Citation: R v Bidner (Sentence) [2023] NSWSC 880
Court: Supreme Court of New South Wales
Date: 27 July 2023
Judge: Wilson J
Background
The offender was charged with the murder of Shane Mears, committed on 5 July 2020 at Cessnock. The two men had a history of mutual hostility stemming from an earlier incident in April 2019, in which the offender had violently assaulted a close friend of the deceased with a pickaxe handle. The deceased learned of that assault, saw footage of it, and had made clear his intention to retaliate.
The killing occurred when both men happened to be at the Cessnock waste management facility searching for scrap metal. The offender reversed his Toyota Landcruiser into the deceased from behind while the deceased had his back turned. The rear wheel, weighing approximately 500 kilograms, passed over the deceased's back, neck, and lower skull. He died at the scene from blunt force trauma to the head and chest.
After the killing, the offender drove to his father's property, concealed the vehicle in a shed, cleaned it over three days, and removed and disposed of its distinctive tyres. He was arrested three days later, found beneath the vehicle in the process of cleaning it. He was initially charged with murder, entered a not guilty plea, and only changed his plea to guilty on the second day of trial, after receiving an expert report that did not assist his defence.
Legal Issues
- What sentence is appropriate for the murder, including the applicable discount for a late guilty plea?
- What was the degree of moral culpability, taking into account the circumstances of the killing, including the use of a motor vehicle as a weapon?
- What weight should be given to disputed factual matters, including the offender's intention at the time of the killing and the presence or absence of genuine remorse?
- How should the offender's personal circumstances (including methylamphetamine use, health issues, and absence of prior serious convictions) affect the sentence?
- What standard non-parole period applies, and how should the sentence be structured?
Decision
Wilson J found that this was a highly culpable murder. The offender used a motor vehicle as a weapon against a victim who was standing with his back turned, giving him no opportunity to defend himself or flee. While the killing was described as spontaneous and opportunistic rather than planned in advance, the offender harboured genuine hostility toward the deceased and acted with an intention to kill, not merely to cause grievous bodily harm. The absence of provocation at the time of the killing was an aggravating feature.
The post-offence conduct further elevated the seriousness of the matter. The offender spent three days concealing and cleaning the vehicle, removing evidence, and disposing of the distinctive tyres. During that same period, he encountered the deceased's daughter and offered his condolences, an act that the court would have regarded as demonstrably cynical. The offender was arrested in the act of cleaning the vehicle under his father's supervision.
On the question of remorse, the offender gave untested and unsworn evidence at the sentence hearing. The court found insufficient evidence of genuine remorse. The late guilty plea, entered only after an unhelpful expert report was received and after four witnesses had already given evidence at trial, attracted only the mandatory minimum discount of 5% under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The standard non-parole period of 20 years applied as a reference point given the circumstances of the case.
The court considered comparative sentences, including cases involving motor vehicles used to kill (such as manslaughter cases), and the offender's personal circumstances, including his history of poly-substance abuse including methylamphetamine, a heart attack and cardiovascular diagnosis following arrest, and a relatively low assessed risk of reoffending. These matters were weighed but did not substantially reduce the overall sentence, given the gravity of the offending.
Orders Made
No orders were made in this decision.
Key Takeaways
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A guilty plea entered on the second day of trial, after an adverse expert report was received, attracted only the mandatory minimum discount of 5% under s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), rather than any greater utilitarian discount.
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Using a motor vehicle as a weapon against a victim who had his back turned, with no opportunity to escape or defend himself, was found to constitute high moral culpability for the purposes of murder sentencing.
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Where an offender's evidence of remorse is given in untested and unsworn form at a sentence hearing, the court may decline to find genuine remorse established.
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Post-offence conduct, including a multi-day effort to clean and conceal the vehicle, remove distinctive tyres, and dispose of evidence, was treated as a significant aggravating feature going to moral culpability.
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Spontaneous and opportunistic killings are not necessarily lower in moral culpability: the absence of prior planning does not diminish the seriousness of the offence where the offender acts with an intention to kill and exploits a situational opportunity to do so.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 18(1)(a) (murder)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D(2)(c) (mandatory discount for late guilty plea)
Cases:
- R v Bidner [2022] NSWSC 2022
- R v Edwards (1996) 90 A Crim R 510
- R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 (principles governing adverse and favourable factual findings at sentence)
- Shaw v R [2008] NSWCCA 58
- Young v R [2009] NSWCCA 298
- Lees v R [2019] NSWCCA 65