Supreme Court New South Wales Medium Neutral Citation: R v Bidner (Sentence) [2023] NSWSC 880 Hearing dates: 21 July 2023 Date of orders: 27 July 2023 Decision date: 27 July 2023 Jurisdiction: Common Law Before: Wilson J Decision: 1. Having been convicted of the murder of Shane Mears the offender, Adam Bidner, is sentenced to a term of imprisonment for 24 years and 8 months, commencing on 11 March 2022, and expiring on 10 November 2046. There will be a non-parole period of 18 years, expiring on 10 March 2040. Catchwords: CRIMINAL LAW – sentence – murder – guilty plea at late stage of proceedings – motor vehicle used as weapon – intention to kill – spontaneous and opportunistic – blunt force head and chest trauma – absence of provocation – attempts to conceal evidence – high moral culpability – offender's untested and unsworn evidence – lack of evidence of remorse – methylamphetamine use – deterrence Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: R v Bidner [2022] NSWSC 2022 R v Edwards (1996) 90 A Crim R 510 R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 Shaw v R [2008] NSWCCA 58 Category: Sentence Parties: Rex (Crown) Adam Bidner (Offender) Representation: Counsel: B Costello (Crown) M Hobart SC (Offender) Solicitors: Solicitor for Public Prosecutions (NSW) (Crown) Just Defence Lawyers (Offender) File Number(s): 2020/202106 Publication restriction: Nil JUDGMENT 1. HER HONOUR: On 1 March 2023, that being the second occasion on which this matter was listed for trial, the offender, Adam Bidner, was arraigned before the Court and a jury panel upon a charge that he did, on 5 July 2020, at Cessnock in this State, murder Shane Mears. He entered a plea of not guilty to that charge, as well as to a number of alternative and associated counts charged against him. A jury was empanelled to hear the offender's trial and four witnesses were called in the Crown case before the jury was permitted to separate for the day. 2. The following day, prior to the recommencement of evidence, the Court was told that, having received an expert report that did not assist his case, the offender intended to enter a plea of guilty to the murder of Mr Mears. The plea was formally entered when the offender was re-arraigned on 6 March 2023. A conviction for the offence was recorded that day. 3. Murder is an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW) and it carries a maximum penalty of life imprisonment. The standard non-parole period that applies in the circumstances of this case is one of 20 years imprisonment. By virtue of the plea of guilty entered to the charge the offender is entitled to a mandatory discount on sentence of 5%, in compliance with s 25D(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("the CSP Act"). The Facts of the Crime 1. The facts of the murder of Shane Mears are established to the criminal standard by a statement of them which has been agreed between the Crown and the offender, and tendered to the Court as Exhibit ("Ex") SA. There remain some matters for the determination of the Court and, with respect to those matters, the principles given in R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587, including as to the standard of proof for adverse and favourable findings respectively, have been applied. 2. The offender and Mr Mears both lived in the Cessnock area and knew each other. An incident in April 2019 involving the offender transformed what had been something like an acquaintance into a relationship of mutual hostility, and it is that hostility that forms the background to the murder of Mr Mears. 3. On 4 April 2019 the offender entered Mr Mears' residence at Bellbird and seriously assaulted Mr Mears' friend, Thomas Ellem. Mr Ellem had been asleep when the assault upon him began, and his only response to it was to curl up into a defensive position as multiple blows were struck by the offender, who was armed with a pickaxe handle. The assault was filmed and, soon after it occurred, Mr Mears learned of the assault and saw the footage. He was greatly upset and angered by the attack on his friend, and told others that he would pay the offender back for what he had done to Mr Ellem. There were subsequent verbal confrontations between Mr Mears and the offender, but nothing more occurred. The atmosphere of mutual resentment and hostility between the men continued. 4. On 5 July 2020, at about 4:30 in the afternoon, Mr Mears and his friend Jeffrey Winter went to the Waste Management Area, or "Tip", at Cessnock, to forage for scrap metal. In the vicinity of the scrap metal pile that afternoon, and entirely coincidentally, was the offender, who was also looking for useful scrap. He had driven into the Tip compound in a Toyota Landcruiser wagon and parked near to the pile. The Landcruiser was fitted with various accessories, including distinctive tyres with an unusual tread. 5. On arriving at the scrap metal pile Mr Winter and Mr Mears separated, with one going clockwise around the circular pile, and one anti-clockwise. The pile was some 5 metres high and 40 or 50 metres in diameter and Mr Winter quickly lost sight of his friend. As he walked around the pile Mr Winter saw the offender, whom he did not recognise, and his car. The car was parked to the side of the mound of metal. A little further on Mr Winter saw another two men standing near a tray back utility. Although he did not recognise them, the men were Jaron Apthorpe and Ryan Apthorpe. Mr Winter remained in this vicinity. At some point Mr Mears neared the location where the Apthorpes were searching the pile; they reported seeing him and his bootprint was found in dust there. 6. Whilst standing in the vicinity of the Apthorpes, Mr Winter saw the offender driving his Landcruiser at some speed towards the two men. The offender stopped the car, spoke briefly to the Apthorpes, and then drove off, again at some speed. The Apthorpes got into their car and drove to another area of the Tip. They saw the offender driving away from the Tip. Security cameras filmed the car's departure at 4:53 – to 4:55pm. It was being driven erratically and at speed. A staff member at the Tip was sufficiently concerned by the manner in which the vehicle was being driven as it departed the Tip that he photographed it. 7. At the scrap metal pile Mr Winter continued around its circumference until he saw Mr Mears lying face down on the ground. Mr Winter saw that Mr Mears' head was closest to the pile and there was a pool of blood around his body. A clear tyre tread pattern could be seen marked out in white dust on Mr Mears' black t-shirt. Mr Winter called the emergency operator, and then did what he could to assist his friend, but he could detect no pulse or respiration. 8. An air ambulance arrived, and paramedics confirmed that Mr Mears was dead. He was 52 years old. His body was taken to John Hunter Hospital, where a post-mortem examination was later conducted. The forensic pathologist observed very significant injuries, including a collapsed lung, multiple rib fractures, fractures to the spine, and fractures to the neck and hinge joint at the base of the skull. There was bleeding onto the surface of the brain. The injuries, which were not survivable, were consistent with Mr Mears having been run over by a car, and the cause of death was determined to be blunt force trauma to the head and chest. 