Supreme Court New South Wales

• Medium Neutral Citation: Regina v BELL, Gavin Anthony [2013] NSWSC 1838
• Hearing dates: 27 September 2013
• Decision date: 01 November 2013
• Jurisdiction: Common Law - Criminal
• Before: Hall J

Decision

In respect of Count 3, cause grievous bodily harm to Robert Leuthwaite (Junior) with intent to cause grievous bodily harm, sentenced to a term of imprisonment comprising a non-parole period of 7 years and 6 months commencing on 25 August 2010 and expiring on 24 February 2018, with a balance of term of 2 years and 6 months commencing on 25 February 2018 and expiring on 24 August 2020.

In respect of Count 2, aggravated assault of Robert Leuthwaite (Senior) with intent to rob, sentenced to a term of imprisonment comprising a non-parole period of 3 years and 9 months commencing on 25 February 2011 and to expire on 24 November 2014, together with a balance of term of 1 year and 3 months commencing on 25 November 2014 and expiring on 24 February 2016.

In respect of Count 1, murder of Devril Leuthwaite, sentenced to a term of imprisonment comprising a non-parole period of 19 years, commencing on 25 February 2013 and expiring on 24 February 2032 on which date the offender will be eligible for release on parole, together with a balance of term of 6 years and 4 months commencing on 25 February 2032 and expiring on 24 June 2038.

The total effective non-parole period in respect of Counts 1, 2 and 3 is a period of 21 years and 6 months, with a balance of term of 6 years and 4 months.

• Catchwords: CRIMINAL LAW - sentencing - plea of guilty - felony murder - constructive murder - foundational offence of aggravated assault with intent to rob committed inside victims' dwelling house - offender accidentally shot in face by co-offender before discharging firearm which killed deceased - offender with long standing personal problems including drug use and anti-social personality characteristics - no link established between offender's anti-social personality disorder and any abusive or deprived upbringing - no basis for findings of special circumstances
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Bill, 2013
• Cases Cited: Bollen v R (1998) 99 A Crim R 510; Brown v R [2006] NSWCCA 395; Foster v R [2011] NSWCCA 285; Hudd v R [2013] NSWCCA 57; Muldrock v R [2011] HCA 39; Pearce v R (1998) HCA 57; 194 CLR 610; R v Jacobs (2004) 151 A Crim R 452; R v JB; R v RJH (1999) NSWCCA 93; R v Koloamatungi [2011] NSWCCA 288; R v Mills, (Court of Criminal Appeal, 3 April 1995 unreported); R v Nguyen [2007] NSWSC 389; R v Previtera (1997) 94 A Crim R 76; R v Raad [2011] NSWCCA 138; R v Thompson [2011] NSWSC 1130
• Category: Sentence
• Parties: Regina (Crown); Gavin Anthony Bell (Offender)
• Representation: Counsel: P McGrath (Crown); M Ainsworth (Offender); Solicitors: Solicitor for Public Prosecution (Crown); Kiki Kyriacou Lawyers (Offender)
• File Number(s): 2010/282849

REMARKS ON SENTENCE

1 The offender, Gavin Anthony Bell, to whom I shall refer in these remarks as "the offender", pleaded guilty to the following charges on indictment arising out of events occurring on 22 August 2010 at Werrington, New South Wales:

(i) A charge of murder of Devril Leuthwaite. (Count 1)

(ii) A charge of aggravated assault of Robert Leuthwaite (Senior) with intent to rob him, the aggravating factor being that the offence was committed in company: s 97(2) Crimes Act 1900. Such an offence carries a prescribed maximum penalty of 25 years imprisonment. (Count 2)

(iii) A further offence of causing grievous bodily harm to Robert Leuthwaite (Junior) with intent to cause him grievous bodily harm: section 33(1)(a) Crimes Act 1900. Such an offence carries a prescribed maximum penalty of 25 years imprisonment. (Count 3)

2 All three offences occurred during one episode that occurred at the home of the victims.

3 The offender and his co-offenders on 22 August 2010, went to the home of the victims with loaded firearms at about 10.00pm on that date, a Sunday night, intending to rob the occupants of the home of amounts and, in particular, drugs which they mistakenly believed were on the premises.

