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Supreme Court 10 May 2024

R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth (No 2)

[2024] NSWSC 545

Homicide
C RIME SENTENCE MURDER FIVE CO OFFENDERS VERDICT AFTER TRIAL

Citation: R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth (No 2) [2024] NSWSC 545
Court: Supreme Court of New South Wales
Date: 10 May 2024
Judge: Yehia J

Background

Shane De Britt, known as "Wock," was the President of the Bandidos Outlaw Motorcycle Club, Central West Chapter. In the early hours of 14 January 2020, he was shot once to the head while lying in bed at his home and died shortly after. Five offenders were charged with his murder.

Phillip Woods was the President of the Grudge Bringers Social Club (GB), a social club that occasionally engaged in community works. Brenton Hayes was not a GB member but was closely associated with Woods and other GB members through his tattoo business. Brendan McLachlan, Jace Harding, and Brian Farnsworth were all members of the GB. In the months before the shooting, Bandidos members had waged a campaign of intimidation and violence against GB members at the direction of the deceased.

Each offender pleaded not guilty. Following a trial of approximately 12 weeks, a jury returned verdicts of guilty of murder against all five on 15 December 2023. Sentence proceedings were conducted in April 2024. A sixth co-offender, NH, had been sentenced separately on 27 April 2023 to 13 years imprisonment with a non-parole period of 8 years and 6 months, after a 50% discount from a starting point of 26 years.

  • Whether the Crown established beyond reasonable doubt that McLachlan was the shooter
  • Whether the offenders were party to a joint criminal enterprise to shoot the deceased with an intention to kill, or whether sentencing should proceed on the basis of extended joint criminal enterprise
  • Whether the offending was motivated by a desire to preserve the GB's existence, or by a genuine desire to protect themselves and their families from Bandidos violence
  • The extent to which that motivation and the Bandidos' prior conduct reduced the objective seriousness of the offence and each offender's moral culpability
  • Whether Harding was armed with a sawn-off shotgun or a .22 rifle
  • Whether Woods and Hayes were the architects of the plan and played primary roles, and whether Hayes sourced the firearms
  • Discrete subjective matters relevant to individual offenders, including hardship in custody and prospects of rehabilitation

Decision

Her Honour resolved the factual disputes applying the well-established principles from R v Isaacs (1997) 41 NSWLR 374: findings adverse to an offender must be established beyond reasonable doubt, and the facts adopted for sentencing must be consistent with the jury's verdicts. The sentencing judge is not required to adopt the view most favourable to the offender as a general rule, but any reasonable doubt must be resolved in the offender's favour.

The court sentenced all five offenders on the basis of a joint criminal enterprise to shoot the deceased with an intention to inflict grievous bodily harm, rather than an intention to kill. The court accepted that the motivation for the offending was a genuine desire to protect themselves and their associates from the ongoing campaign of intimidation and violence directed by the deceased, rather than a desire to preserve the institutional standing of the GB. This motivation was found to reduce the objective seriousness of the offence.

Woods and Hayes were treated as the primary architects of the plan, reflecting their more significant roles. McLachlan, Harding, and Farnsworth were sentenced on the basis of comparable roles to one another, resulting in identical sentence structures for those three offenders. Parity with the co-offender NH's earlier sentence was also considered. Individual subjective circumstances, including hardship in custody, were taken into account for each offender.

Orders Made

  • Phillip Woods: Non-parole period of 17 years and 6 months (commencing 22 September 2020, expiring 21 March 2038); additional term of 10 years and 6 months (expiring 21 September 2048). Total sentence: 28 years. First eligible for parole: 21 March 2038.
  • Brenton Hayes: Non-parole period of 13 years and 2 months (commencing 2 September 2020, expiring 1 November 2033); additional term of 7 years and 1 month (expiring 1 December 2040). Total sentence: 20 years and 3 months (25% combined discount applied; pre-discount starting point of 27 years). First eligible for parole: 1 November 2033.
  • Brendan McLachlan: Non-parole period of 14 years and 11 months (commencing 18 October 2020, expiring 17 September 2035); additional term of 8 years and 1 month (expiring 17 October 2043). Total sentence: 23 years. First eligible for parole: 17 September 2035.
  • Jace Harding: Non-parole period of 14 years and 11 months (commencing 30 September 2020, expiring 29 August 2035); additional term of 8 years and 1 month (expiring 29 September 2043). Total sentence: 23 years. First eligible for parole: 29 August 2035.
  • Brian Farnsworth: Non-parole period of 14 years and 11 months (commencing 3 November 2020, expiring 2 October 2035); additional term of 8 years and 1 month (expiring 2 November 2043). Total sentence: 23 years. First eligible for parole: 2 October 2035.
  • All offenders directed to be advised by their legal representatives of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW).

Key Takeaways

  • A sentencing judge following a jury verdict must sentence consistently with that verdict, resolving any factual disputes adverse to an offender only where those facts are established beyond reasonable doubt, in accordance with the principles in R v Isaacs.
  • Where multiple offenders are sentenced for the same murder, parity principles require the court to account for differences in individual roles, moral culpability, and subjective circumstances, producing sentences that reflect a coherent and justifiable relationship to one another and to any co-offenders already sentenced.
  • The court found that a genuine motive of self-protection and protection of associates from ongoing, serious violence can reduce the objective seriousness of a murder, even though it does not excuse or justify the offence.
  • Sentencing for murder under s 18(1)(a) of the Crimes Act 1900 (NSW) carries a maximum of life imprisonment and a standard non-parole period of 20 years; the sentences here ranged from approximately 20 to 28 years reflecting the different roles and culpabilities of each offender.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the sentencing court is required to note the potential application of that Act and to direct that each offender be advised of it by their legal representative.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(a)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2)(c), 21A(2)(eb), 22A, 23(1), 28(2), 61(1)

Cases
- R v Isaacs (1997) 41 NSWLR 374
- BP v R [2010] NSWCCA 159
- Charbaji v R [2019] NSWCCA 28
- DH v R [2022] NSWCCA 200
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Elmir v R [2021] NSWCCA 19
- Kochai v R [2023] NSWCCA 116
- KT v R [2008] NSWCCA 51
- Lowe v The Queen (1984) 154 CLR 606
- *Martinez v