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Supreme Court 15 July 2025

R v Stanley

[2025] NSWSC 735

Homicide
CRIME SENTENCE MULTIPLE DISPUTES OF FACT AD HOC EXPERTISE CONFIRMATION BIAS SIGNIFICANTLY LESSER ROLE THAN THE CO

Citation: R v Stanley [2025] NSWSC 735
Court: Supreme Court of New South Wales
Date: 15 July 2025
Judge: Yehia J

Background

The offender, born in October 2002, was 18 years old when a man was fatally shot in the early hours of 2 August 2021 at a residential address in Wellington, New South Wales. The offender, together with two others, approached the address with the apparent intention of committing a robbery. One of those others, Titan Gilkes, was armed with a firearm and discharged it through the front door of the premises. The shot struck the deceased in the lower left leg, and he died from cardiac arrest caused by blood loss while being transported to hospital.

The offender pleaded guilty on indictment to murder on 8 May 2025, approximately two months before his trial was due to commence. The basis of liability was constructive murder: the offender's participation in an attempted armed robbery (the foundational offence) made him criminally responsible for the death caused during the commission of that offence, even though Gilkes fired the weapon and neither man knew the deceased was standing directly behind the door.

A co-offender, Titan Gilkes, had already been sentenced by Hamill J in February 2025, receiving a non-parole period of 9 years and 6 months with a 25% discount for his guilty plea. The offender's sentencing proceeded before Yehia J on 15 July 2025.

  • Whether the offender was entitled to a discount for the utilitarian value of his guilty plea, and the appropriate quantum of that discount
  • How to resolve several disputed facts relevant to the objective seriousness of the offence, including when the offender became aware Gilkes was armed, when the agreement to commit the foundational offence arose, and what words were spoken before the firearm was discharged
  • Whether voice recognition evidence based on repeated listening to telephone intercept recordings and CCTV footage was admissible under s 79 of the Evidence Act 1995 (NSW), and whether the reliability of such evidence is relevant to admissibility
  • How to assess the offender's moral culpability relative to his co-offender, including his significantly lesser role
  • The weight to be given to the offender's background of deprivation and disadvantage, youth, mental health conditions, and substance abuse when fixing the appropriate sentence
  • Whether special circumstances existed to justify a variation in the ratio between the non-parole period and the balance of term

Decision

Guilty plea discount. Yehia J accepted that the offender was entitled to a 10% discount reflecting the utilitarian value of his plea under s 25D(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The plea was entered nearly two months before the trial was to commence, which limited the discount available compared with the 25% received by his co-offender Gilkes, who had pleaded guilty at an earlier stage.

Disputed facts. Several factual disputes required resolution before objective seriousness could be assessed. These included the timing of the offender's awareness that Gilkes was armed and when the agreement to rob arose. The Crown bore the burden of proving any aggravating facts beyond reasonable doubt; the offender bore the burden of establishing favourable facts on the balance of probabilities. One contested area concerned voice recognition evidence, where a witness claimed to identify the offender's voice from telephone intercepts and CCTV footage based on repeated listening rather than specialist expertise. The court found this constituted "ad hoc" expert opinion under s 79 of the Evidence Act, but expressed significant concerns about the methodology, including the risk of confirmation bias from repeated exposure to the recordings after the witness knew whose voice was said to be present. While the court engaged with questions about the reliability of such evidence in the context of admissibility under s 79, it treated reliability as going to weight rather than admissibility, consistent with the approach in Honeysett v The Queen and related authorities. The court ultimately resolved the disputed facts in a manner favourable to the offender where the Crown had not established the aggravating version beyond reasonable doubt.

Objective seriousness and moral culpability. Yehia J found that the offender's role was significantly lesser than that of Gilkes. Gilkes was armed, remained on the porch, and fired the shot; the offender had already retreated to the front lawn when the firearm was discharged. The offence, while serious, was assessed as below the mid-range of objective seriousness for constructive murder. The court acknowledged the senselessness and tragedy of the killing while carefully confining its findings to the actual circumstances established by evidence.

Subjective case and special circumstances. The offender's background was marked by significant deprivation and disadvantage, and the court applied the principle from Bugmy v The Queen that such a background does not diminish in relevance by reason of the nature of the offence. His youth, diagnosed mental health conditions, and history of substance abuse were found to be interrelated and to reduce his moral culpability. Yehia J found special circumstances existed, warranting a longer balance of term than the standard ratio, to provide adequate time for rehabilitation and supervision on parole. The sentence commenced on 29 May 2023, the date the offender was first refused bail on this matter.

Orders Made

  • The offender is convicted of murder.
  • The offender is sentenced to a non-parole period of 8 years' imprisonment, commencing 29 May 2023.
  • An additional term of 4 years' imprisonment is imposed, giving a total term of 12 years, expiring 28 May 2035.
  • The earliest date of eligibility for release to parole is 28 May 2031.
  • Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the court noted the potential application of that Act and directed the offender's legal representatives to advise him accordingly.

Key Takeaways

  • Constructive murder liability, where the foundational offence is attempted armed robbery and the offender did not personally discharge the weapon, does not require knowledge that a death would result; however, the offender's specific role and awareness of the weapon remain relevant to objective seriousness and moral culpability.

  • Ad hoc voice recognition evidence based on repeated listening to intercept recordings may satisfy the threshold for admissibility under s 79 of the Evidence Act, but the court in this case identified confirmation bias as a significant concern affecting the weight to be given to such evidence.

  • Under Bugmy v The Queen, a background of serious deprivation and disadvantage retains its mitigating force at sentencing regardless of the gravity of the offence committed; the Supreme Court applied this principle in conjunction with the offender's youth and mental health conditions to find reduced moral culpability.

  • A co-offender's earlier and more substantial guilty plea discount does not automatically translate to a comparable discount for a later-pleading accused; the timing and circumstances of each plea are assessed independently.

  • Parity with a co-offender's sentence remains a relevant consideration, but differences in role, plea timing, and subjective circumstances can justify meaningful differences in the sentences imposed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 97(2), 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3)(i), 21A(5AA), 25D(2)(b), 30E(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Evidence Act 1995 (NSW), ss 4, 55, 76, 79(1)
- Children (Criminal Proceedings) Act 1987 (NSW), s 33(1)(e)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
- Butera v Director of Public Prosecutions (Vic) (1987) 164 CLR 180; [1987] HCA 58
- *Makita (Australia) Pty