4 On Friday, 27 September 2013 at the sentencing hearing Mr M Ainsworth of counsel appeared on behalf of the offender. On that occasion the following evidence was adduced:

(i) Exhibit A - tendered by the Crown - containing the following documents:

1. Copy of indictment presented on 23 July 2013.

2. Copy of agreed facts tendered on 23 July 2013.

3. Criminal history of Gavin Anthony BELL.

4. Custodial Movement Record for Gavin Anthony BELL

5. Remarks on sentence: R v Gary Anthony MARKHAM [2012] NSWSC 1250

6. Criminal history of Gary Anthony MARKHAM

7. Victim impact statements authored by Carol BOLAND on behalf of Sylvia Dawn Leuthwaite, Robert Leuthwaite (Senior), Robert Leuthwaite (Junior), Sylvia Leuthwaite.

8. Victim Impact Statement by Amanda Richardson (nee Leuthwaite) dated 25th September 2013.

9. Victim Impact Statement by Leeanne Leuthwaite dated 27th September 2013.

5 On behalf of the offender, the following evidence was adduced:

(i) Affidavit of the offender sworn on 27 September 2013.

(ii) Report of Barbara Panagiotopoulos, Consultant Psychologist, dated 17 September 2013 (Exhibit 1).

Relevant Facts

6 As previously indicated, a Statement of Agreed Facts was tendered in these proceedings and, for the purposes of these sentencing proceedings the facts as I state them have been derived from those Agreed Facts.

7 In the early afternoon of Sunday 22 August 2010 the offender Gavin Bell attended the Kingswood Hotel to meet with Gary Markham for the purpose of discussing a plan to steal money and cannabis from a house at Werrington. During the meeting the offender, Gavin Bell showed Markham a .22 calibre sawn-off rifle.

8 The two made arrangements to meet later that evening for the purposes of carrying out the offence.

9 At about 8.00pm Markham picked the offender up from an address at Kingswood. Together they returned to the home of Markham at Somerset Street Kingswood to wait for a third man who the offender said was also going to take part in the robbery. Bell, the offender, was dressed in dark clothing and had with him a set of woollen black gloves, a pen gun, a balaclava and the firearm that he had shown Markham at the hotel earlier in the afternoon.

10 At different times during the course of the evening the offender used Markham's mobile phone to make inquiries about the third co-offender's whereabouts.

11 At about 9.15pm Bell again telephoned the co-offender using Markham's mobile phone. After this phone call Markham drove the offender to an address where they met their co-offender. The co-offender showed Markham and Bell a small .25 calibre pistol, balaclavas and a Taser which looked like a mobile phone.

12 At about 9.45pm the offender and Markham left with the co-offender in a car driven by the co-offender. The offender was carrying the sawn-off rifle in a hessian bag, and was wearing black clothes and black woollen gloves. The offender was also in possession of a pen gun. The third offender was also dressed in dark clothes and was in possession of the small pistol and the Taser.

13 During the drive to Werrington the offender told Markham that he knew of the premises they were proposing to rob through his younger brother Blake Mangion. The offender, Bell, and the co-offender offered Markham the use of the pen gun, a Taser and balaclava.

14 At Werrington the vehicle was parked on Irwin street which is a street running behind Princess Street and beside a park.

15 The offender was armed with the .22 Calibre sawn-off rifle whilst the third offender was armed with the small .25 calibre pistol. Both offenders wore balaclavas.

16 The offender and the co-offender went to the front door of Princess Street.

17 Bell and the co-offender used a garden tool to force open the security door of the premises. Once they opened the security/screen door, the offender kicked open the locked wooden door of the home which made a large banging sound as it impacted with the front interior wall of the home.

