R v Woods; R v Hayes; R v McLachlan; R v Harding; R v Farnsworth (No 2)

Shane De Britt, (“the deceased”) was the President of the Bandidos Outlaw Motorcycle Club, Central West Chapter, and was commonly referred to as “Wock”. In the early hours of 14 January 2020, he was shot once to the head whilst lying in bed at his home. He died shortly after.

The offender, Phillip Woods, was the President of the Grudge Bringers Social Club (“GB”), a social club that occasionally engaged in community works. Brenton Hayes was not a member of the GB. He was the owner of Menace Ink, a tattoo shop in Wellington. He employed Mr Woods as a tattoo artist and was closely associated with him and other members of the GB. The offenders Brendan McLachlan, Jace Harding and Brian Farnsworth were members of the GB.

In the months leading up to the shooting, Bandidos members, at the direction of the deceased, waged a campaign of intimidation and violence towards members of the GB.

The offenders and others were arrested and charged in relation to the murder. On 14 June 2022, the offenders Phillip Woods, Brenton Hayes, Brendan McLachlan, Jace Harding and Brian Farnsworth were committed to stand trial for murder. On 13 September 2023, each offender was arraigned on an indictment containing one count of murder.

Each offender entered a plea of not guilty. A jury was empanelled, and the trial commenced. The trial proceeded over a period of about 12 weeks. Although the indictment contained a single count of murder, an alternative charge of manslaughter was left for the jury’s consideration in the case of Mr Harding only.

The jury retired to consider its verdict on 8 December 2023. The jury returned on 15 December 2023, with a verdict of guilty to murder for each offender. The sentence proceedings were conducted between 8 April 2024 and 11 April 2024.

The offenders must now be sentenced for murder, an offence contrary to s 18(1)(a) of the Crimes Act 1900 (NSW), carrying a maximum penalty of life imprisonment and a standard non-parole period of 20 years.

On 27 April 2023, I sentenced a co-offender, NH, to 13 years imprisonment with a non-parole period of 8 years and 6 months, following the application of a 50% discount. The starting point was one of 26 years imprisonment. The case of NH will be further addressed below when I deal with parity.

In matters such as this, judges are asked to perform an impossible equation. No human life can be ever equated with any penalty, including a period of imprisonment. No gaol term, of any length, can return a loved one. A life should never be measured simply by the punishment meted out to an offender.

The sentence I impose does not, and cannot, measure the life of Mr De Britt. Instead, it reflects the sentencing discretion informed by proper principle. It must reflect adequate punishment, deterrence, and denunciation, in addition to rehabilitation and the protection of the community. It must hold each offender to account and reflect the objective seriousness of the offence and each offender’s moral blameworthiness. It must also take into account each offender’s subjective case, prospects of rehabilitation, and the likelihood, or unlikelihood of future offending.

It is important to commence with an acknowledgment of the life lost. The deceased’s de facto partner, mother and sister have provided victim impact statements. Unsurprisingly, the deceased’s family has suffered a great deal of distress as a result of the murder. The deceased’s sister reports feeling deep anger and grief. She has had to watch her parents grieve the loss of their son. She has also had to watch her children, nieces and nephews fall apart due to the loss of their uncle. I accept that the deceased’s family is a close family unit, and that the deceased played a major part in that family unit.

The deceased’s partner continues to struggle to come to terms with the deceased’s killing. She suffers from severe panic attacks, post-traumatic stress disorder (“PTSD”) and severe anxiety. She has lost the ability to trust others and feels unsafe in her own home. I take into account the victim impact statements pursuant to s 28(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSPA”). I acknowledge that, by its very nature, the offence of murder results in traumatising family members.

Regrettably, these remarks will be lengthy. I must address several disputes that have arisen during the sentencing proceedings. These disputes include the following topics.

Firstly, whether the Crown has established beyond reasonable doubt that Mr McLachlan was the shooter.

Secondly, as to the basis of liability – whether the Crown has established beyond reasonable doubt that the offenders were party to a joint criminal enterprise to shoot the deceased with an intention to kill him or, alternatively, whether I should proceed to sentence the offenders on the basis of extended joint criminal enterprise.

Thirdly, whether the Crown has established that the offence was motivated by a desire to ensure the continuing existence of the GB or, whether the offenders were motivated by a genuine desire to protect themselves and their families from repeated threats and acts of violence perpetrated by members of the Bandidos at the direction of the deceased.

Fourthly, whether, and to what extent, is the offenders’ moral culpability or the objective seriousness of the offence reduced by virtue of any such motivation and/or provocation on the part of the Bandidos.

Fifthly, whether Mr Harding was armed with a sawn-off shotgun or the .22 rifle.

Sixthly, whether the Crown has established, to the requisite standard, that Mr Woods and Mr Hayes were the architects of the plan to shoot and kill the deceased and therefore played primary roles. A separate but related dispute is whether the Crown has established beyond reasonable doubt that Mr Hayes sourced the firearms.

Seventhly, and finally, discrete issues relating to whether some of the offenders have established, on a balance of probabilities, matters relevant to their subjective case.

The principles relevant to fact finding by a sentencing judge following a jury verdict are well established and are summarised in R v Isaacs (1997) 41 NSWLR 374 at 377-378:

With respect to some of the disputes that must be resolved, I am called upon to make findings in relation to the credibility and reliability of the primary Crown witnesses. In performing this function, I must bear in mind the jury’s verdict of guilty which necessarily reflects an acceptance by the jury of at least part of the evidence given by these witnesses.

The primary witnesses were NH, Daniel Westbury, Anthony Ney, and Debbie-Jean Clarke. These witnesses were the subject of cross-examination and challenge. Each presented with difficulties in remembering details of the events in question. NH and Mr Westbury were cross-examined about reasons they had to fabricate and embellish evidence against the offenders, including benefits they received in exchange for assisting the authorities. Mr Westbury was cross-examined about demonstrated lies to police and other authorities in relation to the destruction of his Toyota Yaris (“the Yaris”) motor vehicle and an associated fraudulent claim for insurance.

Each of these witnesses’ reliability was called into question to varying degrees. Mr Ney remembered little of the events in question and was repeatedly taken back to his statements to refresh his memory. Even then, his memory remained poor and extracts from his accounts to police were simply read out onto the record. The extent of his memory impairment made it very difficult to challenge his account to police. His constant refrain in answering questions during cross-examination, was that he could not recall the events in question. He did adopt as being accurate, the account he gave to police.

I was unable to accept the evidence of Mr Ney except insofar as it was corroborated by other reliable evidence. I found him to be a very poor witness and it is unlikely that the jury found him a credible or reliable witness.

NH and Daniel Westbury fall into a different category. Each was legitimately challenged in relation to their accounts. NH received a significant benefit for his assistance to authorities and had a reason to embellish his account and minimise his own role. Mr Westbury is a demonstrated liar. He was also suffering from mental health issues at the time of the relevant events and likely, continued to suffer from those issues at the time that he was giving evidence.

In light of the jury verdicts, however, NH and Mr Westbury must have been accepted at least in relation to parts of their evidence. It is not uncommon for a jury, having scrutinised a witness’s evidence, to accept only parts of it. The jury was directed that they could accept all, nothing, or only parts of a witness’s testimony. In respect to some matters, the evidence of NH and Mr Westbury were consistent. I have been cautious about using the evidence of NH to corroborate the evidence of Mr Westbury (and vice versa) unless there was evidence, independent of their testimony, from which inferences could be drawn supporting their accounts.

In the case of Ms Clarke, I am satisfied that her evidence, including the accounts she gave to police during the investigation, was sufficiently reliable such that the jury would have had little trouble acting upon it. Ms Clarke is the partner of the offender, Mr Harding. They have been involved in a long-term relationship and Ms Clarke remains committed to him. In those circumstances, the evidence that she gave, and upon which the Crown relied, is more likely to have been accepted as truthful by the jury.

I commence by setting out the facts that do not appear to be in dispute in the sentencing proceedings and of which I am comfortably satisfied. I will then address each area of dispute that relates to the nature of the offending, before setting out my conclusions about the objective seriousness of the offence and the seriousness of the role played by each offender. I will then turn to summarise the subjective case of each offender, resolving any dispute raised by the Crown.

Sometime between 12:35am and 4:04am on Tuesday 14 January 2020, the deceased was shot and killed at his home in Eurimbla, by a single shot from a shotgun to the head as he lay in his bed.

