Supreme Court New South Wales Medium Neutral Citation: R v Kevin Gall; R v Bruce Gall (No 6) [2012] NSWSC 1432 Hearing dates: 2, 16 November 2012 Decision date: 23 November 2012 Before: Adamson J Decision: Kevin Gall is sentenced as follows: (1) For the offence of pervert the course of justice, to a fixed term of imprisonment for 1 year and 10 months, to date from 16 November 2010. (2) For the offences of unauthorised possession of prohibited firearms and prohibited weapons, to a fixed term of imprisonment for 3 years and 7 months, with a non-parole period of 2 years and 8 months, to date from 16 November 2011. (3) For the offence of discharging a firearm with intent to cause grievous bodily harm to Michael Fox, to a fixed term of imprisonment for 8 years, to date from 16 November 2013. (4) For the murder of Neil Green, to a term of imprisonment of 27 years with a non-parole period of 18 years, to date from 16 November 2016. Bruce Gall is sentenced as follows: (1) For the offence of being an accessory after the fact to murder, to a fixed term of imprisonment of 2 years, to date from 16 January 2012. (2) For the offence of perverting the course of justice, to a fixed term of imprisonment for 16 months, to date from 16 September 2013. (3) For the offence of possessing prohibited weapons, to a fixed term of imprisonment for 3 years, to date from 16 January 2015 with a non-parole period of 18 months. Catchwords: CRIMINAL LAW - sentence - murder - accessory after the fact to murder - discharge firearm with intent to cause grievous bodily harm - possess prohibited weapon - possess prohibited firearm - influence witness to pervert the course of justice Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v Elfar [2003] NSWCCA 358 R v Hawken (1986) 27 A Crim R 32 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Previtera (1997) 94 A Crim R 76 R v Rodriguez [2012] NSWSC 663 R v Shankley [2003] NSWCCA 253 Ramsay v Watson [1961] HCA 65; 108 CLR 642 Category: Sentence Parties: Regina Kevin Gall (Offender) Bruce Gall (Offender) Representation: Counsel: M Cunneen SC (Crown) D Dalton SC (Kevin Gall) B Levet (Bruce Gall) Solicitors: Solicitor for Public Prosecutions (Crown) AHA Taylor Lawyers (Kevin Gall) Kinghan & Associates (Bruce Gall) File Number(s): 2010/380838; 2010/380935 Publication restriction: None Judgment 1On 14 September 2012, Kevin Gall was convicted after trial by jury of two offences: (a)the murder of Neil Green (the deceased); and (b)discharging a firearm with intent to cause grievous bodily harm to Michael Fox. 2On the first day of the trial, Kevin Gall pleaded guilty to: (a)two counts of unauthorised possession on 6 May 2010 of a prohibited firearm, being a silver .32 automatic calibre Fabrique Nationale self-loading pistol and a black 9mm calibre submachine gun; (b)two counts of unauthorised possession on 6 May 2010 of a prohibited weapon, being a black silencer and a magazine holding eleven 9 mm Federal cartridges; and (c)influencing Martin Lapich on 19 June 2010 to give a false account to police and destroy evidence, his mobile phone, with intent thereby to pervert the course of justice. 3Bruce Gall was convicted after trial by jury of being an accessory after the fact to murder. 4On the first day of the trial, Bruce Gall pleaded guilty to: (a)one count of unauthorised possession on 16 November 2010 of a prohibited firearm, being a .38 Smith & Wesson special calibre 6 chamber revolver; and (b)influencing Martin Lapich on 19 June 2010 to give a false account to police with intent thereby to pervert the course of justice. The facts 5As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. The association between the offenders and the deceased 6The deceased and Kevin Gall had, in the past, been on good terms. They had met in 2004 or 2005 through Peter Van Straalen, who owned P & L Cycles at Toongabbie Road. The deceased knew Kevin Gall to have skills as a machinist using computerised equipment which could be used to make metal parts. From that time on until they fell out, the deceased was a regular visitor to 8 Wiltona Place, which was not only Bruce Gall's home, but also the workshop from which Bruce and Kevin Gall worked. 7The deceased brought other motorcycle enthusiasts to Wiltona Place and Kevin Gall would do work on their motor bikes. As a result of this association the deceased and Kevin Gall became friends. They would also socialise together: every two weeks or so they went to nightclubs and also went on long rides together, sometimes in the countryside past Mudgee. 8According to Kevin Gall, in about 2006, the deceased approached him with another friend, Tim Donnan, to repair a firearm, a Norinco .45. He repaired the weapon and test fired it into the vacant lot at 10 Wiltona Place. He did not charge the deceased or Mr Donnan any money for doing the repair because they were "mates" of his. They also asked Kevin Gall to repair a Mac 10 pistol but he was unable to repair it. Later, the deceased asked Kevin Gall to increase the capacity of certain machine pistols but he was unable to do so. 9Kevin Gall also gave evidence that the deceased then asked him to hold one of the pistols along with ammunition and a silencer. Kevin Gall agreed to do so. 10I do not accept Kevin Gall's evidence of the provenance of these guns or his version as to how they came to be in his possession, although for reasons to which I will come, I accept that Kevin had some firearms which belonged to the deceased. The drug charges against the deceased 11The relationship between Kevin Gall and the deceased soured on 1 April 2008 when the deceased was driving a hire car in which Kevin Gall was a passenger. The previous evening, the deceased and Kevin Gall had occupied a hotel room with at least one prostitute. Drugs had been used. Afterwards, the drugs were put in the boot of the hire car. The car was stopped for speeding and searched. Various prohibited items were found, including drugs. Both the deceased and Kevin Gall were arrested, but only the deceased was charged. Thereafter the deceased and Kevin Gall saw each other less frequently. 