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Supreme Court 3 April 2025

R v Simon

[2025] NSWSC 309

Homicide
CRIME SENTENCE MURDER PLEA OF GUILTY WHERE CONFLICT OVER PROPERTY WHERE SPECIAL CIRCUMSTANCES

Citation: R v Simon [2025] NSWSC 309
Court: Supreme Court of New South Wales
Date: 3 April 2025
Judge: McNaughton J

Background

The offender pleaded guilty to the murder of Damien Conlon, the de facto partner of the offender's daughter, Linda Simon. The killing occurred on 9 February 2023 at a property in Oberon, New South Wales. CCTV footage captured the offender at his gun safe two days before the shooting, making statements that left no doubt as to his premeditated intent. At the moment of the fatal shot, the offender said "bye bye Damien."

The killing arose from a dispute over a family property arrangement. The offender's father had transferred a house in Oberon to the offender before his death in 2021. The offender then transferred that property to Linda Simon under a "Granny Flat Agreement," which entitled him to reside on the property in a granny flat to be built within 18 months. Construction was delayed by planning issues, and tensions escalated. In January 2023, Linda Simon served the offender with a notice to vacate the property by 6 February 2023 to allow renovations to commence.

The offender admitted to the shooting immediately after it occurred and pleaded guilty at the Bathurst Local Court on 12 June 2024. He was committed to the Supreme Court for sentencing. The sentencing hearing ran over three part-days in November 2024 and February 2025.

  • Whether a life sentence should be imposed under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW), on the basis that the offender's culpability was so extreme that community interests in retribution, punishment, protection, and deterrence could only be met by that sentence
  • What weight to give the offender's plea of guilty, and whether the full 25% discount under s 25F of the Crimes (Sentencing Procedure) Act 1999 should apply
  • Whether special circumstances existed, justifying a departure from the standard ratio between the non-parole period and the total sentence
  • How mitigating factors, including the offender's age, diagnosed PTSD, and personal circumstances, should be weighed against the objective seriousness of the offence

Decision

McNaughton J declined to impose a life sentence. While the Crown pressed for the maximum penalty, the court was not satisfied that the offender's culpability reached the extreme threshold required by s 61(1) of the Crimes (Sentencing Procedure) Act 1999. That threshold demands that community interests in retribution, punishment, community protection, and deterrence can only be met through a life sentence, a bar the court found was not met in this case.

The court addressed the 25% guilty plea discount under s 25F. McNaughton J considered whether the full discount was appropriate given the strength of the Crown case, including CCTV footage showing the offender's stated intention to kill two days before the shooting. The judgment reflects that the discount was considered as part of the overall sentencing exercise, alongside the standard non-parole period of 20 years prescribed by statute for murder.

Special circumstances were found to exist, justifying a longer-than-standard additional term. The court noted the offender's age, his diagnosed PTSD (which provided partial context for the circumstances leading to the killing, though it did not substantially reduce the gravity of the offence), and the need for an extended period of supervised release to support rehabilitation. McNaughton J emphasised that while the offender's advanced age and the likelihood that he would spend a very substantial portion of his remaining life in custody were weighty considerations, they could not justify an erroneously lenient outcome. The principles of denunciation, just punishment, and both specific and general deterrence remained prominent.

The court imposed a total sentence of 31 years, with a non-parole period of 22 years commencing on 9 February 2023.

Orders Made

  • The offender was sentenced to 31 years' imprisonment for the murder of Damien Conlon
  • Non-parole period of 22 years, commencing 9 February 2023 and ending 8 February 2045
  • Additional term of 9 years, commencing 9 February 2045 and ending 8 February 2054
  • The court noted the offence is a "serious violence offence" under s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW) and directed the offender's legal advisers to inform him of the potential legal consequences at the conclusion of the sentence

Key Takeaways

  • A life sentence under s 61(1) of the Crimes (Sentencing Procedure) Act 1999 requires a finding that the offender's culpability is so extreme that no other sentence can satisfy the community's interests in retribution, punishment, protection, and deterrence. The Supreme Court held that threshold was not met here, despite the premeditated and deliberate nature of the killing.
  • Premeditation supported by CCTV evidence of intent expressed two days before the killing was treated as a significant aggravating factor in assessing objective seriousness, even where a plea of guilty was entered.
  • A diagnosis of PTSD, while relevant to the context in which an offence occurred, reduced the weight of sentencing factors such as general deterrence and denunciation only "to a modest degree" on the facts of this case.
  • Where special circumstances are found, the court may impose a non-parole period that departs from the standard ratio, providing a longer additional term to facilitate supervised rehabilitation, particularly where the offender is elderly and likely to serve a substantial portion of the remainder of their life in custody.
  • Under the Crimes (High Risk Offenders) Act 2006 (NSW), murder is classified as a "serious violence offence," carrying potential consequences at the end of the sentence that do not arise from the sentence itself.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 19A (murder, maximum penalty of life imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21, 25F(2), 30E, 54A, 61
- Crimes (High Risk Offenders) Act 2006 (NSW), s 5A
- Evidence Act 1995 (NSW), s 4

Cases
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mahmood v Western Australia (2008) 232 CLR 397
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Geraghty v R [2023] NSWCCA 47
- Ney v R [2023] NSWCCA 252
- Nguyen v R [2015] NSWCCA 268
- Rogerson v R; McNamara v R [2021] NSWCCA 160
- R v Harris [2000] NSWCCA 469
- R v Merritt [2004] NSWCCA 19; (2004) 59 NSWLR 557
- R v Mark Lewis [2001] NSWCCA 448
- R v Uzabeaga [2000] NSWCCA 381
- R v Hawkins; R v Garland (Sentence) [2024] NSWSC 80
- R v Parkes (No 3) [2024] NSWSC 910
- R v Pettiford (Sentence) [2024] NSWSC 319
- R v Ney [2021] NSWSC 529
- R v A1 (No. 6) [2019] NSWSC 1581
- R v Weston (No 3) [2017] NSWSC 1385
- R v Rolfe [2017] NSWSC 1393