As stated above, the deceased was the President of the Bandidos Central West Chapter. The offender, Mr Woods, was the President of the GB. There is no dispute that the GB were a social club. Not all GB members owned motorbikes. There was no suggestion that the GB were involved in any illegal activity. To the contrary, some evidence was led that on occasion members of the GB engaged in community, charitable work.

In the months leading up to the killing, members of the Bandidos threatened and used violence towards members of the GB. The evidence of Detective Lovell, which will be referred to in more detail below, establishes that the Bandidos were an Organisation that had a hierarchical structure. Any violence perpetrated by Bandidos members was authorised and directed by the President.

The conflict, up until around 12 and13 January 2020, was all one-way, with the threats and acts of violence perpetrated by Bandidos members against members of the GB. It is clear from the evidence that the deceased wanted to shut down the GB and insisted that they hand in their patches to him.

The events in the months before 12 and 13 January 2020 culminated in an agreement between the offenders which resulted in the shooting and killing of the deceased. The Crown case at trial relied upon two alternative bases of liability for murder (in the case of Mr McLachlan only, a third basis of liability was that he was the shooter). The primary basis of liability was that the offenders entered into an agreement, in which they each participated, to shoot the deceased with an intention to kill him or cause grievous bodily harm. In the alternative, the Crown relied upon extended joint criminal enterprise, namely that the offenders entered into an agreement to intimidate the deceased, each contemplating the possibility that he would be shot with at least an intention to occasion grievous bodily harm.

The basis of liability upon which the offenders are to be sentenced, is a matter that I will address separately as one of the topics in dispute. For present purposes, it is sufficient to set out the acts constituting the offence that I find established.

Brenton Hayes (“BJ”) was the owner and operator of Menace Ink tattoo shop in Wellington. Mr Hayes employed Mr Woods as the head tattooist at Menace Ink. Mr Hayes managed the business and appointments. Mr Hayes worked in the shop and would “hang around” and talk with customers and associates who frequented the shop.

Phillip Woods (“Phil”) was the founder and the President of the GB. He was the head tattooist employed by Mr Hayes at the Menace Ink tattoo parlour and was closely associated with Mr Hayes. Mr Woods had known the deceased for several years.

Brendan McLachlan (“Mud”) was a member of the GB. He was a close friend of Mr Hayes. Throughout 2019 and up until days before the deceased’s murder, Mr McLachlan resided with Amanda McCauley and Aaron Thomson in Orange.

Jace Harding was a member of the GB. At the time of the murder, Mr Harding and his partner Debbie-Jean Clarke were staying with Mr Woods. Mr Harding owned and rode a black and silver Hyosung motorbike.

Brian Farnsworth (“Belly”) was a member of the GB. At the time of the murder, Mr Farnsworth and his partner, Trudi Schwarz were living with James and Heather Maxwell in Orange.

The GB were a self-styled motorcycle Club founded by Phillip Woods in about 2015. The Club was known as “GB” or “72”. A number of members got tattoos either with the capital letters “GB” or the number “72”. The Club had membership fees which entitled members to a GB t-shirt, stickers, and patches to be sewn onto the member’s own vest.

Mr Woods, Mr Harding, Ms McCauley, Mr McLachlan, Mr Farnsworth and Mr Maxwell were members of the GB. Although Mr Hayes was not a member, he and his tattoo parlour were closely associated with the Club, and members of the Club.

The GB regularly communicated by way of group chats on Facebook Messenger, managed by Ms McCauley.

Tensions between the deceased and Mr Woods (and between the Bandidos and the GB) appear to have started due to Mr Woods association with Mr Hayes.

In September 2019 there was a verbal confrontation between a member of the Bandidos, Ben Ogden, and Mr Hayes when Mr Ogden came into Menace Ink wearing his Bandidos patches. After this confrontation, Mr Hayes banned the Bandidos from the shop as they had breached an agreement not to wear patches in Menace Ink. Mr Woods agreed that the deceased had been warned and declared that “this is war”.

Initial tensions arising out of the confrontation between Mr Hayes and Mr Ogden escalated. To be clear, any reference to escalating tensions or conflict in the weeks and months leading up to 12 and 13 January 2020, is a reference to the escalation in the use of intimidation and violence by members of the Bandidos towards members of the GB.

In November 2019 members of the Bandidos rode into Wellington in full Bandidos colours. Police, having been informed of their anticipated arrival, stopped, and searched the Bandidos, and issued them with move on directions.

Following this incident, it was believed that a member of the GB, Mr Ney, had called the police leading to the Bandidos being stopped. The deceased considered this to be a “cardinal sin”. Mr Ney was labelled a “rat”. The deceased wanted him fired from his job at The Wellington Hotel and wanted the GB to be informed that they were no longer welcome at the Hotel.

In the latter part of 2019, the conflict between the Bandidos and the GB worsened.

In November 2019 Mr Ney was at Menace Ink. Mr Woods told him: “the Bandidos have put a hit on your head and it’s not safe for you anymore”. A meeting with members of the GB from both Wellington and Orange was held. That meeting was referred to as the “Mitchell Highway meeting”.

A number of people, including Mr Woods and Mr Hayes, met at that location. During the meeting, Mr Woods and Mr Hayes began to discuss the ongoing tensions with the Bandidos. One of the areas of dispute relates to precisely what was said during this meeting and whether Mr Woods and Mr Hayes were talking about killing members of the Bandidos including the deceased.

The Crown does not contend that the joint criminal enterprise (or extended joint criminal enterprise) was formed at the Mitchell Highway meeting. The Crown case is that the agreement crystallised at a later date, closer to 12 January 2020. Instead, the Crown relies upon the Mitchell Highway meeting as part of the category of evidence establishing the ongoing and escalating conflict between the Bandidos and the GB.

After the Mitchell Highway meeting, NH stayed at Mr Ney’s residence for five or six nights because there were ongoing concerns about the safety of Mr Ney. Mr Hayes provided NH with a rifle to assist him in protecting Mr Ney. After some days, Mr Woods attended the premises and told Mr Ney that he was no longer in danger.

In late December 2019 and early January 2020, the conflict continued to escalate.

A number of incidents occurred between the Bandidos and GB on 11 January 2020, which escalated the conflict between the groups. The incidents can be summarised as follows:

The deceased sent messages to Ms McCauley expressing his displeasure about the fact that Mr Woods was still the leader of the GB and the fact that he was being deceived. A message authored by the deceased and sent to Ms McCauley was forwarded by Ms McCauley to Mr Woods. Mr Woods responded: “fuck that muppet, it’s on put in group chat it open season to put patches away and to start taking the detos on we fight we win we take all”.

On 12 January 2020 at 6:42pm, the Facebook group chat was renamed “Bye Felicia”. Participants in that group chat were Amanda McCauley, Phillip Woods, Aaron Thomson, James Maxwell, Jace Harding, Debbie-Jean Clarke, Melissa-Jane, Mark Kelly, John Lord, Brendan McLachlan and Brian Farnsworth. NH was added to the Facebook group chat on 12 January 2020.

That afternoon, on the deceased’s orders, members of the Bandidos began confronting members of the GB around Orange and Wellington individually and in groups, demanding they surrender their patches.

Thereafter, several incidents took place leading up to the murder. On 12 January 2020, Mr Hayes, Mr Westbury and Mr Harding gathered at Mr Woods house in Orange. Mr Westbury saw a sawn-off shotgun in front of the coffee table and Mr Woods told him he had it for protection. Mr Woods said words to the effect of: “it can’t happen tonight, no one can show up”. The reference to “it”, was relied upon by the Crown at trial, as a reference to killing the deceased.

On the afternoon of 13 January 2020, Mr Hayes asked Mr Westbury to pick NH up from Stuart Town. Mr Hayes gave Mr Westbury instructions to tell NH to bring his ute and follow Mr Westbury back to Mr Woods’ house.

By 9:30pm, the co-offenders arrived at Mr Woods’ house. Mr Hayes told everyone to turn their mobile phones off. A number of firearms were cleaned and prepared. One of the firearms was a Franchi self-loading shotgun. This was the firearm ultimately used to kill the deceased. Another firearm was a double barrel shotgun, which Mr Harding was loading with ammunition. A further firearm was a .22 rifle.

Mr Hayes and Mr Woods issued a number of instructions. Mr Hayes instructed people on which cars they would be travelling in. Instructions were given that Mr Westbury’s Yaris would be burnt out after the shooting. Mr Hayes gave Mr Westbury directions to the “staging area”, a location at which the offenders met before some of them proceeded to the deceased’s home.

