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Court of Criminal Appeal 12 September 2025

White v R

[2025] NSWCCA 141

HomicideFirearms & weapons
CRIME APPEALS APPEAL AGAINST CONVICTION MURDER WHERE APPLICANT FIRED 226 CARTRIDGES STANDARD OF PROOF

Citation: White v R [2025] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 12 September 2025
Judges: Price AJA (principal judgment); N Adams J agreeing; Sweeney J agreeing

Background

The applicant was convicted by jury in the Supreme Court of New South Wales of murder, two counts of discharging a firearm with intent to cause grievous bodily harm, and four counts of firing a firearm at a dwelling with reckless disregard for the safety of others. The convictions arose from a shooting on 17 March 2020 in which the applicant used two rifles to fire at a house diagonally across his street over a period of more than 45 minutes. He fired 226 cartridges in total, killing one person, injuring several others, and causing bullet damage to multiple properties and vehicles. The shooting ended when the applicant surrendered to police.

At trial, the applicant did not contest that he had committed the physical acts. The issues were whether he had established the full defence of mental health impairment or cognitive impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), or the partial defence of substantial impairment by abnormality of mind under s 23A of the Crimes Act 1900 (NSW), which would reduce a murder conviction to manslaughter. The jury rejected both defences.

The sentencing judge imposed an aggregate term of 42 years' imprisonment with a non-parole period of 30 years. The applicant sought leave to appeal against both conviction and sentence.

  • Whether the trial judge gave adequate directions to the jury on the standard of proof applicable to the partial defence of substantial impairment, specifically whether the meaning of "balance of probabilities" was sufficiently explained in that context
  • Whether the summing up adequately and fairly presented the defence case to the jury
  • Whether the sentencing judge erred in assessing the objective seriousness of the murder count as well above mid-range, and the firearm discharge counts as slightly above mid-range
  • Whether the aggregate sentence was manifestly excessive, including whether insufficient weight was given to the applicant's subjective factors
  • Whether the sentencing judge failed to give meaningful effect to a finding of special circumstances when varying the statutory ratio between the non-parole period and the parole period

Decision

Ground 1 (jury directions on balance of probabilities): The applicant accepted that the trial judge had correctly identified the balance of probabilities as the applicable standard for the partial defence, and that the term had been explained to the jury as meaning "more likely than not" in the context of the full defence of mental health impairment. The Court held that a jury thoroughly instructed on that explanation would inevitably have understood it to apply equally to the partial defence. That conclusion was reinforced by the fact that defence counsel made no objection to the directions at trial and the jury sent no note seeking clarification. The Court found no miscarriage of justice arising from the alleged failure to repeat the explanation specifically in the partial defence context.

Ground 2 (adequacy of summing up): The Court considered the summing up as a whole and found that it presented all issues raised on the applicant's behalf in a manner that enabled the jury to properly consider them. The summing up was characterised as fair, balanced, and impartial.

Grounds 3A and 3B (objective seriousness): The Court reaffirmed the principle that assessment of objective seriousness is quintessentially a matter for the sentencing judge, and that appellate intervention requires significant restraint. The Court found it was open to the sentencing judge to assess the murder as well above mid-range, noting the extraordinary scale of the shooting, the sustained duration, the number of people present including infants and children, and the applicant's clear intention to kill. The characterisation of the injuries to the two victims named in Counts 2 and 3 as "very limited" was rejected: the surrounding circumstances were described as plainly terrifying and the offending as being of a high order of seriousness. The cases relied upon by the applicant for comparison were distinguished.

Grounds 3(3), 3(4), and 4 (manifest excess, subjective factors, and special circumstances): The Court was not persuaded that any of the indicative sentences were manifestly excessive given the extraordinary seriousness of the offending. The Court accepted that a finding of special circumstances does not mandate a particular degree of adjustment to the statutory ratio, and that the modest reduction made by the sentencing judge fell within the proper exercise of sentencing discretion.

Orders Made

  • Time for leave to appeal against conviction and sentence extended
  • Leave to appeal against conviction granted; appeal dismissed
  • Leave to appeal against sentence granted; appeal dismissed

Key Takeaways

  • Where a trial judge explains "balance of probabilities" as meaning "more likely than not" in directing the jury on a full defence, the Court of Criminal Appeal may find that explanation carries over to a related partial defence directed in the same summing up, particularly where no objection was raised at trial and no jury note sought clarification.
  • No miscarriage of justice arises from a jury direction on the partial defence of substantial impairment merely because the explanation of the standard of proof was not repeated verbatim in that specific context, provided the overall directions made the applicable standard clear.
  • Assessment of the objective seriousness of an offence remains quintessentially a matter for the sentencing judge; appellate courts apply caution and restraint before substituting their own view, asking only whether the assessment was open to the judge.
  • A finding of special circumstances does not require a particular quantum of adjustment to the statutory non-parole to parole ratio; a modest reduction remains within the sentencing judge's discretion.
  • In dismissing the conviction appeal, the Court confirmed that the absence of a trial objection to jury directions and the absence of a jury note seeking clarification are relevant factors in assessing whether an alleged misdirection caused a miscarriage of justice.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18, 19A, 23A, 33A, 93GA
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 4, 5, 23A, 28, 30, Pt 3
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A, 44
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7, 36
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13
- Weapons Prohibition Act 1998 (NSW), s 7

Key Cases:
- Brawn v The King [2025] HCA 20; (2025) 99 ALJR 872
- R v Porter (1933) 55 CLR 182; [1933] HCA 1
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Haile v R (2022) 109 NSWLR 288; [2022] NSWCCA 71
- Chang v R [2016] NSWCCA 296
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- McCullough v R [2009] NSWCCA 94; (2009) 194 A Crim R 439
- Chandler v R [2022] NSWCCA 124