12At about this time, the deceased was involved in a serious car accident, as a result of which he spent time in an intensive care unit. The long-term effects of his injuries were that he lost both fitness and agility and became depressed. Mr Donnan was also involved in the accident. The deceased had not worked since the accident and was on a disability pension. He drove an old Commodore as well as a motorbike and he lived in a three-storey town house in Northmead. 13Following these events, the deceased, together with two men named Adrian and Lionel who were associated with a motorcycle club known as the Nomads Outlaw Motorcycle Gang, met with Kevin Gall at 8 Wiltona Place. The deceased also belonged to the Nomads. The three men asked Kevin Gall to go to the deceased's solicitor's office to swear an affidavit with a view to the possession charges against the deceased being dropped. Kevin Gall refused go to the solicitor's office, although he had never seen any draft of the affidavit which he was expected to swear. 14The hearing of the charges against the deceased was listed for trial in the District Court at Parramatta on Monday 29 March 2010, but it was adjourned to a date in August, on the deceased's application. On that day, the deceased's solicitor asked the police whether Kevin Gall's DNA was on file. He told the police, for the first time, that the deceased's defence would be that there was another person's DNA on the prohibited drugs and he believed that it was Kevin Gall's DNA. 15I do not consider that this issue was of particular importance to the events of Friday 16 April 2010 except in so far that it showed that the friendship between the deceased and Kevin Gall had markedly deteriorated by that time. In particular, I am not satisfied that the deceased went to 8 Wiltona Place with a view to inclining Kevin Gall to swear an affidavit to assist him to defend the criminal charge. Previous attempts to retrieve the deceased's property from Kevin Gall 16From early 2010, the deceased made it known that he wanted to retrieve certain property from Kevin Gall. The evidence is not sufficient to identify the property. 17The people with whom the deceased had spoken about retrieving his property included Martin Lapich, who moved in circles which included the deceased; Mr Van Straalen; Garth Jones who was a good friend of the deceased and also worked at Mr Van Straalen's business premises; and Michael Fox, a friend of the deceased who had met Kevin Gall and his half-brother Troy Ryan on trail bike rides when Kevin Gall and the deceased were still on good terms. Mr Fox had the nickname "the soldier" because he had spent some time in the Australian Army. 18In January or February 2010, Mr Lapich spoke to the deceased who asked him whether he had seen Kevin Gall lately. Mr Lapich said, "No, why?" The deceased said, "He has something of mine. I want it back. Tell him to ring me." A couple of weeks later Mr Lapich spoke to Kevin Gall at 8 Wiltona Place and said, "Neil wants you to ring him", to which Kevin Gall said, "I don't want to talk to the cunt." 19In early 2010, Mr Van Straalen visited 8 Wiltona Place and asked Kevin Gall for the deceased's belongings but he refused to return them. On another occasion, in January 2010, a man called Tori Nati went to 8 Wiltona Place to tell Kevin Gall that the deceased wanted to talk to him. 20When Mr Fox heard about the dispute, he was concerned that the deceased would be in danger if he went to 8 Wiltona Place by himself. Accordingly, he offered to go to 8 Wiltona Place himself to retrieve the deceased's property. 21Mr Fox, who was not concerned to know the nature of the property, as long as it was not drugs, suggested to the deceased that they use the euphemism "bike parts and manuals" when referring to the property. 22Although Mr Fox knew that Kevin Gall had refused to swear an affidavit to help the deceased with respect to the drug charges, he did not believe that matter to have any bearing on the dispute about the recovery of the property. Mr Fox's view was shared by Mr Van Straalen. 23Mr Fox visited 8 Wiltona Place twice before Friday 16 April 2010. On the first occasion there appeared to be no one home when he knocked on the front door. He returned a couple of days later and heard the blinds klink in the upstairs window, which was open. Mr Fox started talking and Bruce Gall responded. Mr Fox asked if Kevin or Troy were at home and Bruce said no. Mr Fox explained that Kevin had property of the deceased's and suggested that Bruce obtain the property, which he would then collect on the deceased's behalf. Bruce Gall said he knew nothing about it. Before Mr Fox left, he told Bruce that he would leave a business card in the letterbox and asked Bruce to call once he had spoken to Kevin and Troy. 24A few days later Mr Fox rang the home phone number for 8 Wiltona Place and spoke to someone who identified himself as Bruce, who said: "The boys said to tell you, 'to get fucked'". 25About three days later, the deceased suggested to Mr Fox that the two of them go around to 8 Wiltona Place to speak to Kevin Gall or Troy Ryan about the return of the property. At that time, Mr Fox was not aware of the previous visits made by Mr Van Straalen and Mr Nati. Friday 16 April 2010 26At about lunchtime on Friday 16 April 2010, Mr Fox drove in his blue Ford Laser to Westmead to collect the deceased. He asked the deceased whether he was "carrying"; in other words, whether he was armed. The deceased said that he was not. Mr Fox's view about guns was: "A gun's a gun. It will kill you. If you carry them, you'll get shot." 27When Mr Fox and the deceased arrived at 8 Wiltona Place, they drove through the gate and around to the back of the property. Mr Fox left the keys to the car in the ignition. He also left his passport, his wallet and his mobile phone in the car. 28One of the men said to Bruce Gall in a raised voice: "Where the fuck is your son? We want him here now. Ring him on the phone. Get the cunt here now." 29The deceased asked Bruce Gall if there were guns lying around and he said no. Mr Fox said to Bruce Gall: "Don't look to me for trouble" and pulled up his shirt to show him that he was not armed. 