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Supreme Court 27 July 2026

R v Peckham (No 2)

[2026] NSWSC 888

Homicide
SENTENCING M URDER SENTENCE FOLLOWING TRIAL

Citation: R v Peckham (No 2) [2026] NSWSC 888
Court: Supreme Court of NSW
Date: 27 July 2026
Judge(s): Chen J

Background

In the early hours of 16 August 2023, George Kirk was fatally stabbed in the bedroom of a home in Dubbo where he was staying with his partner. He died at the scene at the age of 39. The offender, Mark Peckham, and another man, Daniel Fitton, confronted Mr Kirk and his partner in that bedroom.

The offender stood trial for murder and was convicted by a jury on 23 March 2026. The Crown had put its case to the jury on two alternative bases: either the offender personally inflicted the fatal stab wound to Mr Kirk's left chest wall, or he participated in a joint criminal enterprise with Fitton to rob Mr Kirk while armed with a knife, contemplating that grievous bodily harm might be inflicted in doing so.

Because the jury's guilty verdict did not disclose which alternative it accepted, the central dispute on sentencing was whether Chen J could be satisfied beyond reasonable doubt that the offender was the one who delivered the fatal blow.

  • Whether the sentencing court could find, beyond reasonable doubt, that the offender personally inflicted the fatal stab wound, given the two pathways to conviction put to the jury
  • What principles govern fact-finding by a sentencing judge where a jury verdict does not resolve all factual matters relevant to the degree of culpability
  • How the Bugmy principles (concerning the mitigating effect of severe childhood deprivation) applied in the circumstances
  • How the principle of totality applied where the sentence for murder was to cumulate upon an existing sentence for unrelated offences in Newcastle
  • Whether special circumstances existed to justify a departure from the standard three-to-one ratio of non-parole period to balance of sentence

Decision

Issue 1: Fact-finding at sentence

Chen J confirmed that a sentencing court must make findings of fact consistent with the jury's verdict, but is not required to adopt the view of the facts most favourable to the offender. Adverse findings must be established beyond reasonable doubt; facts favourable to the offender must be proved by the offender on the balance of probabilities. These principles, drawn from Filippou, Olbrich, and Cheung, guided the court's approach throughout.

Issue 2: Whether the offender inflicted the fatal wound

Chen J assessed evidence from the deceased's partner and a friend who was present at the premises, together with admissions the offender made after fleeing the scene. The Crown submitted the combination of that evidence established, to the required standard, that the offender personally delivered the fatal blow. The defence argued the court could not be so satisfied and that the offender must therefore be sentenced on the basis that he did not inflict it, relying on GAS v The Queen. The judgment resolves this central factual question as part of the broader sentencing analysis, with Chen J making findings about the interactions and admissions following the stabbing.

Issue 3: Bugmy principles and other subjective factors

The court applied the principles from Bugmy v The Queen (2013) 249 CLR 571, which recognise that severe childhood deprivation can reduce the weight given to general deterrence in sentencing. However, the judgment also records that the offender had poor prospects of rehabilitation and had not shown remorse, both of which operated against him in the overall sentencing calculus.

Issue 4: Totality and special circumstances

The murder sentence was structured to cumulate upon a sentence the offender was already serving for offences committed in Newcastle, for which he had been in custody since 16 January 2024. Applying the principle of totality and the guidance in Harris v R [2023] NSWCCA 44, the court found that without an adjustment, the combined ratio of non-parole period to head sentence would reach approximately 83%, well exceeding the three-quarters benchmark. Chen J found special circumstances to reduce that ratio to approximately 75%, commencing the murder sentence on 16 January 2026.

Orders Made

  • The offender Mark Peckham is convicted of the murder of George Kirk.
  • A sentence of imprisonment is imposed consisting of a non-parole period of 17 years and 6 months, commencing 16 January 2026, with a head sentence of 24 years.
  • The offender becomes eligible for parole on 15 July 2043; the head sentence expires on 15 January 2050.
  • Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender was advised of the existence of that Act and that it applies to him and to this offence.

Key Takeaways

  • Where a Crown presents alternative pathways to a murder verdict, the jury's silence on which pathway it accepted does not preclude the sentencing court from making its own finding, beyond reasonable doubt, as to the degree of the offender's personal culpability, including whether the offender personally inflicted the fatal blow.
  • A sentencing court is not obliged to sentence an offender on the most favourable version of the facts consistent with the verdict; only findings adverse to the offender must reach the reasonable doubt standard, while facts the offender relies upon must be proved on the balance of probabilities.
  • Under the Bugmy principles, evidence of severe childhood deprivation may reduce the weight afforded to general deterrence, but that mitigating factor operates alongside, and does not displace, findings about poor rehabilitation prospects and the absence of remorse.
  • Where cumulating a new sentence upon an existing one would produce a combined non-parole period exceeding three-quarters of the total head sentence to a substantial degree, Harris v R confirms that the sentencing court must advert to that circumstance and may find special circumstances to restore an approximate 75% ratio.
  • The Crimes (High Risk Offenders) Act 2006 (NSW) notification requirement under s 25C(1) applied on the facts, and the court was required to direct the offender's legal advisers to explain its significance to him.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes ( High Risk Offenders) Act 2006 (NSW)
- Crimes ( Sentencing Procedure) Act 1999 (NSW)

Cases
- Badans v R [2012] NSWCCA 97
- Beale v R [2015] NSWCCA 120
- Bugmy v The Queen (2013) 249 CLR 571
- Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
- Callaghan v R [2006] NSWCCA 58; 160 A Crim R 145
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Dorsett v R [2024] NSWCCA 192
- Droudis v R (2020) 103 NSWLR 806; [2020] NSWCCA 322
- Dungay v R [2020] NSWCCA 209
- Field v R [2020] NSWCCA 105
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- FL v R [2020] NSWCCA 114
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353
- Greenyer v R [2016] NSWCCA 272
- Harris v R [2023] NSWCCA 44
- Hoskins v R [2021] NSWCCA 169
- Imbornone v R [2017] NSWCCA 144
- Jackson v R [2010] NSWCCA 162
- Jonson v R [2016] NSWCCA 286; 263 A Crim R 268
- Lai v R [2021] NSWCCA 217
- Lonsdale v R [2020] NSWCCA 267
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Mattiussi v R [2023] NSWCCA 289
- Milat v R; Klein v R [2014] NSWCCA 29
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Palmer v R [2018] NSWCCA 205
- PW v R [2019] NSWCCA 298
- R v AA [2017] NSWCCA 84
- R v Campbell [2014] NSWCCA 102
- R v Dion [2021] NSWSC 1043
- R v Fidow [2004] NSWCCA 172
- R v Irwin [2019] NSWCCA 133
- R v Isaacs (1997) 41 NSWLR 374
- R v MJ [2023] NSWCCA 306
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Rae (No 2) [2024] NSWSC 713
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v Van Ryn [2016] NSWCCA 1
- R v West [2014] NSWCCA 250
- Salafia v R [2015] NSWCCA 141
- Shannon v R [2022] NSWCCA 41
- Wiggins v R [2010] NSWCCA 30