18 The home at that address was the rented family home of the Leuthwaite family. Robert Leuthwaite Senior was watching television with his wife Sylvia Dawn Leuthwaite in a room at the rear of the house. Robert Leuthwaite Junior, his partner Amy O'Neil and their child Jamie Lee Leuthwaite aged 21 months were in the master bedroom of the house. The deceased Devril Leuthwaite, who was 17 years old, and his girlfriend Eliza Ball were in the second bedroom of the house.

19 Robert Leuthwaite Senior heard the loud bang made by the front door and walked towards the front of the house to investigate. In the kitchen he was confronted by two armed intruders. They grabbed hold of Robert Leuthwaite Senior and said "We want you to come here". They both grabbed him by his jumper and attempted to force him into the hallway of the home. Mr Leuthwaite Senior managed to wrestle out of his jumper and ran away from the two offenders, taking his wife from the house and escaping into the backyard of the premises.

20 Robert Leuthwaite Junior had also heard the bang of the front door. He opened his bedroom door and saw the two men in the hallway. Robert Leuthwaite Junior called out to his brother Devril Leuthwaite that someone was in the house. Robert Leuthwaite Junior closed the door to his bedroom and instructed his girlfriend to stay in the room.

21 Robert Leuthwaite Junior left his bedroom via a window and jumped around on to the front verandah of the home. As he did so he observed a man standing in the front garden. On the Crown's case this man was Gary Markham.

22 Robert Leuthwaite Junior ran from the front door into the hallway where his brother Devril was fighting the two intruders. Robert Leuthwaite Junior grabbed the smaller of the two intruders and began to try and propel him down the hallway and out of the house.

23 Devril Leuthwaite wrestled with Bell on the front verandah of the home.

24 Robert Leuthwaite Junior forced the smaller of the two offenders out on to the railing on the front verandah of the home where they continued to struggle. The offender and Devril Leuthwaite continued struggling on to the front lawn of the premises.

25 The co-offender then fired three shots from the .25 calibre pistol he was holding. One shot impacted with the cheek of Bell passing through his mouth and damaging several teeth. One shot hit the victim, Robert Leuthwaite Junior, in the chest.

26 The offender pointed the sawn-off rifle at the deceased and fired one shot. This shot hit Devril Leuthwaite in the chest. This shot was discharged after Bell had been accidentally shot by the co-offender.

27 The three offenders then ran from the premises through the park towards their vehicle parked in Irwin Street. Markham left behind a shoe that he had been wearing. The offender left behind the woollen glove that he had removed prior to shooting the deceased.

28 Robert Leuthwaite Junior was transported to the Nepean Hospital where he spent some time in the Intensive Care Unit being treated for a gunshot wound to his chest. A single .25 calibre projective was recovered from his body during surgery.

29 A post mortem examination of the deceased Devril Leuthwaite found that the direct cause of death was a gun shot wound to the chest which perforated the right lung. A single .22 calibre projectile was recovered from his body.

30 The offender was arrested and charged on 25 August 2010.

31 The Crown case against the offender, Gavin Bell, is that he went into the premises at Princess Street, Werrington in company with the other offender and Markham armed with a firearm with the intention of committing armed robbery. During the commission of this serious indictable offence punishable by 25 years imprisonment the offender discharged his firearm at the deceased Devril Leuthwaite, causing his death.

32 During the commission of the armed robbery the victim, Robert Leuthwaite Junior, was shot in the chest by the other offender. The possibility of the offender using his firearm during the commission of the offence with intent to the cause grievous bodily harm was within contemplation.

Evidence Tendered by the Crown: Exhibit A

33 The criminal history of the offender establishes a number of matters for which he was dealt with as a juvenile by the Cobham Children's Court commencing on 28 June 2000. The most serious offence, prior to the subject offences, was dealt with on 2 June 2005 by the Penrith District Court in respect of an offence of robbery in company for which the offender was sentenced to a term of imprisonment of 3 years commencing 30 November 2004, which included an 18-month non-parole period. I note that the criminal record in respect of that offence recorded that parole was to: "... include drug and alcohol counselling ...".

