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Supreme Court 8 August 2025

R v Symons, McDonald & Robertson

[2025] NSWSC 889

Assault & violenceHomicide
CRIMINAL LAW SENTENCING WHERE APPEAL AGAINST CONVICTION ALLOWED IMPACT ON VICTIM’ S FAMILY WHERE DELAY FAILED ALL PARTICIPANTS ALL PARTIES BUFFETED BY SYSTEM

Citation: R v Symons, McDonald & Robertson [2025] NSWSC 889
Court: Supreme Court of New South Wales
Date: 8 August 2025
Judge: Hamill J

Background

In April 2017, Clint Starkey was fatally assaulted at a service station at Peats Ridge by four men, including Adam Symons, Beau McDonald, and Guy Robertson. The prosecution alleged the assault was arranged by others because of a personal dispute. Starkey died from his injuries in June 2017.

All three offenders, along with others, were tried before Fagan J in 2022 and convicted of murder. Fagan J imposed substantial murder sentences: 18 years (Symons), 17.5 years (McDonald), and 19 years (Robertson). A fourth participant, Jake McDonough, was convicted of manslaughter at the same trial and sentenced to 7.5 years.

Each murder conviction was subsequently quashed by the Court of Criminal Appeal, with retrials ordered. Shortly before jury empanelment for the retrials in June 2025, each offender pleaded guilty to manslaughter. The Director of Public Prosecutions accepted those pleas in full satisfaction of the indictment. The agreed basis was that the offenders jointly participated in an unlawful and dangerous assault causing death, without any intent to kill or inflict grievous bodily harm.

  • What sentence is appropriate for each offender for manslaughter, in circumstances where they were convicted of murder at trial, served years on remand, and then spent further time on strict bail?
  • How should the court achieve parity with McDonough, who was sentenced for manslaughter (and a lesser role) in 2022?
  • What weight should be given to the significant systemic delay, the offenders' time in custody, their time on strict bail, and their personal circumstances (including childhood exposure to violence and drugs)?
  • Where total sentences are structured with non-parole periods that have already expired, and the offenders are currently at liberty on bail, how should the parole framework operate? Can the court make parole orders, or is that an executive function?
  • Whether it was appropriate for the court to communicate directly with the State Parole Authority, and if so, in what form.

Decision

Hamill J imposed sentences for manslaughter that, when backdated to the commencement of each offender's remand, resulted in non-parole periods that had already expired before the sentencing date. The judge acknowledged the profound impact of the crime on Starkey's family and expressed deep sympathy, while explaining that the law required significantly lesser sentences for manslaughter than for murder.

The court weighed a range of aggravating factors: the assault was a joint attack, was brutal, involved planning over hours or days, and was carried out by men engaged as "muscle" in connection with gang-adjacent activity. Mitigating factors included the pleas of guilty (albeit entered years after the offer was first available), childhood exposure to violence and drug use, rehabilitation prospects, and the significant systemic delay that was not attributable to the offenders.

On the parole question, Hamill J concluded that the function of granting parole is an executive function vested in the State Parole Authority, not a judicial function. The court held it would be constitutionally inappropriate for it to make parole orders itself or to communicate directly with the Parole Authority in a way that trenched on that executive role. Instead, the court made recommendations and directed the Registrar to provide the Parole Authority with the judgment and all sentencing materials by 5:00 pm on the day of sentence, urging the matter be treated as urgent.

McDonald's total sentence had already expired by the time of sentencing, and he was discharged from the dock. Symons and Robertson remained subject to balance-of-term periods extending to 2026 and 2027 respectively, with non-parole periods that had nominally expired in 2023 and 2024. The court noted that each had been on bail for approximately nine months in compliance with strict conditions, and that the delay in reaching conclusion was in no way the fault of either offender.

Orders Made

Beau McDonald: Sentenced to 6.5 years imprisonment commencing 10 January 2019 and expiring 9 July 2025. No non-parole period set (sentence already expired). Discharged from custody.

Adam Symons: Non-parole period of 5 years and 6 months commencing 23 April 2018 and expiring 22 October 2023. Balance of term of 2 years and 9 months expiring 22 July 2026.

Guy Robertson: Non-parole period of 6 years commencing 3 July 2018 and expiring 2 July 2024. Balance of term of 3 years expiring 2 July 2027.

Additional notations and directions:
- The court noted that Symons and Robertson were notionally eligible for parole consideration from October 2023 and July 2024 respectively, and that each had complied with strict bail conditions for approximately nine months.
- The court noted the delay was not attributable to either offender.
- The court recommended the State Parole Authority consider the issue of parole as a matter of urgency.
- The Registrar was directed to provide the State Parole Authority with a copy of the judgment and all sentencing hearing materials by 5:00 pm on the day of sentence.
- The court recommended that Senior Judicial Members of the State Parole Authority be made aware of the case and its recommendations as soon as possible.
- The court noted that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to the offence of manslaughter and may affect Symons and Robertson.

Key Takeaways

  • Where a manslaughter sentence, backdated to remand, results in a non-parole period that has already expired before the sentencing date, the court cannot itself grant parole. The grant of parole is an executive function vested in the State Parole Authority, and it would be constitutionally inappropriate for a sentencing court to exercise or improperly influence that function.

  • Significant systemic delay, where none of the delay is attributable to the offenders, is a relevant mitigating factor at sentence and was expressly taken into account in this case.

  • Parity between co-offenders sentenced for the same offence (here, manslaughter) remains a governing principle, even where co-offenders were sentenced at different times and originally for a different offence (murder). Hamill J structured the sentences with close reference to McDonough's 2022 sentence.

  • Childhood exposure to violence and drug use is a recognised mitigating consideration in NSW sentencing, as are genuine prospects of rehabilitation, and each was weighed individually for the three offenders.

  • A guilty plea to manslaughter entered only shortly before a retrial attracted a reduced discount compared with an early plea, reflecting the long delay after the plea offer was first available, though the court acknowledged the systemic complexity of the proceedings in calibrating that discount.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 21A, 30E(3), 44, 45, 47
- Crimes (Administration of Sentences) Act 1999 (NSW), ss 134, 135, 137, 137B, 140, 141A, 160
- Crimes (Administration of Sentences) Regulation 2014 (NSW), regs 222, 223
- Crimes (High Risk Offenders) Act 2006 (NSW), s 5I

Cases:
- R v Crane & Ors [2022] NSWSC 1545
- Crane v R [2024] NSWCCA 112; [2025] NSWCCA 93
- Postiglione v The Queen (1997) 189 CLR 295
- Lowe v The Queen (1984) 154 CLR 606
- Bugmy v The Queen (1990) 169 CLR 525
- R v Carroll (2010) 77 NSWLR 45
- R v Quinlin [2021] NSWCCA 284
- La v R [2021] NSWCCA 136
- Lavender v R [2006] NSWCCA