30Bruce Gall asked the deceased what the property was and the deceased said "two and a half". Bruce Gall then asked whether it was two and a half thousand and the deceased said, "No, it was two and a half million." The sum of money involved came as a surprise to Mr Fox. On the basis of Mr Fox's evidence that the deceased also mentioned a couple of firearms in connection with his property, I accept that Kevin Gall was in possession of firearms which belonged to the deceased. 31Bruce Gall went inside a building referred to as "the office" and rang Kevin. By chance Mr Lapich was in the office. By prior arrangement, Mr Lapich had caught the train from Gosford that morning in the hope of obtaining "bike work" from either Kevin Gall or Mr Ryan. Some time after, Mr Lapich arrived, he either rang or sent a text to Kevin to let him know that he was waiting for him there. 32When Bruce Gall came out of the office he told the deceased and Mr Fox that he had spoken to Kevin and that he was coming. 33Mr Lapich, who was aware of the conflict between the deceased and Kevin Gall, was reluctant to remain on the scene. The deceased offered to drive him to P & L Cycles in the Ford Laser. Mr Fox remained with Bruce Gall at 8 Wiltona Place. At some stage after he had returned from dropping off Mr Lapich, the deceased motioned to Mr Fox that Kevin Gall might come back armed. 34Mr Lapich was obviously rattled by these events. Mr Jones, who was at P & L Cycles at the time, overheard Mr Lapich talking on the telephone about who was at 8 Wiltona Place, and told him not to talk about such matters on the phone. Mr Jones and Mr Fox shared what appears to have been a general understanding: that it was not appropriate to discuss matters concerning bikies. Mr Lapich told Mr Jones that: "some other bloke is around there with Neil and they're blowing up at the old boy". Mr Jones drove Mr Lapich to a nearby railway station so that he could return home to Gosford. 35At 12.59 pm Kevin Gall booked a taxi from his home at Stanhope Gardens to 8 Wiltona Place, which arrived to collect him at 1.09 pm. He took a .45 gun in his grey satchel with him, as had been his invariable practice at least since he had been asked to swear an affidavit to assist the deceased in his defence of the possession charges. When Kevin Gall was in the taxi, he received a text message from Mr Lapich saying: "Don't come Neil here." Instead of asking the taxi to take him to the door of 8 Wiltona Place, Kevin Gall requested that the taxi driver take him to the intersection of Targa Road and Toongabbie Road. He arrived at that intersection at 1.28 pm. 36Kevin Gall then made his way on foot to 8 Wiltona Place. He ran the length of a back lane at the rear of the workshop, then across the paddock at the neighbouring vacant lot at 10 Wiltona Place and came up beside the fence with 8 Wiltona Place. 37Meanwhile, Bruce Gall, the deceased and Mr Fox were outside the office at the back of 8 Wiltona Place. Kevin Gall, who by that time had positioned himself on the opposite side the fence near where the other men were standing, saw Bruce run back towards the office. Kevin then appeared over the fence with his gun drawn. He shot the deceased at close range at least three times, intending to kill him. The deceased fell after the first shot. 38Kevin Gall did not shoot the deceased to defend or protect his father. Rather, he took the opportunity which the deceased's presence at 8 Wiltona Place afforded to kill the deceased so that he would not have to relinquish the deceased's property, whatever it might have been. 39As soon as Kevin Gall had shot the deceased, he trained the gun on Mr Fox and began firing in his direction. Mr Fox ran down into the corner of the block and sought shelter behind a trailer. At this point the gun which Kevin Gall was using ceased firing, either because it had a malfunction or because it had run out of ammunition. In this intervening period, Mr Fox leapt over the fence and ran as fast as he could. Kevin Gall then shot at him again, intending to cause him grievous bodily harm. 40Kevin Gall then removed the deceased's body from the floor of the carport and disposed of it. 41Later that day, Bruce Gall assisted his son to escape detection by hosing away the deceased's blood from the concrete floor with a high-pressure hose. Subsequent events 42Within a day or so of killing the deceased, Kevin Gall changed the number plates of the Ford Laser which Mr Fox had driven to 8 Wiltona Place with the deceased on 16 April 2010. He also, at some stage, repainted it. Both acts were done with the intention of disguising the identity of the vehicle so that it could not be tested for DNA. He later delivered it to Mr Van Straalen's workshop to be disposed of. 43Either on Friday 16 April 2010, or on the weekend of 17 and 18 April 2010, the hard drive of the CCTV cameras at 8 Wiltona Place was removed. I do not accept that the CCTV cameras operated only at night-time. The removal of the hard drive had the effect that a filmed record of what had occurred on 16 April 2010 was no longer available and could not, accordingly, be seized by police. 44On 23 April 2010, Kevin Gall's residence at Stanhope Gardens was "fire bombed". Kevin Gall was not at home at the time, but his girlfriend was. She escaped without serious injury. Kevin Gall understood this to be an act of reprisal for his killing of the deceased and assumed that the Nomads had been responsible for the "fire bombing". 45On 6 and 7 May 2010, police executed a search warrant at 8 Wiltona Place. Kevin Gall possessed a silver .32 automatic calibre Fabrique Nationale self-loading pistol, a black 9mm calibre submachine gun, a black silencer and a magazine holding eleven 9 mm Federal cartridges. According to Kevin Gall, none of these weapons had been used to shoot either the deceased or Mr Fox, the relevant weapon having been stripped and destroyed soon after the offences had been committed. 46Kevin Gall gave evidence that the sub-machine gun and the black silencer belonged to the deceased and that he was "holding on to" the weapons for him. I do not accept this evidence since I am not satisfied that these weapons were the weapons that belonged to the deceased. 