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Supreme Court 10 February 2023

R v Stefanato

[2023] NSWSC 73

Homicide
CRIME SENTENCE MURDER INTENT TO KILL SENSELESS AND BRUTAL OFFENDER AGED 75

Citation: R v Stefanato [2023] NSWSC 73
Court: Supreme Court of New South Wales
Date: 10 February 2023
Judge(s): R A Hulme AJ

Background

The offender, a 75-year-old Italian-born man living in Lightning Ridge, pleaded guilty to the murder of Christine Neilan on or about 8 January 2020. He also pleaded guilty to a related summary offence of possessing an unlicensed .22 calibre rifle. The offender had occupied opal mining claims and a small tourist attraction known as "Amigo's Castle," and had for years been targeted for money by a group of local people, including intravenous drug users, to whom he paid over $50,000 across the relevant period.

On the day of the murder, the victim arrived at the offender's camp and, along with another woman, asked him for money. After the other woman left with all the money on the table, the victim asked for more. The offender warned her that if she remained while he went to retrieve his rifle, he would shoot her. She stayed. He returned with the rifle and shot her in the head from point-blank range, killing her instantly.

Following the murder, the offender attempted to conceal the crime by cleaning up the scene, creating a false alibi, disposing of the victim's phone, and moving and positioning the body. He lied to police on multiple occasions over more than a year before ultimately seeking out police and making a full confession in October 2021, including participation in a walk-through interview.

  • What is the appropriate sentence for murder, taking into account the objective gravity of the offence?
  • What weight should be given to the offender's guilty plea and assistance to authorities in reducing the sentence?
  • Whether the offender's advanced age, first time in custody, and other personal circumstances constitute "special circumstances" justifying a reduction in the non-parole period below the standard ratio.
  • What is the appropriate sentence for the related unlicensed firearm possession offence?

Decision

Hulme AJ characterised the murder as senseless and brutal. The victim was defenceless and shot in the head at point-blank range with a rifle. The offender had issued a clear warning before carrying out the shooting, demonstrating deliberate intent to kill. While the offender had experienced prolonged harassment from others in the community, this context provided no legal justification or excuse. The court noted that the victim herself did not deserve to be killed, a view the offender himself acknowledged.

In mitigation, the court accepted that the offender had no significant prior criminal history and was of good character. Forensic psychologist Dr Katie Seidler's report was accepted without controversy and confirmed the offender expressed genuine and appropriate remorse. The court found the remorse to be credible. The offender's advanced age of 75 and the fact that this was his first period of custody were noted as relevant personal circumstances.

The court declined to find "special circumstances" that would justify a further reduction in the proportion of the sentence represented by the non-parole period. The factors advanced, including first time in custody and advanced age, had already been taken into account in setting the overall sentence. The court also declined to treat a comparable single-judge decision, R v Ceniccola, as a numerical benchmark, preferring instead the High Court's guidance in Hili v The Queen that consistency in the application of sentencing principles matters more than mathematical consistency between individual sentences.

For the firearm offence, the court determined that a sentence of imprisonment was not warranted and imposed a conviction without penalty.

Orders Made

  • Murder: Convicted. Sentenced to a total of 18 years and 2 months imprisonment, comprising a non-parole period of 13 years and 7 months and a balance of term of 4 years and 7 months. Sentence backdated to 18 October 2021, with parole eligibility from 17 May 2035. (Without the plea of guilty and assistance, the sentence would have been 26 years.)
  • Possess firearm without licence or permit: Convicted. No penalty imposed.

Key Takeaways

  • A total sentence of 18 years and 2 months was imposed for a premeditated, close-range shooting murder, reduced from a notional 26 years to reflect the offender's guilty plea and assistance to authorities, including a full confession and willingness to give evidence against a co-accused.
  • Genuine remorse, good character, and the absence of a significant criminal history operated as mitigating factors in the overall assessment of the sentence, even in a case of extreme objective gravity.
  • Advanced age and first-time custody status do not automatically constitute "special circumstances" under the Crimes (Sentencing Procedure) Act 1999 (NSW) where those factors have already been incorporated into the setting of the overall term.
  • Consistency in sentencing requires adherence to guiding principles rather than numerical or mathematical alignment with outcomes in individual comparable cases, following the High Court's direction in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520.
  • Where a related summary firearm offence would not, standing alone, warrant a custodial term, a conviction without penalty is the appropriate outcome.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Ceniccola [2011] NSWSC 302