A further factual dispute relates to the evidence given by Mr Westbury and NH, that Mr Woods instructed the group to “leave no witnesses behind”. This representation is disputed by Mr Woods and is a matter that I will have to resolve.

The firearms were wrapped and placed in the boot of the Yaris. A minor factual dispute relates to whether Mr Farnsworth was in possession of a sawn-off shotgun upon leaving Mr Woods’ house and travelling in NH’s ute with Mr Westbury.

I do not accept Mr Westbury’s evidence on this point. His description of the way in which Mr Farnsworth concealed the sawn-off shotgun whilst sitting in the vehicle does not ring true. I am satisfied that Mr Farnsworth was armed with a sawn-off shotgun upon entering the deceased’s house, but that he came into possession of it when the men pulled up at the deceased’s property and the firearms were distributed from the boot of the Yaris. Not a great deal turns on whether Mr Farnsworth was armed with the sawn-off shotgun upon leaving Mr Woods’ house, or whether he came into possession of it when the group pulled up outside at the deceased’s premises.

In the early hours of 14 January 2020, NH, Mr McLachlan, Mr Farnsworth, Mr Harding and Mr Maxwell, travelled in the Yaris to the deceased’s home. I pause to note that Mr Maxwell was not an accused in the trial. His proceedings are being dealt with separately.

The deceased’s house was on a rural property. NH parked the car some distance from the house, so that the men could sneak up to the house, as had been previously arranged. They were all wearing dark clothing, some were wearing gloves and had their faces covered. Each was armed with a firearm. At least two firearms (the Franchi self-loading shotgun and the .22 rifle) were loaded.

While the men were sneaking up to the deceased’s house, Mr Harding, whom I am satisfied was armed with the .22 rifle, accidentally discharged that firearm twice.

Sometime between 12:24am and 4:04am, NH, Mr McLachlan, Mr Harding and Mr Farnsworth, entered the deceased’s house by quietly opening the front door. Mr Maxwell did not enter the house but remained nearby.

NH kicked open the deceased’s bedroom door and he and the others entered the bedroom. The deceased was lying in his bed. The co-offenders pointed their firearms at the deceased. The deceased saw the men and said: “what the fuck?”.

The Crown case at trial alleged that Mr McLachlan was the shooter. Mr McLachlan denies he was the shooter and submits that it is more likely, on the forensic evidence, that NH was the shooter. In due course, I will set out my reasons as to why I am not satisfied that Mr McLachlan was the shooter.

A firearm was discharged striking the deceased. The deceased suffered a shotgun wound to the head, which caused his death. After the deceased had been shot, the offenders immediately left the house.

The men returned to the car. They placed the firearms in the boot. NH drove himself, Mr McLachlan, Mr Harding, Mr Farnsworth and Mr Maxwell to the previously arranged meeting place with Mr Hayes. The firearms were transferred to Mr McLachlan’s car and the Yaris was set alight to destroy evidence of any involvement in the murder.

On the morning of 14 January 2020, the deceased’s body was discovered laying in his bed. Police and ambulance attended shortly after and confirmed the deceased was dead.

Evidence of post-offence conduct, listening device and telephone intercept product, was adduced during the trial. It is unnecessary to summarise that material here. Some of that evidence will be referred to in the course of resolving the various disputes.

The Crown contends that I would proceed to sentence Mr McLachlan on the basis that he was the shooter. In support of that contention the Crown relies upon the combination of the following circumstances:

In response, Mr Pararajasingham, on behalf of the offender, submitted that Mr McLachlan was not the shooter for the following combined reasons:

I am far from satisfied that the Crown has established beyond reasonable doubt that Mr McLachlan was the shooter. On the evidence adduced at trial, it is more likely that NH was the shooter.

The only direct evidence of who fired the fatal shot came from NH. NH gave evidence that he heard Mr Harding say: “take him”, upon which a shot was discharged from the firearm that, by inference, must have been in the possession of Mr McLachlan. I do not accept that Mr Harding said: “take him”.

That evidence does not sit comfortably with representations captured on listening device product following the shooting. NH is captured saying: “mate, mate, you know, not my first rodeo, but I could tell it was theirs”; and, “I marched them back in there” and “…fucken had to do it and then just fucken, yeah”.

His representations, captured at a time when he was unaware that he was being recorded, strongly suggest that he was leading the charge at the scene. Although other members of the group were party to a joint criminal enterprise, NH’s representations, both during the walk-through with police, and in his own unguarded conversation captured by way of listening device, strongly suggest that he was the one in control as events transpired and unfolded in the deceased’s home.

NH had a motive to minimise his role and nominate somebody else as the shooter. While I acknowledge that the jury must have accepted his evidence with respect to some matters, the guilty verdicts do not demonstrate that the jury must have accepted him with respect to his evidence as to the identity of the shooter. The Crown case at trial heavily relied on a joint criminal enterprise.

Indeed, the objective evidence suggests that the position of the shooter was within one or two metres from within the doorway of the bedroom. Sergeant Dusting gave expert evidence that the firearm was discharged “probably within about one metre” of the doorway. A spent cartridge was found in that location. Dr Allan Cala’s evidence was that the shotgun wound was on the right side of the deceased’s face. Both of these objective matters are consistent with the location of the shooter being within the doorway and to the left of the deceased.

NH gave evidence that he opened the bedroom door and pointed the firearm he was holding at the deceased. NH is recorded on a surveillance device admitting that he “kicked the door in” and “had to do it”. He accepted that he used the expression “not my first rodeo” to convey his involvement in a previous altercation and discharge of a firearm.

In the walk-through video, NH graphically described the movements and actions of the offenders upon entering the deceased’s house. He clearly identified his position within the bedroom and indicated the position of Mr McLachlan. NH’s evidence about his position within the bedroom is entirely consistent with the objective evidence as to where the shooter must have been standing when the shot was discharged.

The evidence of Mr Harding, admitted as “retaliatory hearsay”, adds little to the Crown’s contention that it was Mr McLachlan who was the shooter because Mr Harding initially told police that NH was the shooter.

Furthermore, the DNA evidence has little evidentiary value in circumstances where the DNA profile was a mixture, consisting of four contributors. Although Mr McLachlan could not be excluded as a contributor, there was no way to distinguish whether Mr McLachlan’s DNA was deposited on the shotgun cartridge directly or was transferred to the cartridge indirectly.

Mr McLachlan’s experience with firearms; being the registered owner of several firearms; purchasing ammunition consistent with that used for the Franchi firearm; and, disposing of the firearm, fall short of establishing beyond reasonable doubt that he was the shooter.

NH’s description of events during the walk-through, the expert evidence and the position of the spent cartridge, strongly indicate that it is more likely that NH was the shooter.

It follows that I am not satisfied that the Crown has established beyond reasonable doubt that Mr McLachlan was the shooter.

A great deal of time was dedicated to submissions about the basis of liability upon which the offenders should be sentenced. The Crown contended that the offenders should be sentenced on the basis of a joint criminal enterprise, being an agreement to shoot the deceased with an intention to kill him.

On behalf of each offender, I am urged to proceed on the basis that they were party to an extended joint criminal enterprise, namely an agreement to “scare” the deceased, each contemplating the possibility that he would be shot with an intention to at least inflict grievous bodily harm.

The Crown case at trial proceeded on two alternative bases of liability (putting aside Mr McLachlan being the shooter). The Crown opening and closing address, repeatedly referred to the primary basis of liability being a joint criminal enterprise to shoot the deceased with an intention to kill him or at least do grievous bodily harm. In the alternative, the Crown addressed the jury about extended joint criminal enterprise, namely that the offenders entered into an agreement to intimidate the deceased, contemplating the possibility that he would be shot with an intention to kill him or occasion grievous bodily harm.

The jury returned verdicts of guilty to murder. It goes without saying that in returning verdicts, the jury did not nominate the basis of liability of which they were satisfied. It therefore falls to me to consider the evidence and make findings with respect to this issue.

The submissions made on this topic were lengthy and I do not intend to summarise them in any detail. Essentially, the Crown reiterated the circumstances relied upon at trial, which are summarised in his closing address to the jury, contending that the irresistible inference is that the offenders entered into an agreement to shoot the deceased with an intention to kill him. The Crown submitted that not only is this the only rational inference, but that the reasonable possibility posited by the offenders, that the only intention was to scare the deceased, is so implausible as to have been excluded beyond reasonable doubt.