47On 19 June 2010, there was a discussion between Bruce Gall, Kevin Gall, Mr Lapich and Mr Van Straalen which was recorded by police on a listening device. In the course of the discussion, Kevin Gall spoke to Mr Lapich to influence him to give a false account to police about his whereabouts on 16 April 2010 and to destroy his mobile phone so that the text messages he had sent to Kevin Gall on that day would never be recovered. Bruce also encouraged Mr Lapich to give a false version of his whereabouts on the day. 48On 16 November 2010, a further search warrant was executed at 8 Wiltona Place. In the process of executing the search warrant, Bruce Gall escorted police into the office where, in response to questioning, he indicated the whereabouts of a six round .38 calibre revolver, to the unauthorised possession of which he has pleaded guilty. The revolver was wrapped in a light-brown cloth on top of the table in the middle of the office. Police seized the revolver and found it to be loaded with six .38 calibre rounds. 49On 16 November 2010, Kevin and Bruce Gall were arrested and charged. Kevin Gall has been in custody since. Bruce Gall was released on conditional bail on 22 September 2011, having spent the intervening period in custody. In structuring the sentences for the two offenders I take into account time already served. 50On 20 April 2011, Kevin Gall, through his then solicitor, provided a handwritten statement to police in which he said that he had shot the deceased and killed him in order to defend his father from attack. He made no mention in the statement of shooting at, or in the direction of, Mr Fox. He said that he had taken the deceased's body into the bush to bury it. He said that he destroyed the equipment used to bury the deceased and also the handgun with which he had killed him. 51Kevin Gall's statement concluded: "I am willing to accompany police with my lawyers to where Neil Green is buried." 52Kevin Gall accompanied police to the State Forest at Nabiac on two occasions. Notwithstanding thorough searches and the assistance of trained dogs, the deceased's body was never found. 53I do not accept Kevin Gall's account of the manner of the disposal of the deceased's body, or its location. Subjective circumstances 54Kevin Gall did not give evidence at the sentence hearing. The statements as to his subjective circumstances in his counsel's written submissions are unsupported by evidence and untested. 55He is now 34 years old, having been born on 3 June 1978. At the time of the offending he was 32; he was charged when he was 33. His father, the co-offender is aged 62, and his mother is aged 60 years. He is one of two children. 56Kevin Gall attended high school, where he was interested in metalwork and tech-drawing and other engineering focused subjects. In 1994, he completed his High School Certificate and commenced an apprenticeship. In 1998, Kevin Gall completed his apprenticeship and achieved a TAFE certificate in Mechanical Engineering after completing a 4 year course. 57Kevin Gall has no significant or related prior criminal convictions and has never previously served a custodial sentence. 58Bruce Gall neither gave evidence at the trial, nor at the sentence hearing. The facts as to Bruce Gall's subjective circumstances which are set out below are substantially derived from the pre-sentence report dated 26 October 2012. Mr Gall also relied on a report of a psychologist, Bradley Jones, dated 1 October 2012. However the history given to Mr Jones was not established and accordingly the opinions expressed are without foundation in the evidence: Ramsay v Watson [1961] HCA 65; 108 CLR 642; R v Elfar [2003] NSWCCA 358, at [25] per Whealy J, Ipp JA and Davidson AJ agreeing. 59Bruce Gall was born on 3 August 1951, the younger of two siblings. His mother abused alcohol and was violent. She left the family home when Bruce was about 12. He was relieved and had little further contact with her. He did not attend her funeral. His father remarried but he was rejected by his stepmother and left the family home when he was about 17. 60Bruce Gall left school at 15 and commenced an apprenticeship as a fitter and turner. He worked with his father who owned an engineering company but when his father died that company ceased operating, Mr Gall having already started his own business. 61Bruce Gall married in 1970 and has two sons, one of who is the co-offender Kevin Gall. Although Bruce and his former wife separated in 1999 and divorced in 2000, they remain on good terms. He presently resides with his former wife, who continues to provide him with support and friendship. 62Bruce Gall has a prior criminal record but this is of little moment since the most recent offence, of which he was convicted prior to the subject offences, occurred in 1990. He was fined for that offence and was subjected to a community service order. Factors relevant to sentence 63I turn to the provisions of the Crimes (Sentencing Procedure) Act 1999 (the Act). In dealing with each of the offenders I take into account the purposes of sentencing that are set out in s 3A and the provisions of s 21A of the Act. The latter section requires the Court to take into account both the aggravating factors referred to in s 21A(2) and the mitigating factors referred to in s 21A(3) that are relevant and known to the Court, together with any other objective or subjective factor that affects the relative seriousness of the offence. Kevin Gall Murder 64I turn first to the conviction of Kevin Gall for murder. The offence of murder carries a maximum sentence of life imprisonment. The applicable standard non-parole period (SNPP) is 20 years. The SNPP represents the non-parole period for a hypothetical offence in the middle of the range of objective seriousness whereas the maximum sentence is to be given only in the most severe of cases. The SNPP and the maximum sentence are legislative guideposts that inform the exercise of sentencing discretion: Muldrock v The Queen [2011] HCA 39; 244 CLR 120, at [27]. 65Section 61(1) of the Act provides that a court is to impose a sentence of imprisonment for life on a person who is convicted of murder if the court is satisfied that the level of culpability in the commission of the offence is so extreme that the community interest in retribution, punishment, community protection and deterrence can only be met through the imposition of that sentence. The Crown, in my view correctly, did not contend that this murder is in the category of offences to which s 61(1) applies. 