9. Expert forensic analysis of the circumstances surrounding Mr Mears' murder establishes that the offender reversed his Landcruiser into Mr Mears, as Mr Mears was standing with his back turned to the vehicle. Although the impact was at low speed, there was no sign of any breaking by the vehicle but rather, a tyre scuff mark consistent with some acceleration. The load of one rear wheel of the Landcruiser, 500 kilograms, went across Mr Mears' back, neck, and lower skull, with the weight of the car crushing him. 10. Having run Mr Mears down from behind, the offender drove out of the Tip. He went to his father's property at Lovedale where he concealed his Landcruiser in a shed. Over the next three days he cleaned the vehicle, and took steps to remove other evidence of what he had done from it, removing its distinctive tyres and disposing of them. During that period, the offender saw Lee-Alice Mears at an hotel and gave her his condolences for the death of her father. 11. The offender was arrested on 8 July 2020, inside his father's shed, on the ground under the Landcruiser, in the process of cleaning it with a rag. His father was cleaning the bull bar at the front of the vehicle. 12. The offender declined to answer any questions about the death of Mr Mears. The Effect of the Crime on Others 1. For those closest to Mr Mears, the news of his death came unexpectedly in the early hours of 6 March 2020. The grief of that terrible news was overwhelming for Mr Mears' six children, his former wife, grandchildren, and sisters and brother. Their suffering was movingly described in Victim Impact Statements read to the Court by Tracey Mears, Lee-Alice Mears and Shayna Mears on 21 July 2020. Shayna Mears referred to her father as her family's warrior and protector and told the Court of the devastation the family experienced when he died, and afterwards. Lee-Alice Mears said her father was a true friend to her, and beloved of all his family. Tracey Mears gave the Court some sense of the magnitude of the trauma experienced by her, and the couple's children and grandchildren, particularly in circumstances where their pain has been greatly magnified by the added burden of being forced to navigate their way through the criminal justice system. The way Mr Mears died haunts his family, who cannot but picture in their minds his last moments. 2. Although he lost his own parents at a young age, Shane Mears had a large family in Australia and New Zealand and he was clearly deeply loved by all three generations, and is greatly missed. No sentence that the Court could impose on the offender can ever make good Mr Mears' loss to his family, or repair the damage done for this crime. Perhaps the finalisation of these proceedings will, as Mrs Mears hoped, allow her and her family to begin to heal. Seriousness of the Offence 1. All murders are serious because such a crime involves the violent destruction of a human life. The facts, matters, and circumstances that go to the gravity of this crime of murder are these. 2. The offender's crime was not one that involved any planning, but was spontaneously and opportunistically committed when, by unhappy chance, he saw Mr Mears at the Tip. Whilst the Crown argued that there was some limited planning with the offender, becoming aware of Mr Mears' presence, driving around the pile of scrap metal looking for him with a view to harm him, the evidence is too fragmentary to establish that proposition beyond reasonable doubt. 3. Established to that very high criminal standard of proof is that the offender saw Mr Mears at the Tip coincidentally and, having seen him, he deliberately drove his Landcruiser into Mr Mears, knocking him to the ground, thereafter driving over the top of him. On the expert evidence summarised in the Statement of Facts, it can be readily inferred that the offender reversed his car into Mr Mears as Mr Mears stood facing in a direction away from the vehicle. He thus had no opportunity of escape, or of taking defensive action. The crime was, as Shayna Mears suggested in her Victim Impact Statement, and the Crown submitted to the Court, cowardly. 4. The deliberation of the offender's act, and the high probability that death would result from it, leads to the conclusion that the offender's intention in so acting was to kill Mr Mears. The offender is a car enthusiast - his vehicle had been modified in a way that suggests his close interest in and attention to the vehicle, and he would have been well aware of its size and likely weight. He would have understood that a human body subjected to the passage across it of a weight of that nature would very likely result in death. Against the background of deep antagonism that existed between the two men, the evidence points inevitably to the conclusion that, in running him down, the offender intended that Mr Mears should die. In the circumstances of this matter, an intention to kill heightens the seriousness of the crime. 5. The offender submitted that it is that very background of hostility that lessens the seriousness of his impulsive decision to run Mr Mears down, because Mr Mears' conduct towards him in the preceding months had been provocative. Provocation which is not so extreme as to constitute a partial defence to a charge of murder can still mitigate the gravity of an offence: s 21A(3)(c) of the CSP Act. Whether it in fact has that effect will depend upon the circumstances of the provocation. 6. The offender argued that he had been subjected to threats made by Mr Mears on three occasions prior to 5 July 2020 and was provoked by them. In early 2020 Mr Mears saw the offender at an hotel at Cessnock and yelled at him, to the effect that he was "a dog". He challenged the offender to accompany him to the front of the hotel and fight. A staff member of the hotel intervened, and the offender left. 7. On another occasion, the two men encountered each other at the home of a mutual friend or acquaintance. Mr Mears, who must have heard this information through others, said to the offender "So you're the one that wants to kick my head in". The offender made no response, but left the house hurriedly. 8. The offender's wife, Regina Forbes, deposed in an affidavit affirmed on 19 July 2023 that, in about April 2020, Mr Mears drove to the back of her and the offender's home and, getting out of his car, yelled "I'm going to get you Bidner". Making no move to do so however, he left. 9. The offender relies upon these incidents as evidence of provocation. The Crown submits that the offender should not receive the ameliorating benefit of a finding of provocation in circumstances where Mr Mears' anger was caused by his awareness of the savage beating the offender administered to Mr Ellem in April 2019. In determining these competing submissions, it must be noted that the offender did not give evidence before the Court, and thus there is no direct evidence of his motivation in murdering Mr Mears. 