R v C Shedden [2012] NSWSC 854

Supreme Court New South Wales

Medium Neutral Citation: R v C Shedden [2012] NSWSC 854 Hearing dates: 6/07/2012 Decision date: 03 August 2012 Before: Fullerton J Decision: For the murder of Joshua Maynard - imprisonment for 27 years commencing on 13 July 2011 comprising a non-parole period of 20 years expiring on 12 July 2031 and a balance of term of 7 years expiring on 12 July 2038. For the offence of possessing a shortened firearm contrary to s 62(1)(b) of the Firearms Act 1996 - a fixed term of 12 months to commence on 13 July 2011. Catchwords: CRIMINAL LAW - sentence - murder - violent confrontation between two groups of young men - shotgun discharged at unarmed person - objective seriousness of offending extremely high - aggravating features Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Cases Cited: Muldrock v R [2011] HCA 39; 244 CLR 120 R v Forbes [2011] NSWSC 1547 R v J Shedden [2012] NSWSC 759 Category: Sentence Parties: The Crown Chad Ross Shedden (Offender) Representation: Counsel: L Carr (Crown) C Davenport SC (Offender) Solicitors: Director of Public Prosecutions (Crown) Bilias & Associates (Offender) File Number(s): 2010/227992

REMARKS ON SENTENCE 1HER HONOUR: On 31 May 2012 the offender was convicted by a jury of the murder of Joshua Maynard at Raymond Terrace. 2A standard non-parole period of 20 years applies to murder as provided in Div 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999. 3The deceased died as a result of a single shotgun wound to his chest after he emerged from the front seat of a car that was driven by one of his friends into a suburban street in Raymond Terrace at around midnight on 29 June 2010. The shooting was the culmination of a series of violent encounters during the course of the night between two groups of boys and young men, the offender leading one group with the active assistance of his brother, and the deceased leading the other group which included his younger brother, Thomas. 4The offender's brother, John Shedden, pleaded guilty to manslaughter on the basis of his participation in a joint criminal enterprise to assault the deceased (and those in his company) where the intended victims of those assaults were exposed to an appreciable risk of suffering serious injury (R v Shedden [2012] NSWSC 759). He did not give evidence at the offender's trial. Daniel Forbes, another member of the offender's group, also pleaded guilty to manslaughter on a similar basis. He gave evidence for the Crown pursuant to an undertaking which attracted a discount on sentence (R v Forbes [2011] NSWSC 1547). Others associated with the offender also gave evidence for the Crown: Bradley White gave evidence with the benefit of an immunity from prosecution from the Attorney-General and AB under a certificate issued pursuant to s 128 of the Evidence Act 1995. The deceased's brother was also called by the Crown as were three other young men in the deceased's group: Dean Rivers, Dillon Bell and Daniel Wright. None were indemnified. None applied to give evidence under a s 128 certificate. 5In his evidence at trial the offender admitted to discharging the shotgun but claimed that he acted in defence of himself (or his brother). At the time of arraignment the offender entered a plea of guilty to manslaughter on the basis that his response to the threat from the deceased (as he perceived it) was excessive. The Crown did not accept the plea of guilty in discharge of the indictment. By its verdict the jury must be taken to have rejected any reasonable possibility that the offender acted in self-defence. 6The Crown relied upon the evidence at trial for sentencing purposes supplemented only by the tender of the offender's criminal antecedents. The offender tendered a report from Dr John Jacmon, psychologist. I also received a victim impact statement from Ms Tracy Maynard, the deceased's mother. I acknowledge her loss and the grief all members of the Maynard family have suffered by the death of a valued and loved family member and I extend my sympathy to them. Consistent with legislative provisions which allowed me to receive her statement in the sentencing proceedings, it does not inform the sentence to be imposed in this case. 7The factual findings I am required to make for sentencing purposes, in particular those that inform the objective seriousness of the offender's criminal conduct, including but not limited to the question of intent, must be consistent with the jury's verdict. Any findings of fact adverse to the offender, again including but not limited to the question of intent, must be proved beyond reasonable doubt. I acknowledge that it is sufficient that the matters upon which the offender relied in mitigation of sentence are to be proved by him on the balance of probabilities. 8The Crown submitted that I would be satisfied that the deceased was not armed when he was shot by the offender, a finding relevant to an assessment of objective seriousness. The jury's verdict does not necessarily involve a factual finding of that kind. They may have been satisfied beyond reasonable doubt that the offender did not act in self-defence even were the deceased armed although, given the issues that confronted the jury at trial, I consider this unlikely. 9The Crown also submitted that I would be satisfied that the offender discharged the shotgun with the intention of killing the deceased which, in addition to other features of the offending, including statutory features of aggravation, should attract the imposition of the standard non-parole period, there being nothing in mitigation, or in the offender's subjective circumstances, which would warrant a lesser minimum period in custody (see Muldrock v R [2011] HCA 39; 244 CLR 120). 10Ms Davenport SC sought to persuade me that having regard to the ballistics evidence, which established that the shotgun was discharged over a distance of between 6 and 8 metres, and that the single shot was fired in highly volatile circumstances with two groups of young men confronting one another with aggression in a poorly lit suburban street, I would not be satisfied that the offender discharged the gun with the intention of killing the deceased as distinct from intending to cause him really serious injury. She also sought to persuade me that the offender was responding to provocative conduct on the part of the deceased when he discharged the gun because the deceased emerged from the car armed and aggressively wielding a sword or machete, threatening to use it to stab someone. She submitted that despite the jury's rejection of the defence of self-defence, a finding on the probabilities that the deceased was armed when he got out of the car remained open for sentencing purposes in mitigation of sentence as provided for in s 21A(3)(c) of the Crimes (Sentencing Procedure) Act. 11It is necessary to refer to the evidence in some detail to resolve this issue. This also involves my making an assessment of the reliability and the honesty of the witnesses to the shooting, where most were involved to a greater or lesser extent in the violence that preceded it, where all were allied with one group or the other; and where most were affected by alcohol or by a mixture of drugs and alcohol. 12I have already noted that Daniel Forbes gave evidence for the Crown and was sentenced on the basis of that undertaking (R v Forbes [2011] NSWSC 1547) and that Bradley White gave evidence under an indemnity from the Attorney General. Although both witnesses gave evidence implicating the offender, they also gave evidence that the deceased was armed. I have grave doubts as to whether their evidence was the complete truth.