66The death of the deceased was brought about by Kevin Gall's desire to rid himself of an unwanted adversary. The full extent of the basis of his hostility to the deceased was not revealed in the evidence. The jury's verdict shows that it rejected the proposition that Kevin Gall had killed the deceased to defend or protect his father. The unlawful and intentional taking of a human life is a heinous crime. 67I consider the offence committed by Kevin Gall to be in the middle of the range of seriousness of offences of murder. 68The aggravating factors include, as referred to above, that Kevin Gall disposed of the body of the deceased, which was never found and could therefore never be examined and never appropriately put to rest. I do not accept Kevin Gall's submission that his disposal of the body of the deceased was more motivated by fear of retribution by the Nomads than investigation by the police. Kevin Gall must, in my view, have appreciated that it was inevitable that Mr Fox would inform the Nomads that Kevin Gall had shot the deceased. 69The Crown submitted that it was an aggravating factor to be taken into account under s 21A(2)(e) of the Act that Kevin Gall committed the murder and the intentional shooting at Mr Fox in company with his father. I do not accept this submission since I consider that Bruce Gall's presence was merely incidental to what occurred. 70The Crown also submitted that it was an aggravating factor to be taken into account under s 21A(2)(n) of the Act that the offence of murder was part of a planned criminal activity. I accept that the offence was planned in the sense that Kevin Gall chose to take an unobtrusive path to 8 Wiltona Place such that his arrival would not easily be detected by Mr Fox or the deceased. He took the gun out of the satchel in which he had carried it for months, since the disintegration of his friendship with the deceased. He had it in his hand, ready to be fired as he approached the fence between the vacant lot and 8 Wiltona Place. To that extent the offence was planned, albeit that the period of planning was relatively short. 71The Crown accepted, as do I, that it was a mitigating factor to be taken into account under s 21A(3)(c) of the Act that the offence was provoked by the victim. The deceased's act in going to 8 Wiltona Place, with Mr Fox, and demanding Kevin Gall's presence there amounted to significant provocation since it was designed to, and did, bring matters to a head. Mr Fox and the deceased spoke to Bruce Gall in tones which were both aggressive and confrontational. 72The Crown also accepted, as do I, that I should take into account as a mitigating factor under s 21A(3)(h) of the Act that Kevin Gall has good prospects of rehabilitation and, as a mitigating factor under s 21A(3)(e), that his prior criminal record was of little consequence and does not include any periods of imprisonment, apart from the time spent in custody in relation to the offence of murder in respect of which he is to be sentenced. 73Kevin Gall contended that it was a mitigating factor to be taken into account under s 21A(3)(f) that he was a person of good character. In assessing whether Kevin Gall was a person of good character, I am obliged to set aside the offences for which the offender is being sentenced, and I do so. 74Kevin Gall relied on references from his mother, his aunt and two associates. The people referred to above are likely, because of their relationship with the offender, to be partial to him. There is no evidence that any of these persons was acquainted with the fact that Kevin Gall was in possession of illegal firearms or that for some months he invariably carried a loaded firearm on his person in his satchel. On his own evidence, Kevin Gall was involved in manufacturing illegal firearms in his own workshop and repairing gun parts for members of the Nomads. 75I accept that Kevin Gall had some good personal qualities which showed themselves when he was in the company of those who have given references. However I am not satisfied that Kevin Gall was a person of good character. 76Kevin Gall contended that it was a mitigating factor to be taken into account under s 21A(3)(i) that he had shown remorse. In support of his contention he relied on a letter addressed to me dated 30 October 2012 in which he wrote, in part: "I can only imagine what kind of pain my actions have caused Neil's family and although I know I can never change what took place, from the bottom of my heart I am so very sorry." 77Although the Crown did not submit that I should reject the letter, it contended that I ought give it little or no weight because it had not been, and could not be, tested. I do not consider that any weight should be given to this statement because of its provenance, its timing and the circumstance that its author was not prepared to give sworn evidence to the effect of its contents: R v Elfar [2003] NSWCCA 358 at [25], per Whealy J, Ipp JA and Davidson AJ agreeing. I am not satisfied that Kevin Gall has shown remorse. His undoubted regret that things have turned out as they have does not amount to remorse and is not a mitigating factor. 78Had I set a separate sentence for murder, I would have set the non-parole period at 20 years. The non-parole period which is provided for in the aggregate sentence which I shall impose is a lesser figure than 20 years in order to preserve what I consider to be an appropriate ratio between the period of imprisonment and the total sentence. I do not find special circumstances. Discharging a firearm with intention to cause grievous bodily harm to Mr Fox 79The maximum sentence for this offence is 25 years: s 33A(1) of the Crimes Act 1900. There is no SNPP. The SNPP for the more serious offence of shooting with intent to murder is 10 years. 80Mr Fox was an eyewitness to the killing of the deceased. Although the jury acquitted Kevin Gall of the more serious charge of attempted murder and accordingly did not consider that Kevin Gall intended to kill Mr Fox when he shot at him, it nonetheless found that he intended to cause him grievous bodily harm. 81This offence was not, to any significant degree, planned, and arose by reason of Kevin Gall's fear of the consequences of his killing of the deceased. Nor was it relevantly in company. I take into account that the jury acquitted Bruce Gall of the same offence. 