10. It may be inferred from the agreed facts that the murder of Mr Mears was connected to the rancour between the men, but there is no reliable evidence that the offender felt provoked into running Mr Mears down because of it. There is no evidence at all that Mr Mears was aware of the offender's presence at the Tip on 5 July 2020, and every reason to conclude that he was run down without having exchanged so much as a word with the offender. There was no provoking conduct by Mr Mears on 5 July 2020. The incidents said to be provocation occurred, on the evidence, some months prior to the murder, and could not be regarded in any sense as recent. It was evidence of enmity between the two men, in which each appears to have voiced threats concerning the other, but it does not amount to evidence of provocation such that the offender's moral culpability for his crime can be regarded as reduced. I do not accept on balance that the offender was provoked by Mr Mears. The evidence of a relationship of antagonism between the offender and Mr Mears provides the background to the offence; it does not mitigate it (see Shaw v R [2008] NSWCCA 58, at [26]). This is a crime behind which is most likely to be heavy drug use, and the aggression and impulsivity that comes with the consumption of large quantities of methylamphetamine. 11. The offender used his car as a weapon with which to murder Mr Mears, but the Crown submitted that the Court should not treat that feature as a matter of statutory aggravation, and I have not done so. It is, however, a feature relevant to the assessment of the gravity of the offence, since, in the overall context of how a murder may be affected, a 2-tonne motor vehicle makes for a formidable weapon, and one against which Mr Mears could have had no defence. Its use ensured not just his death, but that he suffered multiple, grievous, injuries. 12. The spontaneous and unplanned nature of the crime, the fact that the offender attacked Mr Mears from behind without warning, the means chosen to inflict death, the intent to kill, and the shocking nature of the injuries occasioned to him, are the features of most relevance to the assessment of the gravity of this most serious crime. 13. Although this has no bearing on the gravity of the crime, the offender's overall criminality is heightened by the fact that he was in the community subject to conditional liberty by virtue of the Community Corrections Order ("CCO") imposed upon him by the Local Court at Cessnock on 25 July 2019 at the time he committed this crime. Moral Culpability 1. The offender's moral culpability is high. Nothing in his subjective case, to which I will shortly turn, diminishes it. Other Evidence in the Crown Case 1. The Crown took issue with the veracity and reliability of a significant portion of the offender's subjective case on sentence and relies upon the evidence that was before the Court during the fitness inquiry heard in December 2022, tendered as Ex SE in these proceedings for that purpose, to argue that the offender is not an historian whose unsworn accounts of relevant events can be accepted, even on balance. The evidence is summarised in the Court's judgment on the issue of fitness handed down on 7 December 2022: R v Bidner [2022] NSWSC 2022. It is not intended here to again set out that material, although I will refer to it when considering the evidence that the Court can accept in determining the proper sentence to be imposed. It may be taken as incorporated into these reasons. 2. The offender's criminal and custodial histories were in evidence, as Exs SB and SC respectively. 3. The offender has a criminal history with a number of adverse entries, including for offences of violence. In June 2009 he was given the benefit of a dismissal pursuant to s 10 of the CSP Act for offences including assault occasioning actual bodily harm and resisting police. In each of 2010 and 2011 the offender was dealt with for traffic offences. He next appeared in 2013 for three offences of driving whilst disqualified. Although he received a bond of 2 years duration for that offence, the bond was called up in June 2015, and a one-month sentence of imprisonment was imposed upon the offender. The call-up was evidently due to the commission of further such offences, with the offender gaoled for 6 months for one count, and twelve months for others. He was also dealt with on that occasion for a string of other offences, including not stopping in a police pursuit, multiple counts of failing to appear, having goods in custody, receiving stolen property, taking and driving a conveyance, being carried in a conveyance, and offences connected with the possession and unsafe keeping of a shortened firearm without license. Two convictions for resisting a police officer, and one for having a knife in a public place, followed that same month. 4. In July 2019 the offender was convicted of assault and made subject to a CCO for 3 years from 27 July 2019. On the same occasion the offender received two further CCOs for two counts of destroying or damaging property. He was called up for breaching the three orders, with a further CCO imposed on 7 September 2020. Another offence of driving whilst disqualified that was before the Local Court on that date was penalised by a fine. 5. The following year, when he was in custody on remand for both the present offence and two offences before the District Court, the offender received a prison sentence of 6 months in the Local Court for an offence of dishonestly obtaining an advantage by deception, committed in April 2020. That sentence commenced on 22 March 2021, and expired on 21 September 2021. 6. On 17 March 2022 the District Court at Newcastle imposed an aggregate sentence of 3 years imprisonment for offences relating to the April 2019 assault upon Mr Ellem. The sentence commenced on 8 November 2020 and will expire on 7 November 2023. A 20-month non-parole period ("NPP") that expired on 7 July 2022 was fixed. Subjective Case 1. The offender, who was aged 30 when he murdered Mr Mears and is now 33, did not give evidence. 2. He tendered a letter he had written, in which he expressed his apologies to everyone affected by his crime and said he was remorseful. He acknowledged the role that his drug use had played in his criminal lifestyle, and in the commission of the offence. He said that his time in custody since arrest on 8 July 2020 had been a time of self-analysis and reflection, leading to a determination to become a better person. 3. The offender set out in some detail what he said had been a very dysfunctional childhood, in which he witnessed domestic violence and drug use as a feature of normal life. His parents separated when he was aged 2 years, and the offender lived with his father, whilst his sister remained with their mother. After his father entered a relationship with another woman, the offender says in his letter that he was subjected to violence and abuse at the hands of his step-mother, whilst daily witnessing her and his father's drug and alcohol use. He regularly saw violent fights between them. With that example and background, the offender asserts that he began using cannabis at a young age, and methylamphetamine by the age of 20. He said that the drug use was a "coping strategy" to help him with his background of childhood abuse. 