34 The offender was dealt with on two occasions in 2008 by the Penrith Local Court in relation to offences of possess prohibited drug, for which he received a s 9 bond, and a fine for an offence of behave in an offensive manner in or near a public place/school.

35 On 8 December 2009 he was dealt with by the Penrith Local Court for an offence of assault occasioning actual bodily harm for which he was sentenced to imprisonment of 3 months.

36 In his oral submissions, Mr Ainsworth on behalf of the offender noted that the psychologist's report indicates that the offender acquired a heroin addiction whilst a juvenile and that he received a number of juvenile sentences. However, it was submitted, he had not come to the attention of the criminal justice system as an adult in a manner that suggested that the offences the subject of the present proceedings were necessarily an indication of his general criminality. Mr Ainsworth observed that the only significant adult offence recorded in the criminal history was the robbery in company offence to which I have referred.

37 I will refer to the history obtained by Ms Panagiotopoulos for the purpose of her assessment shortly.

The Offender's Affidavit Evidence

38 The offender is presently aged 27 years. He was born in Sydney. He left school at about 14 years of age. He found learning at school to be difficult.

39 The affidavit was read at the sentence hearing. The Crown did not cross-examine the offender on the affidavit. In it, the offender referred to details concerning his personal background and additionally expressed his remorse for the subject offences and his regret at the stress and harm he has caused to the victims and victims' family.

40 In his affidavit he stated that he began smoking cannabis at an early age and by about 12 years he was smoking it on a weekly basis. He said at age 14 he first began using heroin and by 16 years he started using "ice" as well as Xanax and Valium.

41 He said he, at an unspecified time, completed a TAFE course - a glazier's course and a Bricklayer's course.

42 In paragraph 9 of his affidavit, he stated that as he got older his substance abuse caused many problems he encountered.

43 I will refer to other matters addressed in his affidavit shortly.

The Psychological Assessment Report

44 The psychological assessment report of Ms Panagiotopoulos identifies the materials that were made available to her (which included a copy of the Agreed Facts). She conducted her assessment of the offender at Long Bay Hospital on 12 September 2013, the interview and assessment lasting just over three hours on that date.

45 Ms Panagiotopoulos also interviewed the offender's mother by telephone on 16 September 2013.

46 The family background includes the separation of the offender's parents when the offender was approximately 2-3 years of age. I note that there was no history of any discord between the offender's mother and stepfather, nor of domestic strife in the nature of violence or sexual/physical abuse or neglect.

47 In the history recorded in the report it would appear that the offender's upbringing was relatively stable but that at a reasonably early age he engaged in drug use and delinquent behaviours with periods spent in juvenile detention centres.

48 According to the history received by the psychologist, he left school at the start of year 8 of high school and it appears that his dislike of school was at least in part related to learning difficulties experienced.

49 Subsequently, he had limited vocational experience and developed relationships with anti-social peers associated with drug taking and other criminal activities.

50 The history obtained by Ms Panagiotopoulos as set out in her report, is that the offender commenced cannabis use at the age of 9 or 10, and between the age of 14 and 17 he engaged in using heroin and amphetamines, and methamphetamines (ice). In due course, according to his account to the psychologist, he commenced to use such drugs in combination described as a pattern of binge use.

51 In relation to the subject offences, the offender gave an account during the psychological assessment of being at the time homeless, cashless and heavily drug dependent, and in need of drugs. The psychological assessment report refers to the offender's expressions of regret about the outcome of the offences and about the death of Devril Leuthwaite. The report additionally records his expressions of sorrow for people who have been affected by his offending, including his victims and their family as well as his own family.

52 On the basis of psychometric and other assessment, Ms Panagiotopoulos concluded that the offender falls in the average range in terms of general intellectual functioning, that his capacity to read written English is commensurate with the skills of the average 13 and a half-year old, but that he is functionally literate and attained a level of literacy capacity consistent with his educational attainment.