82The relevant aggravating factor is that the offence was committed without regard for public safety: 21A(2)(i). 83The relevant mitigating factors which I take into account are as follows: the injury caused by the offence was not substantial, although this was the consequence of good fortune and incompetent firing rather than anything else; it was not part of a planned activity; Kevin Gall does not have any significant record of previous convictions; he is unlikely to re-offend; and has good prospects of rehabilitation. 84I do not accept that Kevin Gall was provoked by the victim. At the relevant time, Mr Fox, who knew that the deceased would already have died from the several gun shot wounds that he had received, was simply trying to escape so that he too would not be shot. Perverting the course of justice 85The offence of doing any act intending to pervert the course of justice carries a maximum sentence of 14 years: s 319 of the Crimes Act. There is no SNPP. 86I am required to take into account the plea of guilty: s 22 of the Act. The utilitarian value of the plea was diminished by its timing, since it was made on the first day of trial. A discount of 10% is appropriate. 87The objective seriousness of the offence Kevin Gall committed cannot be gainsaid: it is a serious matter to encourage a potential witness to destroy evidence and give a false account if questioned by police with a view to concealing a homicide. 88These acts occurred more than two months after the murder. Although the police had questioned some witnesses about the disappearance of the deceased, Kevin Gall was not arrested until 16 November 2010, some seven months after the death of the deceased. 89As at 19 June 2010, Kevin (and Bruce) Gall: (1)knew that Kevin Gall had not been arrested or charged with the murder of Neil Green; (2)knew that the hard-drive of the CCTV on the premises at 8 Wiltona Place had been removed and that therefore any recording of the relevant events would no longer be available; (3)believed (albeit incorrectly) that the Ford Laser had been adequately disposed of so that it would not be found and tested for DNA; and (4)believed that although Michael Fox had told the Nomads that Kevin Gall had shot and killed the deceased at 8 Wiltona Place, he had refused to reveal this to the police when questioned by them. 90Kevin and Bruce Gall's acts of encouraging Mr Lapich to give false evidence and Kevin Gall's act in encouraging Mr Lapich to destroy his mobile phone were potentially highly significant acts in deflecting the police investigation away from Kevin, as the deceased's killer. These acts were done at a time when both Kevin and Bruce Gall had had plenty of time to think about the circumstances of the killing and the various ways in which the investigation of the killing could be thwarted with a view to Kevin Gall's culpability never being discovered by police. 91I do not accept Kevin Gall's submission that the motivation for this offence was concern regarding retribution from Nomads rather than the ramifications of prosecution. Kevin Gall's residence had already been fire-bombed by persons believed to be associated with the Nomads. The terms of the conversation on 19 June 2010 and the concerns expressed by its participants show that Kevin and Bruce Gall were highly attuned to the various ways in which the police could potentially link Kevin Gall to the killing of the deceased and the need to ensure that such evidence as might have that effect either had been destroyed or could be rendered unavailable to police. 92I take into account as an aggravating factor that the offence was committed in company. By way of mitigation, I reject Kevin Gall's submission that the damage caused by the offence was not substantial since I have insufficient evidence to ascertain by how long the arrest of Kevin Gall was delayed and the extent to which the police investigation was compromised or retarded by reason of the offence. I am not satisfied that the offence was not part of a planned or organised criminal activity. 93I take into account the other mitigating factors such as lack of substantial criminal record, the unlikelihood of re-offending and Kevin Gall's good prospects of rehabilitation. Unlawful possession of firearms 94The offence of possessing a prohibited firearm or pistol carries a maximum penalty of 14 years' imprisonment. The SNPP is three years. 95I am required to take into account the plea of guilty: s 22 of the Act. The utilitarian value of the plea was diminished by its timing, since it was made on the first day of trial. A discount of 10% is appropriate. 96It was submitted on Kevin Gall's behalf that he was: "either minding the illegal firearms for others or having them for his protection and the protection of his family and friends." 97I do not accept this rather benign description of what occurred. First, Kevin Gall said, in evidence at the trial, that he was "minding" illegal firearms for the deceased and that he refused to return them because he did not want to arm the deceased, who was dangerous and a member of the Nomads. His explanation was, at best, implausible, since he accepted that the deceased had, if he so chose, access to firearms, and indeed said that he believed, at the time he shot him, that the deceased was armed. 98Secondly, the proposition that a gun can be used for "protection" is, at best, flawed. A gun, if used, has a substantial potential to cause death or grievous bodily harm. It is, in no sense, a shield. Thirdly, as I have said above, I am not satisfied that any of the firearms or weapons, of which Kevin Gall was in possession as at 6 May 2010, belonged to the deceased. 