4. After entering custody following his arrest for Mr Mears' murder the offender says that he "hit rock bottom" and realised that he had to change his life. He ceased using drugs and says that he has been drug free for 33 months, having participated in a number of courses and programmes offered to him in custody directed to drug rehabilitation and a positive lifestyle. He tries to assist other inmates struggling with drug addiction, and is a mentor to others, recognised as such by Corrective Services staff. His efforts have been recognised with the award of positions of trust to him, such as Head Sweeper and Wing Delegate. 5. The offender is confident that he will not return to drug use. He says he feels sorrow and remorse everyday for what he has done. 6. The offender read and relied upon four affidavits. His wife, Regina Forbes, is the mother of the offender's four children, and step-mother to his eldest son to an earlier relationship. She deposed to the offender's close relationship to his children, the youngest of whom was born after his incarceration, and to the suffering of the children in dealing with their father's absence. Ms Forbes also described the aftermath of the two motor vehicle crashes in which the offender was involved in 2014 and 2016. After the first, Ms Forbes said that he husband "flat-lined" and had to be resuscitated. After the second, his injuries were so serious the offender was placed on life support. Ms Forbes remains loyal to the offender and will maintain their family relationship and continue to support him. 7. The offender's sister, Rachel Irvine, in her affidavit of 14 July 2023, said that she and the offender are close, having had to "look out for" each other when, as children, they were exposed to violence in the family home. Separated from him at a young age she later became aware of his drug use but he never discussed it with her. She saw his grief when a child was stillborn and observed his increasing drug use. Since the offender has been in prison Ms Irvine has visited him regularly and will maintain her support of him. 8. The offender's lifelong friend Daniel Brown gave an account of the offender as an employee of his home maintenance business, where he was reliable, hardworking, and showed potential for advancement. Mr Brown intends to employ the offender again upon his release from custody. 9. The final affidavit was sworn on 20 July 2023 by the offender's solicitor, Jeanette Fahd. Ms Fahd obtained Justice Health and Corrective Services records and has provided some extracts from them. She also arranged for the offender to see Dr Olav Nielssen, forensic psychiatrist. 10. The Justice Health records note frequent requests from the offender for additional bedding and footwear to accommodate a chronic back injury, an injury referred to in supportive letters to NSW Corrective Services ("NSWCS") from the offender's general practitioner, dated 3 December 2021 and 5 May 2022. There are other references in the notes recording the offender contracting the COVID-19 virus in July 2022 and being cleared from isolation on recovery in early August. His complaints of feelings of stress as his trial date approached are also noted. A request to be placed "medical one out" in a single person cell that the offender made in February 2022 was supported by his assertion that he had been sexually assaulted as a child and needed the safety of a single cell. 11. Other records note the offender's need for physiotherapy, his bright mood without melancholia and, as his trial approached, his increased anxiety. A note from a nurse, against which no date is recorded, states that the offender "was high on ice when committing crimes". 12. Other NSWCS records certify the offender's participation in and successful completion of many courses directed to self-improvement. He has completed course in hygiene operations, "success for life", cannabis awareness, thinking skills, and a positive lifestyle programme, among others. Some limited case notes from the Offender Information Management System record positive assessments made by NSWCS staff of the offender. On 16 April 2021 his respectful and positive attitude were commended. His solid participation in programmes was referred to on 3 and 23 May 2021, and 16 November 2021. His appointment as a Peer Mentor was recorded on 31 May 2021, and his successful work in that role referred to on 23 September 2021 and 29 October 2021. He was referred to on 23 September 2021 as going "above and beyond" in completion of duties as Sweeper. 13. A lengthy entry from 4 May 2022 recorded the offender's distress at his outstanding court proceedings for this offence, and an earlier diagnosis reported by the offender of depression. Drug analysis conducted by NSWCS on samples provided by the offender on 20 April, 30 May, and 23 July 2021 did not detect drug use. 14. The report from Dr Olav Nielssen produced by Ms Fahd is dated 20 July 2023. Dr Nielssen obtained a history from the offender when he saw him on 28 June 2023. The offender referred to commencing drug use at a young age to help him cope with early childhood abuse. He said that at the time of Mr Mears' murder he was using methylamphetamine five to seven times daily. The offender referred to the motor vehicle crashes in which he had been involved and said that he had sustained brain damage, after which he had problems with his memory and other intellectual function. He described having become very deeply depressed in prison. 15. The offender reported childhood physical and emotional abuse from his step-mother, and sexual abuse at school. He said: "…he had experienced constant feelings of depression when not affected by methamphetamine, which he had attributed to events in his childhood. He reported chronic insomnia, negative thinking, anxiety and apathy. He said that he had thought about suicide, but had never attempted suicide." 1. The offender gave an account of a peripatetic childhood, as his father and step-mother moved around New South Wales with his father working in the mines. He completed Year 10 at school but has undertaken no further study. The offender gave his interests as cars and motorcycles and raising show poultry. For the future the offender said he intended to remain drug free, stating that he "hated that it took someone to lose their life" for him to realise that his drug use was destructive. He expressed his deep regret for what he had done to Dr Neilssen. 