53 Ms Panagiotopoulos concluded:

"Clinically, Mr Bell endorsed a high level of antisocial personality characteristics including being egocentric, aggressive, disloyal, unreliable, irresponsible, impulsive, and reckless. These personality characteristics are likely to compromise his ability to have social relationships both in friendships and intimacy. There was also a frank account of his drug abuse history, which has led to severe impairments in his ability to maintain his social role expectations, and possibly has alienated people who were once close to him ...". (at [37])

54 The report also noted that the offender's profile indicated "a significantly high level of depressive symptoms ...". (at [37])

55 By way of conclusion, Ms Panagiotopoulos stated:

"Mr Bell's profile and endorsed characteristics most likely point towards a diagnoses of Antisocial Personality Disorder and this would be consistent with his reported history. However, there is also some evidence [that] Mr Bell may have co-morbid Dysthymic Disorder and Posttraumatic Stress Disorder symptoms ..." (at [38])

56 The report also noted that the offender's "offending behaviour is best conceptualised within the context of antisocial and maladapted personality functioning, further disrupted by severe substance abuse disorder, homelessness and poor consequential thinking." (at [41])

57 On page 9 of the report, a number of specific recommendations are made for the necessary support and intervention for the offender, in a number of areas. These recommendations were expressed as addressing the offender's criminogenic needs and to ameliorate his risk to the community.

58 There are two other matters to be observed from Ms Panagiotopoulos' report. First, whilst it is clear that the offender has had problems with addiction to prohibited and other drugs, there is no analysis suggesting any particular causal nexus between his offending, the subject of the present proceedings, and any drug addiction at the material time. Second, there is no material that links any personality behavioural disorders to a deprived upbringing.

Crown Submissions

59 In its written submissions the Crown noted that the offender was 24 years of age at the time of the subject offences. The Crown submitted that his history of previous offences disentitles him to leniency he might otherwise receive. I accept that submission.

60 The Crown accepted that the offender's pleas entered at a late stage should attract a discount in the order of 10%.

61 In its helpful submissions, the Crown submitted in relation to the offence of murder:

1. The offence was committed by the offender's deliberate act of discharging the loaded firearm he was carrying at the deceased during or immediately after the commission of the foundational offence of assault with intent to rob (Count 2).

2. That there is prescribed a standard non-parole period of 25 years where the victim is a child ie, is under the age of 18 years, and that the standard non-parole period is to be considered as an important guidepost as to the seriousness of the offence, notwithstanding the offender's plea of guilty.

3. That the Court of Criminal Appeal has confirmed that constructive murder is not to be regarded as less serious attracting a lighter sentence or non-parole period than that which is appropriate for other categories of murder R v Jacobs (2004) 151 A Crim R 452 at [332] and R v Mills (Court of Criminal Appeal, 3 April 1995, Gleeson CJ, Cole JA and Sperling J, unreported, No 60306 of 1994).

4. That in accordance with authority, in particular R v Raad [2011] NSWCCA 138 the relative seriousness of any crime depends on its own facts and not upon some general categorisation per Adams J at [12].

5. The present case is an objectively serious case of felony murder. In particular in that respect this is a case where the offender killed the deceased in his own home by intentionally firing a loaded firearm he had brought to the deceased's home, in company with another armed co-offender to effect the armed robbery of the deceased's home.

6. The foundational offence, assault with intent to rob, is an objectively serious example of armed home invasion. Whilst the offender did not intend to cause death or grievous bodily harm, he must have realised that, with the safety catch off and his finger on the trigger, serious injury, if not death, was a reasonable possibility.

7. The latter offence was aggravated by being committed without regard for public safety: s 21A(2)(i) Crimes (Sentencing Procedure) Act 1999 there being a number of persons present in the house at the time of the offence.

8. As to Count 2, aggravated assault with intent to rob Robert Leuthwaite Senior, the offender's plea was entered on the basis of his joint and primary criminal liability with his co-offender. It is a foundational offence to the count for murder. The aggravating circumstance was that it was committed in company.