On behalf of each offender, extensive and careful submissions were made as to why I should proceed to sentence the offenders on the basis of an extended joint criminal enterprise. Although it was conceded that some of the circumstances are consistent with an intention to kill, they are not inconsistent with an intention to scare the deceased, contemplating the possibility that he would be shot with an intention to at least occasion grievous bodily harm.

I do not find it necessary to summarise the submissions made on behalf of the offenders. I have however had regard to all of the submissions made, in writing and orally, on behalf of each offender. I have given those submissions very careful consideration.

To the extent necessary, I will refer to them in my analysis of the evidence and in setting out my findings. Insofar as I do refer to the submissions made on behalf of the offender, I bear in mind that the offenders do not have to prove anything.

To be clear, I proceed to resolve this issue bearing in mind that it is for the Crown to establish beyond reasonable doubt the basis of liability. It is not for the offenders to persuade me that they did not enter into an agreement to shoot the deceased with an intention to kill him. They do not have to persuade me that the agreement was simply to scare the deceased. Having considered the evidence, if I find that it is reasonably open that the basis of liability underpinning the guilty verdicts, is one of extended joint criminal enterprise, then I am obliged to sentence the offenders on that basis. Any findings adverse to the offenders must be established to the highest standard known in the criminal law, beyond reasonable doubt.

Much of the evidence at trial was admissible in each case. The circumstances relied upon by the Crown were also relevant, in large part, to each case. Where evidence was not admissible in all cases, I will identify that evidence and limit it to my consideration of the issues with respect to that individual case.

The evidence relating to the escalating conflict between the Bandidos and the GB is admissible and relevant in each case. It is one of a number of circumstances relied upon by the Crown to establish a joint criminal enterprise to shoot the deceased with an intention to kill him.

As referred to above, that conflict, at least up until 12 and 13 January 2020, was all one-way. Threats and violence were perpetrated by members of the Bandidos towards members of the GB.

Detective Lovell’s evidence about the hierarchal structure of the Bandidos and their use of violence, is highly relevant to the escalating conflict between the two groups.

During cross-examination of Detective Lovell by Mr Stratton SC, Detective Lovell agreed with a number of propositions about the structure and hierarchy of the Bandidos outlaw motorcycle club:

Detective Lovell also agreed that an outlaw motorcycle gang, such as the Bandidos, is structured in a way that reinforces loyalty to the Organisation and other members of the Club, above all else. Detective Lovell agreed that the Bandidos have a culture and general expectation that members of the Club support each other in response to any situation and that any such responses are for the protection of members of the Club and the advancement of the reputation of the Bandidos.

It is with this context in mind that I have considered the events leading up to 12 and 13 January 2020.

The earliest instance of intimidation by a member of the Bandidos occurred in September 2019 when Mr Ogden attended Menace Ink in Bandidos colours and confronted Mr Hayes. Although Mr Hayes was not a member of the GB, I am satisfied that he was closely associated with Mr Woods and Mr McLachlan.

Mr Hayes remained calm in dealing with Mr Ogden, but I accept that this was an early skirmish that escalated in the following weeks.

The hostility on the part of the deceased towards the GB appears to have increased because the deceased believed that a member of the GB had contacted the police on 23 November 2019, with the result that the police attended The Wellington Hotel and asked Bandidos members to move on.

Mr Ney was told by “Stretch”, a member of the Bandidos, that the Bandidos were going to “knock” him. Mr Ney took that threat sufficiently seriously for him to agree that NH stay at his house, armed with a firearm, for his protection.

In December 2019, Mr Ogden and other Bandidos attended Mr Ney’s house. They took an Xbox from him and made him withdraw $400 from his bank account, which was all the money in the account. He was taken to see the deceased, who asked him if he had called the police when they had attended at The Wellington Hotel. Mr Ney denied calling the police. In the course of that conversation the deceased said: “there is a hole down the back” meant for Mr Ney. Mr Ney took the representation to mean that the hole was where he was going to be buried after he was killed.

Mr Thomson gave evidence that on 11 January 2020, he was riding his bike, wearing his GB vest. He was stopped at a rest stop at Molong. He was approached by two males. One of the men said: “we are from the Bandidos Central West Chapter. I need the keys to your bike and your vests”. Mr Thomson replied: “it ain’t happening”. One of the men was carrying a dark towel by his waist. He pulled the towel back slightly to reveal the barrel of a sawn-off shotgun. The man with the shotgun said: “you have two choices”. Mr Thomson froze in fear.

One of the men recognised Mr Thomson as someone he knew. He made a phone call. While he was making the phone call, the second man walked right up to Mr Thomson and stood beside him. Mr Thomson felt that he was not free to leave and that he might be assaulted or even shot if he tried to leave. A reasonable inference is that the phone call was made to the deceased who instructed the two men that Mr Thomson could leave.

On 11 January 2020, Jack Wake received a number of messages from the deceased. The messages stated that any males wearing the colours of the GB would have them taken off them and “any resistance and you all will be bashed”.

On the same day, CCTV footage showed a number of members and associates of the Bandidos, circling around the streets in Orange. Their behaviour was consistent with trying to locate members of the GB.

Still on 11 January 2020, there was a meeting at McDonald’s between Bandidos members on the one hand and Ms Amanda McCauley and Ms Clarke on the other hand. The Bandidos demanded that the GB surrender their colours. Ms McCauley refused. The meeting ended with one of the Bandidos, Anthony Coyte, yelling: “I have no problem with beating up a woman”, and another Bandidos member yelling out to Ms McCauley: “I am going to flog you”.

Also on 11 January 2020, a number of Bandidos arrived at Mr Woods’ house. They attempted to lure Mr Woods outside. Ms Clarke witnessed Mr Woods’ partner, Rebecca, packing up her belongings to go and stay with her sister that night.

On the night of 11 January 2020, Mr Harding and his partner, Ms Clarke, went to work cleaning the Orange Regional Museum and Gallery. A large group of Bandidos surrounded the gallery. CCTV footage played during the trial depicts members of the Bandidos and their movements prior to the assault on Mr Harding.

When Mr Harding exited the gallery, he was punched in the head. He ran away and was chased by a number of Bandidos members and associates. I accept that this confrontation caused Mr Harding and Ms Clarke considerable fear for their safety. They attended, together with Mr McLachlan, the police station to report the incident.

On 12 January 2020, the day before the shooting, Mr Lord a member of the GB, received a number of telephone calls and text messages directing him to surrender his colours. Mr Lord received a message from James Lanarch, another Bandidos member, which read:

Although Mr Lord was not at home, he was warned by neighbours that there were men at his property at Bathurst. Mr Lord ultimately agreed to surrender his colours. He was worried that if he didn’t hand over his patches, the Bandidos would hunt him and his family down.

At 9:07pm on 12 January 2020, the deceased sent a message to a person referred to as “Frank Bandido”, saying: “udge bringers dropping off patches. The rest we bash and take them”.

This is a summary of the threats and violence perpetrated by members of the Bandidos, at the direction of the deceased, towards members or associates of the GB. I am satisfied that although not every incident involved the offenders, they were aware of the threats and use of violence.

In Mr Harding’s case, I find that he was assaulted by members of the Bandidos on 11 January 2020, an incident that caused him considerable fear. Clearly, the jury, by its verdict, accepted that the Crown had negatived self-defence and defence of another. However, it is not inconsistent with the jury verdict to find, as I do, that at the time of the killing, the offender was in fear for his and his partner’s safety.

This background is relevant to the topic of motivation and the related findings about the objective seriousness of the offence. For present purposes, the history of conflict is set out in full to demonstrate that this circumstance is equally consistent with an extended joint criminal enterprise.

That said, the Crown relies upon several other circumstances in support of the contention that the offenders entered into an agreement to shoot the deceased with an intention to kill him or inflict grievous bodily harm.

The offenders, Mr Woods, Mr Harding, Mr McLachlan and Mr Farnsworth, were members of Facebook chat groups associated with the GB. On 17 September 2019, Mr Woods posted a message to the GB chat group saying: “we are officially in a war with the detos….no patches to be worn at this time”.

At 18:04 on 17 September, Mr Woods reposted a message he had received from the deceased at 17:52. The message from the deceased was expressed in an indignant tone and presented an ultimatum in threatening terms:

At 18:13 on the same day, Mr Woods received a message from the deceased in which he said he was “furious” with Mr Woods and Mr Hayes.