2. On examination Dr Nielssen noted no signs of psychosis or neurological disorder. The offender did not seem pervasively depressed, and his mood was in keeping with his circumstances. He demonstrated no impairment in concentration during the interview, and his memory seemed intact. Having assessed the offender and considered the material supplied to him, Dr Nielssen opined that the offender had an acquired brain injury, a depressive illness in partial remission, and a substance use disorder in remission. He thought that the offender's residual impairment following a brain injury probably contributed to impulsivity at the time of Mr Mears' murder. As any brain injury was likely to have been minor and the offender's recovery good, the doctor did not think it posed any problems for the offender in a custodial environment, where he appeared to manage. 3. In oral evidence on 21 July 2023 Dr Nielssen conceded that he had spoken to the offender for only one hour, accepted what he was told at face value, and could not say with precision whether the offender was experiencing any lingering effects from a brain injury on 5 July 2020. 4. Other material in the offender's case includes correspondence from Jacob Little of "About Time for Justice", an advocacy group for victims of childhood abuse, that the offender contacted in August 2022, and three chapters from the "Bar Book Project", concerning "Childhood Exposure to Domestic and Family Violence", "Incarceration of a Parent or Caregiver", and "Early Exposure to Alcohol and other Drug Abuse". "Comparable Cases" 1. The Court was referred by the offender to seven cases as comparable. I have considered each of them and some others. A short summary of each will be annexed to the published version of this judgment. Considerations Relevant to Sentence Circumstances of the Plea 1. I have noted already that the plea entered by the offender was entered at a very late stage in the overall proceedings. The offender was charged with Mr Mears' murder on 8 July 2020 and entered a plea of not guilty in the Local Court. He was committed for trial and entered a plea of not guilty at arraignment before this Court. The first date fixed for his trial in late 2022 was vacated after the question of the offender's fitness was raised days before the trial was due to start. After the offender was found fit, a second trial date was fixed and the trial commenced. The plea of guilty came only after the offender received an expert report his legal representatives had commissioned that was generally in accordance with the Crown case against him. 2. The plea must by law be recognised by a discount of 5% on the sentence that would otherwise be imposed. It can say nothing about remorse, however, a feature to which I will return. Questions Concerning the Subjective Case 1. The offender tendered a large volume of material in his case, including whole chapters of a publication. The text extracts are generic and of little real assistance, unless information in them can be directly tied by evidence to the the offender's situation. In the offender's case, making that link depends largely upon acceptance of the offender's untested and unsworn, and frequently contradictory, account of his own circumstances. 2. The Crown argues that the offender has proven to be such a poor historian that his unsworn assertions should be given limited or no weight. There is some force in that submission. 3. As the evidence before the Court in December 2022 concerning fitness established, the offender has given widely varying accounts of himself to different professionals at different times, and it is open to conclude that he has tailored the information provided to best advantage himself. 4. When the question of fitness was under examination the offender's presentation differed with each expert who assessed him, such that, based upon the history he gave – which included having sustained a brain injury in the past - and his presentation most experts accepted that the offender had some level of cognitive impairment that was sufficiently profound as to render him unfit to be tried. Only where more objective assessment tools were employed was it demonstrated that the offender performed, either, in the generally borderline to low average range; or, so profoundly but inconsistently cognitively impaired as to be shown to be malingering. 5. The offender has claimed to daily regret his crime, and feel deep remorse for it, but he did not subject himself to cross-examination, choosing instead to tell others about it and write a letter to the Court. What he said to others has the flavour of what has been elsewhere described as "the ritual incantation" that may be given by an offender facing sentence who knows that expressions of remorse will ordinarily attract a lesser penalty. There is also some information that casts doubt on the genuineness of his claim. To Dr Nielssen the offender described entering a plea of guilty on the first day of his trial after considering legal advice and with the benefit of the clarity of thought following treatment with anti-depressants. The record demonstrates that the offender entered a plea of not guilty on the first day of his trial, and the Court heard evidence from four witnesses. The plea came only after the offender's intended case was fatally undermined by a report obtained from his own expert collision reconstructionist. 6. The NSWCS and Justice Health records in evidence do not support a conclusion that the offender was so seriously depressed during the three years of his remand that he could not think clearly. Indeed, for much of the period of the offender's incarceration he seems to have been, as one entry said, "travelling well". 7. The plea appears to be attributable more to acceptance of the weight of the evidence than to remorse and a wish to make amends. 8. In his articulate and expressive letter, the offender referred to his remorse and daily sadness for his crime. However, two things are notable about those untested assertions. Firstly, most of the letter is focused on the offender's asserted history of childhood abuse and the drug habit he attributes entirely to it. There is very little said by the offender about his crime. Even his expressions of regret do not actually mention it. For example, on the first page he said: "I deeply regret and I'm very sorry to everyone that I have hurt or affected due to my actions that lead to my current imprisonment. I am truly sorry for what I have done." 1. The only other direct expression of remorse in the seven-page document is on page 5, where the offender said: "I know the victim's family is unlikely to ever forgive me but I still feel sorrow and remorse for what I did and regret it every day." 1. Notably, the offender did not mention Shane Mears by name at all, nor acknowledge the nature of his actions, or the terrible pain he has caused. 2. Secondly, as the Crown pointed out, the letter the offender wrote in these proceedings is very similar to the letter he wrote to the District Court when he was sentenced for the attack upon Mr Ellem in March 2022, to the extent that whole passages are identical. A letter with expressions of regret that are in part copied from a document concerning an entirely different crime on a different occasion, does not lend itself to a conclusion that the sentiments are genuine. 3. Section 21A(3) of the CSP Act allows a sentencing court to treat remorse as a mitigating feature, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both). 