9. As to Count 3, cause grievous bodily harm to Robert Leuthwaite Junior with intent to cause grievous bodily harm, the offence carries a maximum penalty of 25 years imprisonment with a standard non-parole period of 7 years. There are two aggravating circumstances. First, by the actual use of a weapon: s 21A(2)(c) Crimes (Sentencing Procedure) Act 1999. Second, the offence being committed in company: s 21A(2)(e).

62 The Crown submitted that there is little by way of parity between the offender's co-offender Markham and the offender and there should be appropriate disparity between their sentences. I accept that submission.

63 Mr Ainsworth properly did not take issue with this latter submission and I proceed upon that basis.

64 In oral submissions the learned Crown Prosecutor submitted that on the agreed facts the offender was the "prime mover" closely followed by Markham (T 8), but that in that respect the Crown emphasised that the offender was the prime mover in relation to the robbery offence, the murder not being the point of the planned joint enterprise between the offenders: T 9.

65 Whilst Mr Ainsworth submitted that the offender could not be regarded as the prime mover, I consider that the Agreed Facts support the Crown's submission on this point.

66 In relation to the circumstances in relation to the offence of murder in which the offender fired the fatal shot, the Crown observed that the shot was discharged after the offender had been shot in the face by his co-offender, that is, some seconds beforehand: T 10.

67 The Crown further submitted that in those circumstances a finding would not be made of an intent to kill but a lesser intent to inflict injury for the purpose of effecting an escape.

68 Mr Ainsworth in his submission observed:

(i) The facts were always that this was a constructive murder rather than a deliberate intent to do grievous bodily harm or to kill. That is the basis on which the plea was entered.

(ii) He did not cavil with the analysis that I referred to at the sentence hearing that there is a need to step back and determine the objective seriousness of the entire event bearing in mind it is a constructive murder offence and flowing from the foundational offence, armed robbery in company.

(iii) The tragic and catastrophic consequence of the discharge of the gun must be seen in conjunction or in light of the struggle that then occurred in the course of what, at that stage, appeared as an aborted attempt at robbery of these premises.

(iv) In the course of resistance by members of the household, the co-offender fired a number of shots in the course of the struggle, one of which hit Mr Bell in the face. That was at very close range and the other shots that were fired that hit the surviving Leuthwaite brother were always at very close range to Mr Bell.

(v) It is only after the bullet struck the offender and passed through the side of his face, that he discharged the firearm. Mr Ainsworth accepted that it was a deliberate act to pull the trigger.

69 Mr Ainsworth properly acknowledged in relation to the offence of murder:

"It is plainly and objectively a very serious offence on the facts of it but it is the unfortunate 2013 fact that armed robberies or robberies or run ins, call them what you may, people like Mr Bell and whoever his co-offenders were, other than Markham who are drug addicted and/or in need of funds who target persons that they believe will have money or drugs."

70 On the issue of accumulation of sentences, Mr Ainsworth submitted that some accumulation may be considered in relation to the offence of murder but there should not be any accumulation of sentences in respect of the other offences: T 14. Whilst there were separate victims in relation to Counts 2 and 3, they arose in the course of one event.

Sentencing Considerations

71 In determining the sentences to be imposed on the offender I am required to determine the appropriate sentence for each offence and then consider the issues of accumulation or concurrency of sentences to be imposed and questions of totality: Pearce v R (1998) HCA 57; 194 CLR 610.

72 Each of Counts 1, 2 and 3 are objectively serious offences in terms of the individual acts of the offender giving rise to each offence and the circumstances in which they occurred.

73 The maximum penalty for the offence of murder is life imprisonment. The offence carries a standard non-parole period of 25 years where the victim is a child (defined as under 18 years of age). The deceased, Devril Leuthwaite, at the time of the offence committed by the offender was 17 years and 9 months, his date of birth having been 17 November 1992.

74 The offender pleaded guilty to the offence of murder (Count 1) upon the basis that his conduct amounted to what formerly was known as "felony-murder" and is now usually referred to as "constructive murder". That offence was committed during or immediately after the foundational crime the subject of Count 2. The offence the subject of Count 3, that of causing grievous bodily harm to Robert Leuthwaite Junior with intent to cause him grievous bodily harm is also a very serious offence being one as I have earlier stated carries a maximum penalty of 25 years imprisonment.