These hostilities appear to have been triggered by Mr Ogden attending Menace Ink, wearing his patches, and confronting Mr Hayes.

Exhibit C60 sets out the Facebook communications. It reveals that Mr McLachlan, Mr Harding and Mr Farnsworth were aware of and responded to Mr Woods’ posts.

Although the deceased was angry and expressed his intention to defend his “chapter till the end”, by 19:13 on 17 September 2019, the deceased and Mr Woods appear to have resolved their differences. But, by 1 November 2019, hostilities were reignited. At 20:06, Mr Woods posted to the GB chat: “obviously shit hit fan and I’m stuck doing politics instead of sleeping”.

At 20:06 Mr Lord asked: “not good I take it it’s gona be a long process?”. At 20:07, Mr Woods posted: “no if you’re ready to pick up a piece and come cap a few we be good but are you ready to cross that line”. Mr Farnsworth sent a thumbs up emoji.

On 11 January 2020 at 14:12, Ms McCauley posted a message to the GB group stating: “hey guys patches away and to start taking the detos on we fight we win we take all (thumbs up’d by Facebook user)”. After sharing a message received from the deceased to the GB chat group, Ms McCauley posted: “sounds like he gonna try and take the boys cuts and bikes by that msg”.

Mr Farnsworth posted to the group: “let them try and take my cut I will take there life. No bandidto will be left standing”. Mr Harding, in less inflammatory terms, posted: “they want to try and fuck with a social club just go’s to show how pissie there 1%ers really are”.

This summary of the Facebook messages demonstrates that the offenders were aware of the tension between the deceased and Mr Woods and by extension between the Bandidos and the GB. Mr McLachlan and Mr Harding made minimal contribution to the posts. Mr Farnsworth was more forthcoming in his contribution to the Facebook messages. Mr Farnsworth’s messages demonstrate a willingness on his part to engage in violent conduct against the Bandidos, although I am of the view that much of his contribution was simply bravado and hyperbole.

Clearly, there were periods from September 2019, when there was tension between the two groups. The Facebook posts together with the evidence of threats and acts of violence perpetrated by the Bandidos, paint a picture of the tension and fear that existed in the lead up to the shooting. That material, by itself, does not establish that the object of the agreement reached between the offenders, was an intention to kill the deceased.

Mr Hayes was not a party to the Facebook post as he was not a member of the GB. I am however satisfied that Mr Hayes was aware of the threats and violence perpetrated by the Bandidos against members of the GB, at least in a general sense. He was a close friend of Mr Woods and Mr McLachlan. He had an association with other members of the GB, largely through Menace Ink. He was clearly aware of the threat to Mr Ney, providing a firearm to NH to arm him in his task of protecting Mr Ney. Mr Hayes was in attendance at the Mitchell Highway meeting where I am satisfied that Mr Woods shared his concern about the actions of the Bandidos.

On 25 November 2019, a meeting was held during which the tensions between the Bandidos and GB were discussed. Relevantly, the offenders Mr Woods, Mr Hayes, Mr Harding and Mr Farnsworth were present at that meeting.

Ms Clarke was present at the meeting and gave evidence that there was discussion about people “going to be hurt”. Although she could not initially recall who those people were, she did refer to them as members of the Bandidos. After refreshing her memory from her statement dated 5 October 2020, she was able to confirm that the names mentioned were Bandidos members and included the deceased.

Mr Ney could not remember much about what happened at the Mitchell Highway meeting. He read extracts from his police statement which included an account that Mr Hayes said he could organise the cars and had already organised the guns. I do not accept Mr Ney as a reliable or credible witness. In the absence of independent evidence supporting his account, I am unable to rely upon it in determining the details of the discussion at the Mitchell Highway meeting.

NH and Mr Westbury gave some evidence about the meeting although their account of what was actually said is lacking detail. With respect to Mr Woods, Mr Hayes, Mr Harding and Mr Farnsworth, I am satisfied that they attended the Mitchell Highway meeting, during which there was discussion, led by Mr Hayes and Mr Woods, about the GB response to the Bandidos escalating a campaign against them. It is unclear as to what was precisely said about future plans to confront Bandidos. I am unable to find that representations were made at that meeting that the deceased was to be shot and killed.

With respect to Mr Harding, he admitted in his interview dated 30 September 2020 that he heard Mr Hayes talking about “doing a hit” on the deceased and “he wanted to go for a snake and cut it’s head off”, a reference to the deceased as the President of the Bandidos. This evidence is admissible only in the case of Mr Harding. Mr Harding was aware of the escalating tensions, but I do not accept that he took Mr Hayes seriously, at that point in time.

The Mitchell Highway meeting contextualises the events between 12 and 14 January 2020. It is evidence, together with the Facebook posts and the incidents of intimidation and violence perpetrated by the Bandidos, that provides the background to what happened at the deceased’s home.

The Crown does not contend that the joint criminal enterprise was formed at the Mitchell Highway meeting. On the Crown case, the joint criminal enterprise did not crystallise until sometime later. It is apparent to me that the Mitchell Highway meeting was an opportunity for some of the offenders, and other attendees, to discuss the escalating tensions with the Bandidos. I am also satisfied that Mr Hayes and Mr Woods were leading those discussions. As to what was precisely said, I cannot make any findings because the evidence is inadequate.

On the evening of 12 January 2020, Mr Hayes and Mr Westbury attended Mr Woods’ house. Mr Westbury gave evidence that while in the lounge room Mr Woods said words to the effect: “it can’t happen tonight, no one can show up”. I accept Mr Westbury’s evidence in this regard. It is supported by objective evidence contained in Exhibit C60.

Mr Woods posted a Facebook message to Ms McCauley on 13 January 2020 10:15am, which said: “came close to all can eat buffet last night, let’s just say to much to eat just one person tho”.

The only reasonable inference to be drawn from this evidence, at least as far as Mr Woods and Mr Hayes are concerned, is that there was a plan to confront the deceased with violence on 12 January 2020, but the plan was delayed.

The events that took place on the evening of 13 January 2020 and in the early hours of 14 January 2020 provide compelling evidence of a joint criminal enterprise to shoot the deceased with at least an intention to occasion to him grievous bodily harm. I will deal with each occasion separately.

By 13 January 2020 Mr McLachlan, Mr Harding and Ms Clarke were staying with Mr Woods. I am satisfied that they relocated to his residence because they either feared for their own safety (in the case of Mr Harding and Ms Clarke) or the safety of others (in the case of Mr McLachlan who was concerned about his parents).

On the evening of 13 January 2020, the offenders were present together at Mr Woods’ house. Mr Farnsworth arrived at the premises late. Also in attendance were Ms Clarke, Mr Westbury and NH. A number of firearms were present at the premises, including sawn-off shotguns, the Franchi self-loading firearm and the .22 rifle. For reasons that I will explain below, I am satisfied that these firearms were sourced by Mr Hayes.

I accept that Mr Woods hosted this meeting to make preparations in furtherance of the agreement that the offenders attend the deceased’s home to shoot him with an intention to at least inflict grievous bodily harm. The fact that Mr Harding, Ms Clarke and Mr McLachlan were staying at the house, is not inconsistent with Mr Woods hosting the meeting for the purpose of preparing to execute that plan.

Clearly, preparations were undertaken at the house. Instructions were given about several matters. Firearms were cleaned both internally and externally. At least two firearms were loaded. The firearms were placed in the boot of the Yaris, before that car conveyed some of the men to the deceased’s property.

As set out earlier in this judgment, Mr Westbury’s evidence suffered from several shortcomings. He admitted that he lied to police in his insurance claim, following the burning of the Yaris. He volunteered that at the relevant time he was suffering from mental health issues and continued to do so during the trial. He has a hearing impairment and on 13 January 2020 did not have the assistance of a hearing aid.

I therefore approach his evidence with some caution. Having done so I am satisfied of the following:

There were instances when a particular offender was not present when a representation was made, or instruction given. For example, I accept that there was no evidence that Mr McLachlan was aware of the plan to burn out the Yaris. Another example is that Mr Farnsworth was not present when the representations were made by Mr Woods to the effect that “no witnesses should be left behind”.

