front door of a neighbouring house triggered a prolonged and devastating response.

The offender returned to his home, armed himself with two rifles, and over approximately one hour fired 226 bullets into the surrounding neighbourhood. Byron Tonks, who had come to the street after his son called him fearing for his life, was killed. Pamela Dickinson and Albert Tonks were among those injured. Four residential properties were struck by gunfire, including homes where children and infants were present.

The offender was convicted by jury of murder, two counts of discharging a firearm with intent to cause grievous bodily harm, and four counts of firing a firearm into a dwelling house with reckless disregard for safety. He was also to be sentenced on six related certificate offences, including unlawful firearm possession and stalking.

  • What was the appropriate sentence for murder and the six jury-trial offences, given the gravity of the conduct?
  • What weight should be given to the offender's cognitive impairment, given there was no mental health impairment, and given the partial nexus between that impairment and the offences?
  • How should the offender's severely disturbed childhood, including exposure to violence, sexual abuse, and neglect, bear on moral culpability under the principles in Bugmy v The Queen?
  • Were special circumstances established, warranting an adjustment to the standard non-parole period ratio?
  • What credit was available for the offender's qualified remorse and his plea of not guilty by reason of mental health or cognitive impairment?

Decision

Ierace J found the offender's objective criminality to be extremely serious. The sustained nature of the shooting, the volume of ammunition discharged, the residential setting, and the presence of children and infants in the targeted homes all aggravated the offending. The murder itself involved the killing of a father who had come to the street in response to his son's distress calls.

On the question of cognitive impairment, the Court accepted that the offender did not have a mental health impairment within the statutory definition but did have a cognitive impairment, and that there was a relevant nexus between that impairment and the offending. This reduced, to some degree, his moral culpability. The offender's profoundly disturbed childhood, involving neglect, violence, and sexual abuse, was also treated as a mitigating factor consistent with the principles in Bugmy v The Queen, which recognise that the effects of severe childhood deprivation do not diminish with the passage of time.

Remorse was assessed as qualified. The offender expressed some regret but demonstrated little genuine insight into the nature and impact of his offences. Prospects of rehabilitation were found to be uncertain. The Court applied a modest reduction to sentences to account for the offender's not-guilty plea advanced on the basis of the mental health and cognitive impairment defence, consistent with the approach applicable where that defence is the only issue at trial.

Special circumstances were established on the basis of the cognitive impairment, which the Court found would necessitate a lengthy period of supervised parole to support rehabilitation and reintegration. The modification to the non-parole period ratio was described as relatively minor given the inevitable length of the non-parole period.

Orders Made

  • Aggregate term of imprisonment of 42 years, backdated to commence 17 March 2020, concluding 16 March 2062
  • Aggregate non-parole period of 30 years, with eligibility for parole on 16 March 2050
  • Indicative sentence for murder: 34 years total, non-parole period of 24 years
  • Indicative sentence for each firearm discharge count (counts 2 and 3): 14 years, non-parole period of 10 years
  • Indicative sentence for each firing into a dwelling count (counts 4 to 7): 9 years, non-parole period of 6 years and 6 months
  • Indicative sentence of 2 years for each of the six section 166 certificate offences

Key Takeaways

  • The Supreme Court confirmed that cognitive impairment, even without a concurrent mental health impairment, can reduce an offender's moral culpability at sentencing, provided a nexus between the impairment and the offending is established.
  • Under the principle in Bugmy v The Queen, the mitigating weight of a severely deprived and abusive childhood does not diminish with age. Ierace J applied this in reducing the offender's culpability, notwithstanding the extreme gravity of the conduct.
  • A not-guilty plea advanced solely on the basis of a mental health or cognitive impairment defence attracts some sentencing discount, though the Court characterised it as modest in these circumstances.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established by reference to cognitive impairment where lengthy parole supervision is required for rehabilitation, even when the non-parole period is itself very long.
  • Qualified or limited remorse, accompanied by little genuine insight into the offending, carries correspondingly limited mitigating weight in sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 4C, 19A, 21, 21A, 23A, 33A, 61, 93GA, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22A, 30E
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 28
- Firearms Act 1996 (NSW), ss 7, 36
- Criminal Procedure Act 1986 (NSW), s 166
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Royall v The Queen (1991) 172 CLR 378
- R v Supple (1870) 1 VR 151