75 The Crown accepted that constructive murder is an acceptable basis to approach the assessment of the objective seriousness of the offence in Count 1. The Crown, however, has submitted that the offence of murder in this case on that basis is objectively serious having regard to several factors referred to in the Crown's submissions. Counsel for the Crown, and Mr Ainsworth, accepted that the fact that the offence arose in the course of the commission of the foundational offences is not of itself a mitigating factor and nor is the offender's culpability reduced on that account: R v Mills (NSWCCA, 3 April 1995, unreported).

76 I accept that it is appropriate in this matter to proceed on the basis that the offence is properly to be regarded as one of constructive murder. I have so concluded after considering all of the material that has been placed before me during the course of the sentencing proceedings.

77 The fact that an offence of murder which is characterised as "constructive murder", does not, for that reason alone, dictate the conclusion that a lower level of culpability is involved than applies to other categories of murder. This conclusion flows from the principles as stated in Mills to which I have referred. The seriousness of any particular constructive murder is to be assessed according to "the nature of the acts of the offenders which played a part in the death of the victim": R v JB; R v RJH (1999) NSWCCA 93 at [33].

78 Counts 2 and 3 were committed in the home of the Leuthwaite family on a Sunday evening and involved an outrageous course of conduct arising out of a planned home invasion in which the offender took a lead role. The motivation was personal gain in terms of money and drugs. The offence of murder, on the agreed facts, arose in circumstances in which having encountered strong resistance by members of the Leuthwaite family, in particular the deceased, 17 year old Devril Leuthwaite, the offender resorted to the use of a loaded firearm to overcome the resistance against him rather than extricating himself in some other way from the situation which he and his co-offenders themselves had created.

79 The circumstances in which the offender invaded the dwelling house armed with a loaded sawn-off rifle were directly associated with the subsequent shooting of the deceased for reasons identified in the Crown's submissions. The offender and his co-offenders were wholly responsible for having created a dangerous risk to the occupants of the dwelling which risk tragically materialised in the killing of a young man on the threshold of his adult life. Cases such as this, involving the taking of human life in the pursuit of criminal self-interest have no place in a civilised society and are deserving of severe punishment.

80 In determining the sentences to be imposed for each of the offences, the personal circumstances of the offender must be taken into account, and I do. He plainly has had long-standing personal problems including a problem with aggression, drug-taking and has over many years manifested anti-social personality characteristics as identified in the psychological assessment that has been undertaken. This is not a case in which his antisocial personality disorder has, as I have earlier indicated, been specifically linked to any abusive or deprived upbringing. Ms Panagiotopoulos has made a number of recommendations for support and intervention programs in a number of areas whilst the offender is serving the sentences to be imposed. It is to be hoped that her recommendations will be capable of being followed or implemented.

81 On the basis of her report, the offender's rehabilitation prospects must, in my assessment, be considered to be quite uncertain. Much may depend upon whether he can benefit from the type of support programs that have been recommended.

82 The offender has expressed contrition and remorse both in his affidavit and to the psychologist. I am prepared to act upon the basis that his contrition and remorse are genuine.

83 He is entitled in the determination of sentences to be imposed to a 10% discount for his guilty pleas and I proceed upon that basis.

84 There is no basis, in my assessment, for a finding of special circumstances in determining the appropriate proportion between non-parole and parole periods in relation to the sentences to be imposed.

85 I have considered the principles of totality in determining concurrence and an accumulation of sentences. In that respect, the fact that the individual offences occurred as part of or in the course of one episode is not determinative. The particular circumstances of each offence were objectively serious and they each included different victims.

