Citation: R v NH [2023] NSWSC 428
Court: Supreme Court of New South Wales
Date: 27 April 2023
Judge: Yehia J
Background
The offender, referred to as NH due to suppression orders, pleaded guilty to the murder of the President of the Bandidos Central West Chapter, who was shot while lying in his bed. The killing arose from tensions between the Bandidos motorcycle club and a self-styled motorcycle club called the Grudge Bringers, founded by a co-accused, Phillip Woods. NH was a former member of the Grudge Bringers and a close associate of two of the alleged principal instigators.
NH's liability arose from participation in a joint criminal enterprise. He did not fire the weapon himself but intentionally assisted or encouraged the actual shooter. The firearm used was a self-loading shotgun, and the killing was planned in advance. Several co-accused pleaded not guilty and were awaiting trial at the time of sentencing.
NH was arrested on 28 August 2020 and pleaded guilty at an early stage of the proceedings. He also provided assistance to authorities, which formed part of his subjective case at sentence.
Legal Issues
- What was the appropriate objective gravity of NH's offending, given his role in the joint criminal enterprise compared to the alleged instigators and the actual shooter?
- What discount was warranted for the utilitarian value of an early guilty plea?
- How should NH's assistance to authorities, remorse, and serious health conditions (including a diagnosis of cancer with a poor prognosis) affect the sentence?
- Whether special circumstances existed to justify a departure from the statutory non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- Whether the emotional harm to the deceased's family constituted an aggravating factor under s 21A(2)(l) of that Act?
Decision
Yehia J found that the murder was objectively serious. The deceased was shot in his bed, the offence was planned, and it was carried out in the context of organised group activity involving firearms that had been stored and test-fired in advance. However, the court assessed NH's role as significantly lesser than that of Woods and Hayes, who were identified as the instigators and drivers of the plan. NH was also not the shooter, which placed his culpability below that of the alleged gunman, McLachlan.
The court applied a 25% discount for the utilitarian value of NH's early guilty plea. The plea, combined with other material, also demonstrated significant remorse. NH's assistance to authorities was given weight as a separate mitigating factor, both in reducing the sentence and in contributing to the finding of special circumstances justifying a non-parole period shorter than the statutory ratio would otherwise require.
On the family impact statements, Yehia J acknowledged the considerable and lasting distress caused to the deceased's family but declined to treat it as an aggravating factor under s 21A(2)(l). The court observed that murder, by its nature, frequently involves the death of a much-loved person, and the evidence did not establish the kind of harm that would elevate the case beyond that.
Special circumstances were found on the combined basis of NH's cancer diagnosis and poor prognosis (which would make custody more onerous), the impact of his assistance to authorities on his conditions in custody, good prospects of rehabilitation, and the need for a longer parole period to manage reintegration and reduce the risk of institutionalisation. The undiscounted starting point was 26 years imprisonment, which was then reduced to a total term of 13 years after all discounts were applied.
Orders Made
- NH was convicted of murder.
- Sentenced to a total term of 13 years imprisonment, comprising:
- Non-parole period of 8 years and 6 months, commencing 28 August 2020 and expiring 27 February 2029.
- Balance of term of 4 years and 6 months, expiring 27 August 2033.
- NH is eligible for release to parole on 27 February 2029.
- The undiscounted sentence was recorded as 26 years imprisonment.
- Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the court noted that Act's potential application to NH and directed his legal representatives to advise him accordingly.
Key Takeaways
- In a joint criminal enterprise for murder, a participant who did not fire the weapon and played a lesser role than the instigators will be assessed at a lower level of culpability, though the offence remains one of the gravest in the criminal calendar.
- A 25% discount for an early guilty plea was appropriate where the plea was entered at a genuinely early stage, and where it, together with other material, demonstrated significant remorse.
- Terminal illness and a poor prognosis can constitute special circumstances justifying a departure from the statutory non-parole period ratio, on the basis that custody will be more onerous and a longer parole period may be needed to manage reintegration.
- Emotional harm to a murder victim's family, while properly acknowledged on sentence, does not automatically constitute an aggravating factor under s 21A(2)(l) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The evidence must establish harm beyond that which ordinarily accompanies the offence.
- Assistance provided to authorities operates both as a mitigating factor going to the length of the sentence and as a basis contributing to special circumstances, where that assistance has ongoing implications for the offender's conditions in custody.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 316(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(l), 23(1), 61(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Firearms Act 1996 (NSW), s 7A(1)
- Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (NSW)
Cases:
- Charbaji v R [2019] NSWCCA 28
- DS v R; DM v R [2022] NSWCCA 156
- Lowe v The Queen (1984) 154 CLR 606
- Martinez v R [2022] NSWCCA 12
- R v Merritt (2004) 59 NSWLR 557
- Tepania v R [2018] NSWCCA 247
- Versluys v R [2008] NSWCCA 76