However, as it transpired the group did travel in a convoy of three cars to the “staging area”; NH, Mr McLachlan, Mr Harding and Mr Maxwell travelled in the Yaris, leaving Mr Farnsworth to travel with Mr Westbury in NH’s ute; the firearms were placed in the boot of the Yaris; the firearms were produced and handed out to the group of men who then entered the deceased’s home minutes before he was shot; the Yaris was destroyed by fire following the shooting; and, Mr Westbury did contact his insurance company to make a fraudulent claim.

I accept the evidence of Mr Westbury and NH that firearms were being cleaned both internally and externally at Mr Woods’ house.

Mr Westbury and NH gave an account of hearing Mr Woods say something to the effect that they were not to leave any witnesses behind. Mr Westbury specifically gave evidence that before the group left the house, Mr Woods said something like: “anyone that was in that house was to get it, leave no witnesses”.

NH gave evidence that Mr Woods said words to the effect of: “…anyone else in the house was going to be shot as well” and “don’t leave any witnesses”. The consistency is compelling. I do not accept that Mr Westbury and NH colluded to make up a story that Mr Woods said these words and were able to get their stories sufficiently aligned to give a consistent account of what was said. It is notable that the representation was made by Mr Woods in the context of members of the group cleaning firearms both externally and internally and loading at least some of the firearms.

In the case of Mr McLachlan, I have had regard to admissions made during his ERISP, that he heard “Phil” say, “everyone there has got to go”. Although Mr McLachlan was initially vague as to whether he had heard the representation himself, it became clear during the interview that he was present and heard the representation, witnessing Mr Hayes nodding:

In the case of Mr Harding, I am not satisfied that he heard Mr Woods say words to the effect of “leave no witnesses behind”. He was asked about that subject in his ERISP dated 30 September 2020 and responded as follows:

Mr Westbury conceded during his evidence that it was possible that Mr Harding was not present when Mr Woods made that representation. Accordingly, the Crown has not established to the requisite standard that Mr Harding did hear the instruction given by Mr Woods.

I am therefore satisfied that the Crown has established beyond reasonable doubt that Mr Woods did say something to the effect of “leave no witnesses behind” and that some of the offenders heard those words. I am not however persuaded that the representation bears the significance placed upon it by the Crown.

Although I accept that Mr Woods made the representation, I do not accept that the instruction was taken seriously by those who heard it. The evidence suggested that Mr Woods and Mr Hayes regarded themselves as “wannabe bosses”. On occasion they were perceived by members of the group as expressing bluster and bravado.

Furthermore, the events, as they transpired in the deceased’s home, do not support a finding that Mr Woods seriously believed that his instruction would be carried out or that the group took the instruction seriously. The deceased’s partner was present in one of the rooms. She had taken a sleeping tablet and slept through the whole incident. Not only was there no attempt to find out whether there were other occupants present, but following the shooting, the group immediately left the house.

Mr Woods remained at his premises. Mr Westbury drove NH’s ute, accompanied by Mr Farnsworth. NH, Mr McLachlan, Mr Harding, and Mr Maxwell got into the Yaris, with the firearms in the boot, and the three cars travelled in a convoy to the “staging area”.

It is not entirely clear as to what was discussed at the “staging area”. Mr Westbury could not hear what was being said, having been instructed by Mr Hayes to stay back from the group. However, following the staging area interlude, NH, Mr McLachlan, Mr Harding, Mr Farnsworth and Mr Maxwell travelled to the deceased’s property in the Yaris with the firearms in the boot of the car.

That each offender was dressed in dark clothing and at least some had face covering, does not add significantly to the Crown’s contention that the offenders were involved in a joint criminal enterprise to shoot the deceased with an intention to kill him. It is equally consistent with attending the premises with an intention to cause him grievous bodily harm, or participating in a plan to scare the deceased, contemplating that he would be shot with an intention to at least inflict grievous bodily harm.

Of considerably more significance is the preparation that took place at Mr Woods’ house (as set out above) and the actions of the offenders once they reached the deceased’s property.

Having made their preparations, some of the offenders, armed with firearms, some of which were loaded, attended the deceased’s property in the middle of the night, parked some distance away and proceeded to sneak up to the house. The only light emanating from the house came from the television. It was quiet. There was nothing to indicate that Bandidos were congregated at the house.

Although Mr Harding accidentally discharged his firearm twice, the group continued undeterred. The group entered the house. I accept that there was a cursory search of some of the rooms before NH kicked open the deceased’s bedroom door. Within what must have been seconds of entering the deceased’s bedroom, a shot was discharged striking the deceased as he lay in his bed.

I accept that NH was leading the charge as events unfolded in the deceased’s home. He kicked the bedroom door open. He stepped inside the deceased’s bedroom standing at the point from which it is likely the firearm was discharged and pointed the gun at the deceased. The shot was discharged, striking the deceased’s head and killing him shortly thereafter.

As alluded to earlier, NH was captured on listening device (MFI 88) making the following representations:

Although I am satisfied that NH was leading the charge inside the deceased’s home, a matter relevant to assessment and comparison of roles, the Crown has excluded as a reasonable possibility, that NH acted on a frolic of his own and outside the scope of any joint criminal enterprise.

The offenders’ actions and representations during the evening of 13 January and events in the early hours of 14 January, leave me with no doubt that they were party to a joint criminal enterprise to shoot the deceased with an intention to at least inflict grievous bodily harm. I am unable to find beyond reasonable doubt that the intention was to kill him. However, it is clear to me that the offenders intended to cause serious bodily injury to the deceased, to demonstrate that they were willing to engage in extreme measures to stop the intimidation and acts of violence perpetrated against them and their associates at the direction of the deceased.

The notion that the offenders went to the efforts they did, including but not limited to, attending the deceased’s home in the middle of the night, armed with loaded firearms (at least two) and being undeterred even after the .22 rifle was accidentally discharged twice, to simply scare the deceased, is entirely implausible. I am satisfied that the Crown has excluded this is a reasonable possibility.

A separate but related issue is motivation. The motivation of the offenders is a matter relevant to an assessment of the objective seriousness of the offence. In Tepania v R [2018] NSWCCA 247 Johnson J (Payne JA and Simpson AJA agreeing), stated at [112]:

In Elmir v R [2021] NSWCCA 19, it was stated at [55] that it is:

The Crown contends that Mr Woods was motivated by a desire to ensure the continuing existence of the GB and its expansion so that he could one day become the national President of the Club. With respect to the other offenders, the Crown contends that they were also motivated by a desire to ensure the continuing existence of the GB.

Such reasoning does not stand up to scrutiny. The GB were not an outlaw motorcycle club. They were not engaged in profiteering from illegal activity. The Club was made up of a small number of misfits who were brought together for a variety of reasons, primary amongst them seeking a sense of identity and belonging. They were a motley crew. Although they engaged in planning and successfully engaged in a joint criminal enterprise to inflict upon the deceased really serious bodily harm (resulting in his death), the execution of the plan was not sophisticated.

The evidence at trial did not suggest that there were interstate chapters of the GB. There was no evidence that the GB were recruiting members from other states or that any serious steps had been taken to roll out the Club nationally. Furthermore, other than congregating from time to time at Menace Ink, and engaging in some charitable works, the GB offered little besides an opportunity for individuals to associate with each other. Although the Club played an important role in the lives of the offenders, it was not so important that they were motivated to execute this plan simply to ensure the Club’s continuing existence.

Instead, I am satisfied that each offender was motivated by a desire to put an end to the intimidation and violence perpetrated against him and/or his associates by the Bandidos at the direction of the deceased, by demonstrating that they were capable of serious violence themselves. The fact that the Crown negatived self-defence in the case of Mr Harding, does not preclude such a finding. Mr Harding and Ms Clarke had moved in with Mr Woods, seeking refuge. Mr McLachlan was also staying with Mr Woods, to divert attention away from his parents’ home. Mr Woods’ partner packed herself and her child up and left the premises.

My finding as to motivation, must be considered in the context of the incidents of intimidation and violence perpetrated by the Bandidos against members of the GB (as set out above at [106]-[123]), together with the evidence given by Detective Lovell as to the structure and hierarchy of an outlaw motorcycle club such as the Bandidos.

Furthermore, there was evidence in the trial of a recorded conversation between Detective Lovell, Mr Harding, and Ms Clarke on 17 September 2020. This conversation took place after the shooting and at a time when the police were attempting to persuade Mr Harding to cooperate, informing him of the serious threat posed by the Bandidos who would be seeking revenge.