86 In determining the appropriate sentence to be imposed, in particular in relation to the offence of murder, sentences imposed in other cases may, to a point, assist in illustrating a range and can provide assistance against which to examine a proposed sentence, but they are not to be used arithmetically to determine the particular sentence under consideration: Raad v R [2011] NSWCCA 138. On that basis I have considered the sentencing approach and outcomes in a number of cases including R v Jacobs [2004] 151 A Crim R 452; Hudd v R [2013] NSWCCA 57; Brown v R [2006] NSWCCA 395; R v Thompson [2011] NSWSC 1130; R v Nguyen [2007] NSWSC 389.

Consideration

Objective Seriousness

87 The sentence to be imposed in respect of Count 1, the offence of murder, is to be set by bearing in mind in the sense ascribed by the High Court in Muldrock v R [2011] HCA 39 as a guidepost: Foster v R [2011] NSWCCA 285 at [28]-[31]; R v Koloamatungi [2011] NSWCCA 288 [15]-[21] per Basten JA. See also the recent amendments in Schedule 1 to the Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Bill, 2013 assented to on 29 October 2013, s 54B.

88 I have had regard to the standard non-parole period in relation to Counts 1 and 3 in accordance with those principles and provisions.

89 The sentence I propose to impose for the offence of murder will provide a non-parole that is below the standard non-parole period having regard to all relevant circumstances, including the objective circumstances of the commission of the offence in Count 1, in particular those referred to in para [66] above together with the fact that the offender did not form an intent to actually use the sawn-off rifle until the circumstances arose as they did very shortly before the fatal shot was fired by him.

Victim Impact Statements

90 Each of the Victim Impact Statements of Sylvia Dawn Leuthwaite, Robert Leuthwaite Senior, Robert Leuthwaite Junior, Sylvia Leuthwaite, Amanda Richardson (nee Leuthwaite) and Leeanne Leuthwaite were all read at the sentencing hearing. The statements indicate the enormous loss and grief suffered by members of Devril Leuthwaite's family. It is to be hoped that the opportunity that was taken up by those who have made the Victim Impact Statements of expressing their deep sorrow for the loss of their beloved family member will give some solace and relief to the members of the deceased's family. I am, of course, obliged by existing authority not to take these matters into account in the assessment of the appropriate sentences to be imposed: R v Previtera (1997) 94 A Crim R 76; and Bollen v R (1998) 99 A Crim R 510.

Sentences

91 In determining sentence, a discount of 10% for the offender's early pleas is, as I have earlier stated, to be applied.

92 In relation to Count 1, the offence of murder, after allowance of a 10% discount, the non-parole period will be for a period of 19 years with a balance of term of 6 years and 4 months.

93 I note that in respect of Count 1, the total term of the sentence, prior to the application of the 10% discount is 28 years 2 months.

94 Gavin Anthony Bell I sentence you to the following terms of imprisonment:

(i) In respect of Count 3, cause grievous bodily harm to Robert Leuthwaite (Junior) with intent to cause grievous bodily harm, I sentence you to a term of imprisonment comprising a non-parole period of 7 years and 6 months commencing on 25 August 2010 and expiring on 24 February 2018, with a balance of term of 2 years and 6 months commencing on 25 February 2018 and expiring on 24 August 2020.

(ii) In respect of Count 2, aggravated assault of Robert Leuthwaite (Senior) with intent to rob, I sentence you to a term of imprisonment comprising a non-parole period of 3 years and 9 months commencing on 25 February 2011 and to expire on 24 November 2014, together with a balance of term of 1 year and 3 months commencing on 25 November 2014 and expiring on 24 February 2016.

(iii) In respect of Count 1, murder of Devril Leuthwaite, I sentence you to a term of imprisonment comprising a non-parole period of 19 years, commencing on 25 February 2013 and expiring on 24 February 2032 on which date you will be eligible for release on parole together with a balance of term of 6 years and 4 months commencing on 25 February 2032 and expiring on 24 June 2038.

95 The total effective non-parole period in respect of the sentences which I have now imposed in respect of Counts 1, 2 and 3 is a period of 21 years and 6 months, with a balance of term of 6 years and 4 months.

**********

Decision last updated: 13 December 2013