R v HOWARD [2008] NSWSC 934

New South Wales Supreme Court

CITATION : R v HOWARD [2008] NSWSC 934

HEARING DATE(S) : 8 August 2008

JUDGMENT DATE : 5 September 2008

JUDGMENT OF : Hulme J at 1

DECISION : I sentence the Prisoner to imprisonment for 18 years 6 months with a non-parole period of 14 years to commence on 27 October 2007 and expire on 26 April 2026. The offender is eligible for parole on 27 October 2021.

PARTIES : Regina Gregory Mark Howard

FILE NUMBER(S) : SC 2007/3616001

COUNSEL : Crown: Mr P Barrett Prisoner: Mr J Gordon

SOLICITORS : S Kavanagh S O'Connor

- 11 - IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

HULME J Friday, 5 September 2008 2007/3616

R v Gregory Mark HOWARD Remarks on Sentence 1 HIS HONOUR: On 19 August 2006 the Prisoner fatally shot Jacob Digby, his son. The Prisoner was charged with murder. He first appeared in this Court on 14 September 2007 when his trial was fixed to commence on 14 April 2008. When arraigned on 5 October he pleaded not guilty but on 15 April changed his plea to guilty. His legal advisers had indicated some time previously that that would occur. The Prisoner's plea entitles him to a discount on sentence and, given the timing of events, I propose to allow approximately 12½% in this regard.

2 An hour or so earlier than the shooting the two had attended a service station and purchased some items there. On entering the service station the deceased had instructed his dog to sit at the front door. The Prisoner exited the station first and moved the dog. When the deceased came out a very heated argument developed between the two about what the Prisoner had done. During the course of the argument, the Prisoner brandished a knife at the throat of the deceased but, at least from the account of a Lauren Lever who was there, was most active in trying to end the confrontation, walking away. 3 Both then proceeded to their homes in Acacia Avenue, Punchbowl. The deceased boarded at No. 3 with a Mr Lever whose children also spent some nights at those premises. Almost opposite was No. 6 which was occupied by the Prisoner's mother, the Prisoner himself living in a garage or shed at the back. 4 Upon returning to 3 Acacia Avenue the deceased was heard to say words to the effect of "Dad's giving me the shits again". He then "stormed out". He was also heard to say something about a knife and seen to hold one. However, although the deceased was found to have a pocket-knife in his pocket after his death, the knife does not figure in the circumstances of the deceased's death and accordingly I put that topic aside. 5 The deceased also contacted the Prisoner by phone. Although the Prisoner asserted he received several messages from the deceased making threats towards him, the phones when seized by the police showed, in addition to unsuccessful attempts by the deceased to ring, only one call and one text message as having been effected. That text message was "have some balls". 6 The deceased walked from 3 Acacia Avenue to the house at No. 6 where he spoke to the mother of the Prisoner and told his grandmother of the argument that had occurred and said "I have got to find him". The evidence does not indicate whether this occurred before or after the other events at 3 Acacia Avenue to which I have referred. 7 Although he was not licensed to do so, the Prisoner in fact possessed a rifle. He seems to have had some interest in shooting animals and while no doubt his possession of the rifle made possible what occurred on 19 August, there is nothing to suggest that that possession was with a view to its use in any serious criminality or against persons. He kept it in a loaded state, under his bed. 8 The position of fired cartridge cases found by the police when they attended would indicate that the Prisoner fired one shot from adjacent to the garage. The Prisoner said this shot was fired over the head of the deceased. A discharged cartridge case from another shot was found near the body of the deceased, the position of the latter being some 10 metres from the garage. A third discharged cartridge case remained in the firearm. 9 One shot entered the right side of the deceased's chest perforating the lower lobe of both lungs and transecting the aorta. The post-mortem examination does not record any gunshot residue associated with that wound. 10 A third shot entered the deceased's left cheek near the left orbital cavity, perforated a number of bones in the head and transected the spinal cord. Gunshot residue was found on the outside and inside of the bullet track. The conclusion expressed in the post-mortem report was that the deceased died from gunshot wounds of the head and chest. 11 Mr Lever, who heard the shots, described them as "Bang, bang, and then a bit of a pause, and bang." Another neighbour said that the first 2 bangs were only a couple of seconds apart but that the third bang was about 10 seconds after the second. 12 According to the Crown Case Statement, in a call to 000 that appears to have been soon after the shooting, the Prisoner said:- "I've just shot my son dead. I fired a warning shot to go away and he was gunna beat the shit out of me … and I shot him. And then I shot him again and he's dead."