Citation: R v Hawkins; R v Garland (Sentence) [2024] NSWSC 80
Court: Supreme Court of New South Wales
Date: 9 February 2024
Judge: Hamill J
Background
On 9 June 2021, Stacey Klimovitch was shot dead with a shotgun at the doorway of her home in Stockton, NSW. The killing was organised by a third man, Stuart Campbell, who had a personal grievance against Mrs Klimovitch and arranged an alibi for himself. Campbell died in custody before trial.
Two other men faced separate trials arising from the same event. Hawkins was convicted by a jury of murder: the prosecution established he was the shooter. Garland was convicted of manslaughter rather than murder: the jury found he drove Hawkins to the scene but was not satisfied he knew Hawkins was armed or was party to a joint criminal enterprise to kill.
Both men appeared for sentencing together. Hamill J received victim impact statements from three of Mrs Klimovitch's daughters and her sister, as well as prosecution and defence evidence specific to each offender.
Legal Issues
- What sentence was appropriate for Hawkins, convicted of murder, including whether life imprisonment was warranted?
- What sentence was appropriate for Garland, convicted of manslaughter, given the significant disconnect between his role and the actual killing?
- How should psychiatric evidence and histories of childhood trauma and exposure to violence affect the assessment of moral culpability?
- How should totality, cumulation, concurrence, and special circumstances operate for Garland, who also faced drug offences committed around the same time?
- What weight should be given to remorse, guilty pleas, and the impact on the victim's family?
Decision
Hawkins (Murder). Hamill J characterised the murder as a cold-blooded execution of a grandmother in the doorway of her own home. The objective criminality was at the highest end. The court considered whether life imprisonment was warranted, applying a two-stage approach as required by authority (though noting some misgivings about that methodology). Ultimately, Hamill J concluded life imprisonment was not warranted on the particular facts, but the sentence imposed reflected the extreme gravity of a planned, execution-style killing.
Garland (Manslaughter). The court identified a significant dissonance between what Garland agreed to do (act as a driver) and what actually occurred (a brutal assassination). Because the jury found Garland was unaware a gun was present, his moral culpability for the death was substantially lower than Hawkins's, though still serious. Hamill J treated the manslaughter as an unlawful and dangerous act arising from participation in an enterprise that went far beyond what Garland contemplated.
Psychiatric evidence and childhood trauma. For both offenders, the court received psychiatric material and considered histories of childhood trauma and exposure to violence. Consistent with the High Court's approach in Bugmy v The Queen, the court accepted these histories had some bearing on moral culpability, though their practical weight in reducing sentence was limited given the gravity of the offending.
Garland's totality and special circumstances. Garland also faced drug offences committed around the same time. Hamill J applied principles of totality, adjusting the accumulation and concurrence of sentences to avoid a crushing overall penalty. Special circumstances were found, altering the standard ratio of non-parole period to total sentence. The court also noted Garland's belated but genuine expression of remorse, delivered directly to the victim's family from the dock in an unusual procedure, and moderated the sentence with a degree of leniency as a result.
Orders Made
Hawkins:
- Convicted of murder and sentenced accordingly (full sentence details not present in the provided text).
Garland:
- Convicted of manslaughter of Stacey Klimovitch on 9 June 2021.
- Non-parole period of 3 years, commencing 25 May 2023 and expiring 24 May 2026.
- Balance of term of 4 years, expiring 24 May 2030.
- Total effective accumulated sentence of 8.5 years, with an effective accumulated non-parole period of 4.5 years (approximately 53% of total sentence).
- Both offenders warned that the Crimes (High Risk Offenders) Act 2006 (NSW) applies.
Key Takeaways
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A jury verdict of manslaughter rather than murder, where the jury was not satisfied the driver knew a firearm was present, directly shapes the sentencing court's factual findings: aggravating features must still be proved beyond reasonable doubt, while mitigating factors rest on the balance of probabilities.
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Where an offender's agreed role in a joint criminal enterprise diverges substantially from the actuality of what occurred, that dissonance is a material consideration in assessing objective seriousness for manslaughter.
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Under the principles confirmed in Bugmy v The Queen, a history of childhood trauma and exposure to violence can reduce moral culpability, but the weight of that reduction remains sensitive to the gravity of the individual offence.
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Totality requires courts to assess the overall sentence for an offender facing multiple matters arising from roughly contemporaneous conduct, adjusting cumulation and concurrence to avoid a result that is crushing or disproportionate.
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An offender's direct address to the victim's family from the dock, where it reflects belated but genuine remorse, may be taken into account as a mitigating factor in the instinctive synthesis of sentence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 19A
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 22A, 23, 30E, 44, 61
Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Achurch v R (2014) 253 CLR 141; [2014] HCA 10
- CC v R; R v CC [2021] NSWCCA 71
- Ghamraoui v R [2009] NSWCCA 111
- R v Hawkins [2023] NSWSC 1370
- R v Hawkins; R v Garland [2023] NSWSC 1201
- R v Halloun [2014] NSWSC 1705
- R v Keleklio; R v Sinai [2022] NSWSC 62
- R v Luo; R v Liu; R v Fan; R v Bayliss [2021] NSWSC 1500
- R v MJ [2023] NSWCCA 306
- R v Farhad Quami, Mumtaz Qaumi & Jamil Quami (Sentence) [2017] NSWSC 774
- Regina v Lo [2003] NSWCCA 313