Although this conversation took place in the context of the police warning Mr Harding about the risks in custody and assuring him of his safety in the event that he cooperated with police, Detective Lovell’s description of the Bandidos is chilling: “the Bandidos don’t forget. They will seek revenge, you know and they will wait years… so yes, you and everyone else are at, in my opinion, extreme risk”.

This is not a case where I can sentence the offenders on the basis that they genuinely believed that they had to do what they did to protect themselves and others. However, I reject the notion that they were motivated simply by a desire to ensure the continuing existence of the GB and that Mr Woods was driven by an ambition to expand the Club and become national President. The offenders were concerned about the ongoing intimidation and violence perpetrated against them and their associates. They were motivated by a desire to put an end to the intimidation and violence and were prepared to use significant violence to achieve that objective.

How then do these findings impact upon the sentencing exercise? Having found that each offender was genuinely concerned for his safety and was motivated by a desire to put an end to the intimidation and violence perpetrated against him and/or his associates, by the Bandidos, the objective seriousness of the offence is reduced. The circumstances here can be distinguished from a case involving a turf war between two outlaw motorcycle clubs, or a case where two groups have engaged in tit-for-tat violence escalating to a point where somebody is killed. On the contrary, here the intimidation and violence was all one-way up until 12 and 13 January 2020.

This does not mean that the use of violence by the offenders can be excused or condoned. The fact that they took matters into their own hands and perpetrated significant violence, must be denounced. The motivation of the offenders does however operate to reduce the objective seriousness of the offence.

Insofar as provocation has been raised as a mitigating factor, I must proceed with some caution. Having already had full regard to the history of intimidation and violence perpetrated by the Bandidos as relevant to the motivation of the offenders and therefore relevant to the assessment of objective seriousness, I am not persuaded that I should give the same material (except for one incident) additional weight in mitigation.

The one incident which does constitute provocation as a matter in mitigation in each case, is the intimidation of Mr Harding and Ms Clarke, and the assault upon Mr Harding, on 11 January 2020. This confrontation was captured on CCTV footage. That footage was played during the trial. It revealed the extent of intimidatory conduct perpetrated by members and associates of the Bandidos at Mr Harding’s workplace. Several Bandidos, and/or their associates, were present. They were clearly there in numbers to intimidate Mr Harding. He was assaulted and chased. This incident was proximate to the shooting, constituting a final act of violence by the Bandidos.

I have dealt with the topic of motivation before assessing the objective seriousness of the offence, because it is one of the topics in dispute. To be clear I find that the offenders’ motivation operates to reduce the objective seriousness of the offence.

I now turn to address the objective seriousness of the offence more fully and make findings about the role of each offender.

At the forefront of an assessment of the objective gravity of the offence is the fact that there has been a taking of human life with either an intent to kill or an intent to inflict grievous bodily harm: R v Williams [2005] NSWCCA 99 at [44].

Assessing objective gravity by reference to matters personal to an offender has been described as a “vexing issue for sentencing judges”: R v Eaton [2023] NSWCCA 125 (“Eaton”) per Hamill J at [45].

Objective seriousness and moral culpability are separate but related concepts. Matters personal to an offender may impact on an assessment of objective seriousness where they are casually connected to the offending: DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [71], [77].

All offenders are equally liable for all of the acts done in the course of carrying out the enterprise. However, each participant’s level of culpability is to be assessed by reference to their conduct: Lowe v The Queen (1984) 154 CLR 606 at 609; [1984] HCA 46. In Martinez v R [2022] NSWCCA 12 at [50] per Beech-Jones CJ at CL (as his Honour then was) stated at [50]:

When I sentenced NH, I concluded that he participated in a joint criminal enterprise to shoot the deceased with an intention to kill him. Here, I am sentencing these offenders on the basis of a joint criminal enterprise to shoot the deceased with an intention to cause him grievous bodily harm. An intent to kill is a consideration generally tending to greater objective seriousness than an intention to inflict grievous bodily harm: Charbaji v R [2019] NSWCCA 28 at [180]; Versluys v R [2008] NSWCCA 76 at [32]. Much will depend, however, on the nature and circumstances of the offending.

Here, there was a level of planning which included preparation undertaken on the night of 13 January 2020. Firearms were cleaned both internally and externally. Three cars were used to convey people to a staging area where final arrangements were made.

However, I am not satisfied that the planning constitutes an aggravating factor. I am not persuaded that the subject firearms, at the time they were sourced, were provided to the group in furtherance of the joint criminal enterprise. I am not persuaded that the joint criminal enterprise was formed before 12 January 2020. Furthermore, the execution of the plan to shoot the deceased with an intention to inflict upon him grievous bodily was not highly sophisticated, as evidenced by the accidental discharge of the .22 rifle, not once, but twice.

This is however, a serious example of murder. I have had regard to the use of weapons and the fact that the offence was committed in the home of the victim whilst he was lying in his bed, helpless, as aggravating factors.

Although the assessment of objective seriousness of an offence is an essential element of the process of instinctive synthesis, there is no obligation or requirement for a sentencing judge to nominate a point on the scale of seriousness by reference to a notional midpoint. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range”, or just below or above “the middle of the range”, add nothing of value to the process of instinctive synthesis in the determination of the proportionate sentence: DH v R [2022] NSWCCA 200 at [59]-[60]; Kochai v R [2023] NSWCCA 116 at [51]; R v Walker [2023] NSWCCA 219 at [55].

That said, some of the submissions in this matter were couched in terminology such as “middle of the range of objective seriousness” or “above the middle of the range”. Although not required to do so, in deference to the written and oral submissions of counsel, I conclude that the offence falls at the middle of the range of objective seriousness. In making that finding, I have had regard to several factors which include the following:

I am conscious that the finding of objective seriousness (mid-range) is lower than the finding of objective seriousness in the case of NH (above the middle of the range). The primary distinguishing factor is that here I am satisfied that the offenders were genuinely scared and feared for their safety as a result of the Bandidos intimidation and violence. In the case of NH, I found that he participated in the offence as a result of misguided loyalty to the GB, which was not a mitigating factor.

I turn to consider the role of each offender. The sixth topic of contention is whether the Crown has established beyond reasonable doubt that Mr Woods and Mr Hayes were the architects and organisers. A separate, but related issue, is whether the Crown has established beyond reasonable doubt that Mr Hayes sourced the firearms. I will deal with these disputes in due course but will commence with the role of Mr McLachlan, Mr Harding and Mr Farnsworth.

Mr McLachlan, Mr Harding and Mr Farnsworth, were, at all times, following the directions and instructions of others. They had no decision-making role to play. They were not responsible for sourcing the firearms. They were swept up in the joint criminal enterprise from 12 January 2020, after Mr Harding was assaulted and the assault was reported to police.

Although Mr Harding admitted burning the Yaris after the shooting, he did not instigate the plan to do so. I am satisfied that even in this task he was following instructions.

I am also satisfied that Mr Harding, when he attended the deceased’s home, was armed with the .22 rifle and not the sawn-off shotgun. It was Mr Harding who accidentally discharged the rifle twice. On at least one of those occasions, Mr Harding was in the vicinity of the farm gate. Sergeant Dusting gave evidence about the material which might be left when the shot gun is fired. A typical shotgun round has, amongst other things, undershot wadding, pallets and overshot wadding.

Sergeant Dusting agreed that the physical evidence in the deceased’s bedroom was consistent with only one shotgun shell having been fired in the bedroom. He gave evidence that when a 12-gauge shotgun is fired, the pellets might be expected to travel 200 metres or so. However, he gave evidence that one would expect the undershot to travel about 7 metres only.

By contrast, when a .22 calibre rifle is fired, one would expect the bullet to travel as far as two kilometres or more. There was no suggestion that .22 calibre bullets contained the sort of wadding about which evidence was given in relation to the shotgun shells.

Sergeant Roberts, a Crime Scene Officer, gave evidence that a thorough search was made of the house and the surrounding property, including a search of the area around the front gate of the property. No police officer reported the finding of anything consistent with a fired cartridge case or wadding around the front gate of the property.

I accept that the search was thorough and that the absence of fired shotgun cartridges, pellets or wadding, in the location where Mr Harding accidentally discharged the firearm, supports the contention that he was armed with the .22 calibre rifle.

With respect to Mr McLachlan, his physical and social media presence was minimal in the period leading up to 13 January 2020. He was aware of the messages posted by others and alive to the escalating tensions. However, he, like Mr Harding, made a minimal contribution to the social media posts. I accept that Mr McLachlan had a close friendship with Mr Hayes, but his employment meant that he was often travelling out of the area.