99In terms of mitigating factors, I accept that the harm caused by the offence was not substantial, although these weapons have, as the murder of the deceased demonstrates, substantial potential to cause death and grievous bodily harm. I am not satisfied that the offence of possession of firearms was not part of a planned or organised criminal activity. I take into account the other mitigating factors: his lack of substantial criminal record, that he is unlikely to re-offend, and has good prospects of rehabilitation. Power to reduce penalties for pre-trial disclosure 100Kevin Gall submitted that I should reduce his penalties because of the degree to which the administration of justice had been facilitated by the defence (whether by disclosures made pre-trial or during the trial or otherwise). Reference was made to admissions during the trial and a significant shortening of the trial which was said to facilitate the course of justice. In particular Kevin Gall admitted in opening that he had shot and killed the deceased and had intended to do so which meant that the issue on the murder charge related to self defence or defence of another. 101In my view, counsel for Kevin Gall conducted the case properly and efficiently which meant that many witnesses did not need to be called and which led to a shortening of the trial. 102Kevin Gall himself gave evidence of the way in which he had disposed of the body, removed vehicle identification numbers from relevant vehicles, destroyed the murder weapon, put bullets fired in Mr Fox's direction through a vice and otherwise endeavoured to ensure that he would escape detection. His evidence of disposal of the body could not be tested since the body has never been recovered. That it was not found when Kevin Gall took police to the area of State Forest where he said he buried the deceased is not determinative of whether he did bury the body. As I have said above, I do not accept his evidence as to this matter. He admitted in evidence that neither the deceased nor Mr Fox was armed, which accorded with Mr Fox's evidence. 103In the circumstances of the instant case, I am not disposed to impose a lesser penalty on Kevin Gall by reason of these matters. Bruce Gall Accessory after the fact to murder 104The maximum penalty for accessory after the fact to murder is 25 years' imprisonment. There is no SNPP. 105Bruce Gall's act of hosing down the carport is the only act relied upon by the Crown in relation to the offence of accessory after the fact. Its effect was to assist his son to escape detection at least for a period since, had it remained in place, it would probably have led the neighbours or other visitors to report it to the police. 106Bruce Gall submitted that this offence, together with the offence of perverting the course of justice, which is considered further below, was one which, although not excusable, was an understandable act by a father who was devoted to, and concerned about this son, whom he knew to have just killed someone. This explanation can more readily be accepted as a "heat of the moment" instinctive act by a loyal father in respect of being an accessory than with respect to the offence of perverting the course of justice, which occurred two months later. 107Bruce Gall also submitted that the gravamen of the principal offence, whether it be murder or manslaughter, was not within the control of the accessory, and therefore he ought not be punished more severely by reason of his conviction for accessory after the fact to murder, than he would have been had Kevin Gall been convicted of manslaughter, notwithstanding that the maximum sentence for the former is 25 years and the maximum sentence for the latter is 5 years. 108Bruce Gall placed particular reliance on R v Rodriguez [2012] NSWSC 663 in which a father was convicted after trial of being an accessory after the fact to a manslaughter committed by his eldest son, who was never brought to trial because he left Australia a month after the events. The relevant assistance given by the offender was to collect the weapon that had been used to kill the victim from the person with whom it had been left after the killing. The offender then disposed of the knife, knowing that it had been used in the killing and intending to prevent his son from being brought to justice for that offence. Hidden J, who was satisfied of the offender's good character, imposed a sentence of imprisonment for two years which was wholly suspended. The offence of accessory after the fact to manslaughter carries a maximum sentence of imprisonment for 5 years. 109Cases involving accessories after the fact to murder embrace a wide range of offending. In some cases, the offender's conduct may be viewed as the product of any one or more of the following: fear, threats, emotional attachment, or dependence, or a misguided sense of loyalty. In the instant case, the factors motivating Bruce Gall were emotional attachment and a misguided sense of loyalty. I am not satisfied that he was fearful of his son, or that he was in any way dependent on his son, whether emotionally or otherwise. 110The maximum penalty is an indication of the relative seriousness with which the public, through Parliament, views this offence: R v Shankley [2003] NSWCCA 253, at [19] per Howie J. It would, in my view, be erroneous to disregard the distinction in maximum penalties, notwithstanding that the acts of the accessory are the same whether the principal offender is guilty of murder or manslaughter. 111Further, there are strong policy reasons for regarding the offence as a serious one. As Thomas JA observed in R v Hawken (1986) 27 A Crim R 32, at 38: "...it is in the interests of the community that murderers should be completely isolated from support and deprived of assistance and that such crimes are not covered up." 112Nonetheless, Bruce Gall's act of hosing down the carport to remove what must have been substantial quantities of the deceased's blood was an act which was done shortly after he witnessed his son shoot the deceased. It was an isolated act in the context of this offence and the motivation, though misguided, was understandable. 113I take into account as an aggravating factor that the offence was committed in company: s 21A(2)(e). 