1. On the available evidence the Court cannot conclude that those requirements have been met. I am sure that the offender does regret his conduct, but probably his regret is principally for the consequences to himself and his family, rather than because of true remorse for murdering Shane Mears. 2. The offender's account of his dysfunctional upbringing is also largely unsupported and to some extent, contradicted by other evidence. Whilst the offender's sister referred to her and the offender's shared traumatic childhood, the siblings lived together only for the first two years of the offender's life, after which the family broke up. The offender's account of abuse and dysfunction largely focused on the conduct of his step-mother, in a home in which his sister did not live. The offender's father, Michael Bidner, whilst acknowledging the abuse of his son by his second wife "behind his back", gave Dr Neilssen an account of his son doing well in school, winning awards, and being appointed class captain, until his conduct deteriorated after a series of family bereavements from around 2005. That history is not at all consistent with what might be expected of a child who was drinking heavily, and taking drugs, from as young as 10 years old. 3. Michael Bidner gave no account of the extent of any abuse of the offender by his second wife, and nor did he acknowledge a family environment of drug use and violence. That may be due to his own reluctance to admit to these failings, but whatever the reason for it, his account is not supportive of the offender's account of extreme dysfunction. 4. The offender has, in these proceedings, referred to his Aboriginality as a matter that can attract mitigation, and as related to his background of childhood deprivation. Other evidence is to the effect that the offender has not previously claimed to identify as Aboriginal. In some of the Justice Health material that was before the Court in 2022 (and now part of Ex SE) the offender selected the box for no Aboriginal heritage on forms he was required to complete. On 4 May 2022 a NSWCS case note records only that the offender is: "Aboriginal inmate not interested in programs or services. doesn't feel any connection – it was never talked about growing up" (rendered as in original). 1. There seems to be at least a strong possibility that the offender has chosen to assert his identity at this time, and couple it with claims of a severely dysfunctional upbringing, because he believes or hopes that it may mitigate the sentence to be imposed. 2. Similarly, there does not appear to be any complaint by the offender of child sexual abuse, even to medical practitioners in the course of treatment, that is any earlier than February 2022 when requesting a single cell. Long delayed complaint of childhood sexual abuse is a well-known feature of such suffering and ordinarily nothing should be drawn from it. Given the offender's history of unsupported, exaggerated, or even false claims with respect to his background, however, some caution is necessary with respect to his assertions concerning assaults of this nature. 3. Even in the various claims surrounding the severity of the offender's injuries in past motor vehicle crashes there is inconsistency and reason to doubt that they were quite as severe as asserted, or had the ongoing effects the offender has referred to. As the Court concluded in R v Bidner 2022, the evidence that the offender sustained a brain injury is far from persuasive. These claims are either mistaken, or intended to mislead. Whatever may be the origins and purpose of such claims, I cannot accept their veracity on balance. 4. It is difficult to know how much of Mr Bidner's claims have any accuracy to them. At most, and on balance, the Court accepts that he experienced family disharmony, and that he began to use drugs as, most likely, a teenager of 16 or so years, as his father said. I cannot conclude that the two are connected, or that childhood dysfunction has, through consequential drug use, any causal role to play in the events of 5 July 2020. Drug use of itself certainly did, with the offender having used "ice" probably multiple times earlier that day, and inevitably being affected by it. As Dr Nielssen said, users of this drug are often impulsive and aggressive, and this is likely to have been the offender's demeanour when he murdered Mr Mears. Drug use is not a mitigating feature. Rehabilitation 1. By contrast, the offender's assertions to good conduct in custody and earnest efforts to rehabilitate himself are supported by the objective material. Such urinalysis as the Court has been provided with establishes that, on those occasions during his present term of imprisonment when he has been drug tested, the results have been negative. He has completed numerous courses, all directed to assisting him to remain free of drug use and improve his lifestyle. The offender has conducted himself well in prison, earning praise from prison staff and, it appears, the respect of other inmates. 2. That evidence supports his claims to have finally, at 33 years of age, come to understand the negative consequences of drug use, and to have resolved to remain drug free in the future. 3. The offenders' prospects are considered to be positive if somewhat guarded. Other matters 1. The Court also accepts and has regard to the distress of the offender's children. Whilst there will be negative consequences for the offender's family because of his incarceration; that is the inevitable, tragic, result of his crime. Consistently with what was said in R v Edwards (1996) 90 A Crim R 510, by Gleeson CJ at 515, it cannot mitigate the sentence to be imposed upon the offender. It is a feature that is relevant to his on-going experience of a custodial environment, and I have taken it into account in that way. 2. It is also accepted that the offender, in common with all prisoners, experienced particularly difficult conditions in custody following the outbreak of the COVID-19 pandemic, and that is an ameliorating factor. Special Circumstances 1. The offender submitted that he should receive the benefit of a finding of special circumstances to support his continued rehabilitation upon release from custody. Although the proportion of sentence that will constitute the non-parole period as a consequence of the ordinary statutory ratio is likely to be sufficient for that purpose, the principle of totality will require some modest adjustment of the ratio, and to that extent a finding of special circumstances is made. Deterrence 1. The sentence imposed today must operate to deter the offender, a feature of some relevance given that he was subject to conditional liberty at the time of Mr Mears' murder, and has a criminal history for offences of violence. It must also deter others. Most adults in our society have access to a motor vehicle. Those who might be tempted to use them to deliberately harm others should understand that the courts will punish offenders who do so severely. Commencement of Sentence 1. The offender entered custody with respect to this offence on 8 July 2020. He is not entitled to have his sentence commence on that day however, because of two intervening sentences imposed upon him. 2. On 22 September 2021 the offender was sentenced to a term of six months imprisonment to date from 22 March 2021, which expired on 21 September 2021, for an offence of dishonestly obtaining an advantage by deception. The charge was laid on 20 May 2021, by which time the offender was already in custody for this offence and those against Mr Ellem. It appears that there was no bail for that offence. That offence is wholly unconnected with the murder of Mr Mears. 3. On 7 March 2022 the offender received a term of 3 years imprisonment commencing on 8 November 2020 for the assault upon Mr Ellem. That term is still current although the NPP of 20 months expired on 7 July 2022. Except insofar as it gives the background to the events of 5 July 2020 this offence also has no relationship with the crime of murder. 4. Thus, from 8 July 2020 to 7 November 2020, a period of 122 days on my calculation, the offender appears to have been on remand solely for this offence. Since admission to parole would ordinarily have occurred for the District Court sentence on 7 July 2022, the offender can be taken as in custody from that date with respect to this matter. There is no reason, other than the principle of totality, to allow for any concurrency between the three sentences. 5. The offender is entitled to a backdate from 11 March 2022, to allow for the 122 days on remand following arrest. Whilst the Crown submitted the offender should not receive the benefit of that four or so month period because of the generosity of the concurrence built into the other sentences, it is not the role of this Court in imposing sentence to seek to negative the effect of the sentencing orders of another court. Determination 1. The Court's task in imposing sentence is to take into consideration the credible evidence before it and impose a sentence that addresses the statutory purposes of sentencing provided by s 3A of the CSP Act. They are to adequately punish the offender and protect the community from him, to denounce his crime and make him accountable for it; to deter him and others from committing like offences, and to promote his rehabilitation. 2. In determining the sentence to be imposed I have taken into account the gravity of the murder of Mr Mears, and the other credible evidence before the Court. This is a very serious crime where a defenceless man going about his ordinary life was deliberately driven down by the offender using a large motor vehicle, severely injured, and left to die in the dust. As I have said, this was a cowardly crime. As with most murders, great grief has been left behind for the many who loved him. The sentence cannot, however, reflect the value of Mr Mears' life. I hope Mr Mears family will understand that the sentence cannot exact a proper price for his life or their suffering. No prison sentence, no matter its length, could achieve that. Sentence 1. Having been convicted of the murder of Shane Mears the offender, Adam Bidner, is sentenced to a term of imprisonment for 24 years and 8 months, commencing on 11 March 2022, and expiring on 10 November 2046. There will be a non-parole period of 18 years, expiring on 10 March 2040. ********** MURDER BY MOTOR VEHICLE Name Plea Sentence Criminal Record Summary · Intentionally drove motor vehicle at deceased while highly intoxicated. Incident recorded on CCTV R v Ward [2010] NSWSC 304 · Offender expressed immediate and continuing remorse (only matter of mitigation) 39 years old at sentence Guilty verdict – PNG Total: 25 years · Did not intend to kill but at least intended to inflict very serious injury NSWSC Plea to manslaughter rejected NPP: 18 years and 9 months Mainly for traffic matters – PCA and drive unlicensed and suspended. Some domestic violence offences inc. malicious wounding. Not an aggravating factor · Not impulsive but not long in planning 22 April 2010 · Suffers from bipolar but mental disorder not related to the offending. Also suffers from ADHD, depression and substance abuse disorder Howie J · Two counts of drive with mid-range PCA and while unlicensed were relevant to objective seriousness · Mid-range of offending · Deliberately drove over deceased as he lay prone on a footpath · Used car as a weapon of intervention in a street fight - no evidence of previous animus between the two R v Kutschera [2008] NSWSC 1271 · Impulsive and reactive but offender did intend to kill 26 years old at sentence Total: 26 years and 8 months · Offender fled the scene and failed to call ambulance NSWSC Guilty verdict – PNG NPP: 20 years Relatively minor · Offender washed the wheels of his car 28 November 2008 · Unknown whether the offender was intoxicated Fullerton J · Offender did acknowledge his guilt or give any explanation for the murder · History of polydrug use · Mid-range of offending · The offender, driving a dual cab utility, ran into the deceased while he was riding his bicycle. Offender then drove over the deceased four times · The deceased and the offender were casual acquaintances. They had an intoxicated disagreement prior to the incident which humiliated the offender R v Rowe [2019] NSWSC 1592 · Intention to kill established beyond reasonable doubt 27 years old at sentence Total: 23 years Prior record containing driving offences but no violent offences. Never been in adult custody · Offences were deliberate and involved planning, albeit in a very short time frame NSWSC Guilty plea in the Local Court – 25% discount NPP: 17 years 6 months Not an aggravating factor but disentitles him to leniency · Offender at least moderately affected by alcohol and drugs at time of offence 11 November 2019 · Offender diagnosed with ADHD and substance use disorder Walton J · Offender accepted responsibility and expressed remorse and contrition · Reasonably good prospects of rehabilitation · Objectively very serious · Offender waited for his ex-wife's new partner to return home before running him over and repeatedly hitting him in the head with an axe R v Tran (No 3) [2022] NSWSC 1661 · Substantial impairment was the only issue at trial (not proven on balance of probabilities) 79 years old at sentence Guilty verdict – PNG Total: 20 years · Born in Cambodia and lived under the regime of the Khmer Rouge – lived in forced labour and refugee camps NSWSC Plea to manslaughter rejected NPP: 15 years No prior record · Intention to kill formed after the car engine was engaged 9 December 2022 · Suffered from PTSD and depression. Offender living a very lonely and isolated life at time of offence Button J · No expression of remorse whatsoever · Objectively extremely grave R v Muir (CCA, unreported, 27 June 1995) · Deliberate murder of a young Aboriginal woman by driving a truck at least once, and possibly multiple times, over her head NSWCCA Guilty verdict in lower court Total: 22 years and 8 months · On the night of the murder, the deceased, the offender and his work colleagues were drinking together 27 June 1995 Appeal against conviction and sentence dismissed NPP: 17 years No prior record · The offender and deceased