114As mitigating factors, I take into account that the acts of Bruce Gall in hosing down the carport did not, to the extent that he was responding in a relatively short period of time to an event that was both violent and, as far as he was concerned, unexpected, form part of a planned or organised criminal activity (s 21A(3)(b)). Perverting the course of justice 115The underlying facts for this offence, which are set out above, are, in my view, in a different category, as far as Bruce Gall is concerned, than those associated with his being an accessory after the fact to murder. Whereas his hosing of blood from the carport may be understood as an impulsive, emotional act borne of paternal devotion, the act of encouraging Mr Lapich to give false evidence cannot be viewed in the same way. 116The state of Bruce Gall's knowledge at the time of the conversation was relevantly the same as Kevin's and has been addressed above by reference to Kevin Gall. 117As with Kevin Gall, I apply a 10% reduction in respect of this count to take into account the utilitarian value of Bruce Gall's plea of guilty, which was entered on the first day of the trial: s 22 of the Act. 118I take into account as an aggravating factor that the offence was committed in company: s 21A(2)(e). I reject Bruce Gall's submission that the damage caused by the offence was not substantial for the same reasons already given in relation to Kevin Gall. Possession of illegal firearm 119Bruce Gall submitted that he armed himself after his son had killed the deceased in an inexcusable, but understandable, attempt to protect himself and his son, from reprisals by the Nomads. 120I do not accept either that Bruce Gall acquired the gun after the killing of the deceased or that he acquired it because of fear of reprisals from the Nomads for the death of the deceased. Fear of reprisals is neither an excuse, much less a justification, for possessing a gun. 121Bruce Gall also submitted that I ought take into account his co-operation with police since, when the police executed a warrant at the premises at 8 Wiltona Place on 16 November 2010, he showed them where the gun was, rather than attempting to conceal it or, indeed, use it. I do not consider that this alleged co-operation ought have the effect of lessening the sentence since it amounted, in my view, to no more than bowing to the inevitable. 122The sentence I impose must be apt to mark the community's disapproval of the serious crime of possession of an unlawful firearm to which the applicant had pleaded guilty. It is important to denounce firearms offences by way of general and personal deterrence. Both those factors have particular resonance in this case because it was the possession of an unlawful firearm by Kevin Gall which led to his murder of the deceased, who was unarmed. Far from deterring Bruce Gall from arming himself, he submitted, through his counsel, that the fear of reprisals was the reason he acquired a gun. 123I take into account as aggravating factors that the offence was part of a planned or organised criminal activity (s 23A(2)(n)) and, to the extent that it involved keeping a loaded firearm unsecured in a domestic dwelling, was committed, in a broad sense, without regard to public safety (s 23A(2)(i)). 124In respect of each of the offences for which Bruce Gall is to be sentenced, I take into account as mitigating factors lack of substantial criminal record (s 21A(3)(e)), the unlikelihood of re-offending (s 21A(3)(g)) and Bruce Gall's good prospects of rehabilitation (s 21A(3)(h)). In respect of the firearms and pervert the course of justice offences, I am not satisfied that the offences were not part of a planned or organised criminal activity: s 21A(3)(b). 125As referred to above, Bruce Gall has already spent a period of time in custody, most of which, he says, and the Crown accepts, was spent in protective custody. I am not persuaded that this matter ought lead to a reduction in the sentence that I would otherwise impose, nor that special circumstances have been established. 126The offences for which I must sentence Bruce Gall involve his thwarting the investigation by police of a serious crime (in the case of being an accessory after the fact to murder); subverting the administration of justice (in the case of the perverting the course of justice offence); and taking the law into his own hands and reserving to himself the right to attack and kill others by having to hand an unlawful firearm which was loaded and ready to be used. 127Although there is a common theme to these offences, the sentences ought not be wholly concurrent since this would fail to reflect the discrete criminality of each, which requires a substantial measure of accumulation. Loss of the deceased 128Under the law, the loss suffered by the deceased and his loved ones cannot be reflected by any sentence I impose. However, before I impose a sentence, I wish to pause to acknowledge the loss of Neil Green to his family and to his friends. I take this opportunity to extend my personal sympathies to all those to whom Mr Green was dear. 129I am conscious of the observations of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 at 87-88. It is the approach that I adopt in relation to the sentencing of each of the offenders. Sentence 130Kevin Gall: (1)For the offence of pervert the course of justice, I sentence you to a fixed term of imprisonment for 1 year and 10 months, to date from 16 November 2010. (2)For the offences of unauthorised possession of prohibited firearms and prohibited weapons, I sentence you to a fixed term of imprisonment for 3 years and 7 months, with a non-parole period of 2 years and 8 months, to date from 16 November 2011. (3)For the offence of discharging a firearm with intent to cause grievous bodily harm to Michael Fox, I sentence you to a fixed term of imprisonment for 8 years, to date from 16 November 2013. (4)For the murder of Neil Green, I sentence you to a term of imprisonment of 27 years with a non-parole period of 18 years, to date from 16 November 2016. The earliest date upon which you are eligible for release on parole is 15 November 2034. 131Bruce Gall: (5)For the offence of being an accessory after the fact to murder, I sentence you to a fixed term of imprisonment of 2 years, to date from 16 January 2012. (6)For the offence of perverting the course of justice, I sentence you to a fixed term of imprisonment for 16 months, to date from 16 September 2013. (7)For the offence of possessing prohibited weapons, I sentence you to a fixed term of imprisonment for 3 years with a non-parole period of 18 months, to date from 16 January 2015. The earliest date upon which you are eligible for release on parole is 15 July 2016. ********** 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: 26 November 2012