were left alone for approximately 20 minutes before she was found dead in a nearby street Gleeson CJ, Sheller JA and Hulme J · Muir appealed (unrepresented) on the basis of improper conduct of crown witnesses and jurors, evidence tampering, severity etc. · Crime of the utmost seriousness · The offender got into a drunken altercation with a group of people, including the deceased, after leaving a tavern Regina v Hall [2001] NSWCCA 202 · The offender drove at the group and hit two people who were seriously injured but not killed. The offender then did a U-turn striking those who were rendering aid to the victims and killing the deceased 22 years old at time of offence · Offender acted with a deliberate and cold-blooded determination to exact revenge upon those who he believed had wronged him NSWCCA Guilty verdict in lower court Total: 19 years and 6 months N/A · No provocation 25 May 2001 Appeal against conviction and sentence dismissed NPP: 14 years and 6 months Grounds of appeal: Meagher JA, Sully and Howie JJ 1. The trial judge erred in his directions as to recklessness. 2. The verdicts on counts 7 and 9 cannot be supported on the evidence. 3. His Honour erred in failing to allowing the jury to consider manslaughter by reason of provocation · Offender stole the deceased's vehicle and during the deceased's attempt to flee the scene the offender ran him down and killed him · Constructive murder - offender did not intend to run the deceased over or to cause him serious injury R v JK [2012] NSWSC 710 · Juvenile with both a mental illness - paranoid schizophrenia, cannabis dependence and conduct disorder – and intellectual impairment Juvenile offender Total: 15 years · Very limited cognitive functioning NSWSC Guilty plea on arraignment in the Supreme Court – 17.5% discount NPP: 10 years Criminal record for matters of dishonesty inc. break, enter and steal and the illegal use of a conveyance. Two prior matters that involved the use of violence · Offender affected by alcohol at time of offence 29 June 2012 · From a remote/isolated Aboriginal community, grew up on a mission. Exposed to alcohol and substance abuse and violence his whole childhood Harrison J · Witnessed a baby being murdered as a child. Father died when he was 9 or 10 years old · Started drinking and using drugs at 14 years old · Left school in year 7 or 8 R v Meakin (No. 3) [2016] NSWSC 1602 47 years old at sentence NSWSC · Offender deliberately mounted the kerb and drove onto the nature strip to strike deceased 18 November 2016 · Offender had been consuming alcohol for approx. 10 hours at a hotel before getting into an altercation with the deceased Davies J · No psychological or psychiatric issues Meakin v R [2018] NSWCCA 288 Guilty verdict – PNG Total: 24 years · Offender reported childhood abuse by stepfather NSWCCA Quash the conviction and order a retrial NPP: 18 years Prior record (though not lengthy) extends back to his childhood and involves offences of violence and driving whilst under the influence of alcohol. · No remorse – maintains the events were an accident 14 December 2018 Not guilty to murder; guilty to dangerous driving occasioning death in circumstances of aggravation Total: 7 years Offender has previously served a custodial sentence · Prospects of rehabilitation are guarded - unprepared to accept his alcohol and anger management problems or what really happened that night Macfarlan JA, Hoeben CJ/CL and Fagan J Judge alone trial - R v Meakin [2019] NSWSC 1311 NPP: 4 years · Special circumstances not found R v Meakin [2019] NSWSC 1555 Grounds of appeal: 50 years old at sentence 1. Verdict was unreasonable and unable to be supported by the evidence NSWSC 2. Error in leaving particular evidence to the jury 8 November 2019 Hidden AJ VEHICULAR MANSLAUGHTER · Manslaughter by unlawful and dangerous act · Central issue was whether the offender used a motor vehicle or boulder to kill the deceased R v Gordon (No 8) [2017] NSWSC 574 · HH found the offender fatally injured the deceased by intentionally reversing over him 45 years old at sentence · Offending was not premeditated, but was an impulsive act resulting from gross alcohol intoxication NSWSC Guilty verdict – PNG Total: 10 years Not a long record but clear the offender has a record of violent impulse when intoxicated. Offender never served a custodial sentence · Offender and deceased had been drinking together before incident. They began arguing which escalated when they got into a car together 12 May 2017 Plea to manslaughter rejected - 15% discount for offer NPP: 6 years and 6 months · Offender almost immediately regretted running over the deceased and attempted to obtain assistance Campbell J · No history of mental illness. History of poly-substance abuse · Suffered a heart attack and diagnosed with cardiovascular disease soon after being taken into custody · Risk of reoffending is relatively low · A somewhat serious example of manslaughter · First charged with murder, in the days before the trial he offered to plead to manslaughter. On the first day of trial his plea was accepted in full satisfaction · The offender and deceased, unknown to each other, were both drinking at a hotel. They had a drunken, verbal altercation which resulted in the offender hitting and killing the deceased with his car Young v R [2009] NSWCCA 298 · HH found that the applicant had deliberately turned the vehicle towards the deceased intending to frighten the deceased but accidentally killed him due to his state of intoxication 22 years old at time of offence · Offender drove away from the scene but was apprehended soon after arrest NSWCCA Guilty plea to manslaughter – approx. 12.5% discount as late plea Total: 8 years No prior record, one minor traffic violation · Offence among the more serious of its kind 18 December 2009 Leave to appeal granted, appeal dismissed NPP: 5 years · Offence was out of character, he was genuinely remorseful, he had good prospects of rehabilitation and was unlikely to re-offend McCellan CJ at CL, Hidden and McCallum JJ Grounds of appeal: 1. Error in discount 2. Error in assessment of objective seriousness 3. Manifest excess · Offender deliberately drove at and killed her de facto partner. The deceased was struck and dragged 30 metres under the car · Offence was unplanned and spontaneous – no provocation Lees v R [2019] NSWCCA 65 District Court · Tumultuous relationship between offender and deceased – domestic violence, drug abuse, mental health issues 18 years old Guilty plea to manslaughter – 10% discount Total: 16 years · High range of objective seriousness NSWCCA Appeal against sentence allowed, sentence quashed, offender resentenced NPP: 12 years Minor – breached two bonds Grounds of appeal: 29 March 2019 CCA Resentence 1. Miscarriage of justice – DC had no jurisdiction Bathurst CJ, Hoeben CJ at CL and Price J Total: 12 years NPP: 9 years 2. Error in assessment of objective seriousness 3. Manifest excess Sentence found to be manifestly excessive on appeal. Failure to properly take offender's mental health issues into account DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 August 2023