Mr Farnsworth had a greater presence on the social media platform. His responses to messages posted by others about the escalating conflict were more graphic and enthusiastic. However, I have formed the view that his Facebook messages are more demonstrative of bravado and bluster than a principal role in the joint criminal enterprise.

An apt description of each of these offender’s roles is one of a “minion”, following instructions rather than taking the initiative. When sentencing NH, I made a finding that he was a “follower or underling”. I concluded that his role could also be described as a “minion”.

I am satisfied that the role of Mr McLachlan, Mr Harding and Mr Farnsworth is less than that of NH. Although NH was a follower or underling, he was clearly leading the charge once the men arrived at the deceased’s home. By his own admission, he kicked open the deceased’s bedroom door. By his own admission he stood at the location within the doorway from which it is very likely that the firearm was discharged.

Sometime after the shooting, NH was captured on listening device product saying: “mate, mate, you know, not my first rodeo, but I could tell it was theirs”; “-and I marched them back in there” and, “…fucken had to do it and then just fucken, yeah”.

The evidence points to NH performing a more serious role in the events as they unfolded in the home of the deceased, In making this distinction between the role of NH on the one hand and of Mr McLachlan, Mr Harding and Mr Farnsworth, on the other, I have not had regard to the likelihood, based on the evidence in this trial, that NH was the shooter. That was not the basis upon which he was sentenced.

To be clear, although NH, Mr McLachlan, Mr Harding and Mr Farnsworth, played subordinate roles, NH was clearly in control and led the charge at the scene of the crime.

The Crown contends that Mr Woods and Mr Hayes were the architects and instigators of the joint criminal enterprise and occupied more serious roles than the other offenders.

Ms Betts, on behalf of Mr Woods, argued that far from establishing that her client was a principal, his only involvement was to provide a false alibi for the co-offenders. I reject that submission. Notwithstanding the forceful submissions made on behalf of Mr Woods, I am satisfied that the Crown has established beyond reasonable doubt that he was the architect and instigator of the plan that the group attend the deceased’s house, armed with firearms, with an intention to inflict at least grievous bodily harm upon the deceased.

Mr Woods was the President of the GB. Some of the Facebook messages posted by Mr Woods clearly demonstrate that he was in a position of leadership. It was to Mr Woods that the GB patches were handed in. It was with Mr Woods that Mr Harding, Ms Clarke and Mr McLachlan sought refuge.

Although the GB was not an outlaw motorcycle club, there was an acknowledged hierarchy with several office bearers, including Mr Woods as President.

It was to Mr Woods’ house that the firearms were brought, and preparations were made on 13 January 2020. This was no accident. The fact that Mr Woods did not attend the deceased’s home does not support the contention that he played a lesser role that his co-offenders. His absence at the deceased’s house is entirely consistent with someone who occupied a senior role, sending out his “minions” to undertake the task at hand.

It follows that I am satisfied that Mr Woods played a more significant role in the offence.

Mr Hayes disputes the allegation that he was responsible for sourcing the firearms. It is incumbent upon me to resolve this dispute before I make a finding as to his role in the offence.

The Crown case is that there was a group of eight firearms that Mr Hayes supplied and were sourced by him from a person called “Rob”. Four firearms were taken to the deceased’s property, namely the Franchi self-loading shotgun, which was the murder weapon, two other shotguns and the .22 rifle. Seven of the firearms ended up in a storage container belonging to Trent Struik. Parts of the Franchi firearm were later recovered. With respect to the Franchi firearm, I accept that Mr McLachlan disposed of it by first hiding it and then dismantling it into pieces.

I accept that Mr Hayes sourced the firearms for the following reasons.

Firstly, the offender was captured on telephone intercept on 25 April 2020 contacting Mr Harding to meet up with him:

Ms Clarke gave evidence of a conversation during which Mr Hayes said he wanted his guns back and was having trouble getting through to Mr Woods. Relevantly, Ms Clarke’s evidence was:

Secondly, listening device from 25 April 2020 contains a partially recorded conversation between Mr Hayes and Mr Woods. Mr Hayes was agitated and was seeking the return of the “autoclave”, a reference to the Franchi self-loading shotgun.

Mr Hayes is captured on the same listening device telling Timothy Lamont about his conversation with Mr Woods which related to the return of the firearms. Mr Lamont asked Mr Hayes what Mr Woods was “spinning out about”. Mr Hayes responded:

Thirdly, surveillance device product capturing a conversation on 23 May 2020 revealed that Mr Hayes was able to retrieve seven of the firearms, commenting on their poor condition.

Fourthly, on 27 May 2020, further listening device recordings of Mr Hayes, NH and Mr Struik captured the men talking about police conducting unrelated raids in the area and Mr Hayes indicated that he wanted to get rid of “them”. Mr Struik suggested that he could store them in his container in town. The exchange is as follows:

Fiftly, Mr Hayes required payment from Mr Struik, when it was discovered that the firearms were missing from the storage container. By this time the police had located and seized the firearms. The demand for payment by Mr Hayes is consistent with him being the person who sourced the firearms and who was responsible for their return. Optical surveillance device from Menace Ink recorded Mr Struik providing cash to Mr Hayes.

In addition to sourcing the firearms for Mr Woods, I am satisfied that Mr Hayes gave a number of instructions to members of the group on the evening of 13 January 2020. He drove to the “staging area” and met with the co-offenders there. Mr Hayes also picked up members of the group after the Yaris was burnt out.

The Crown has established beyond reasonable doubt that Mr Woods and Mr Hayes were the architects and organisers of the plan to shoot the deceased with at least an intention to inflict grievous bodily harm. Although the planning was not extensive and execution of the plan was not sophisticated, some effort was taken in the preparations on the evening of 13 January 2020.

Mr McLachlan, Mr Harding, and Mr Farnsworth followed instructions to execute the joint criminal enterprise. They did not have a decision-making role to play. They were party to an agreement to shoot the deceased with an intention to inflict grievous bodily harm upon him but were not in control of the events that took place in the deceased’s home, instead following the charge of NH.

I turn to consider the subjective case relevant to each offender.

The offender’s background is before me primarily by way of a report prepared by Dr Olav Nielssen, dated 19 March 2024; affidavit of Michelle Woods; affidavit of Kathryn Woods; affidavit of Michael Warren Herd; affidavit of David Wilkins; affidavit of Skye Lang; affidavit of Susan Beatrice Thistlethwaite; letter from Correctional Officer Daniel Bove; Remand EQUIPS letter of attendance; Justice Health; and Corrective Services records. The contents of those documents can be summarised as follows.

The offender grew up in Port Macquarie. He has one sister. His mother and father separated when he was five years of age and he has not had a relationship with his father since. He met him once as an adult by chance. His father was violent towards him. His mother confirmed that her son was regularly beaten by his father and on one occasion was thrown across the room and required medical treatment at hospital, but his father prevented his mother from taking him. The violence became so extreme, that his mother moved him and his sister to live with his grandparents in a shed beside their property. His mother was in several abusive relationships until she met the offender’s stepfather. However, his stepfather’s increased substance use strained his relationship with his mother.

After leaving school Mr Woods worked in construction, pipelaying and industrial cleaning. Working helped him overcome his mental health issues. He has been a tattooist since the age of 17. He worked in tattoo parlours in Orange, Mount Isa and Port Macquarie. On one occasion his shop was damaged by fire and he and his partner were assaulted.

In the lead up to the offence, he was employed as a tattoo artist at Menace Ink in Wellington and was the President of the GB. He was in a long-term relationship with his partner for 14 years. He has one daughter, aged 9.

The offender reported to Dr Nielssen that he was a victim of sexual abuse as a child. He believes that he was abused by one of his mother’s partners at the age of 10 or 11 as he remembers waking up without his pyjama bottoms. His sister reported being sexually assaulted by the same partner. He was also sexually abused on three occasions by a babysitter, who was charged over a similar conduct.

The Crown challenged the account given by Mr Woods about his childhood sexual abuse. Michelle Woods gave evidence about the sexual abuse experienced by Mr Woods. She said that her partner at the time Kerry “sexually assaulted my daughter and interfered with Phillip, leaving him without pyjama pants and covering him in lipstick.” She also gave evidence that “he was sexually abused by the babysitter who lived next door three times” and “would touch Phillip’s genitals while he was in bed for the night.”

She was cross-examined by the Crown in relation to the account of sexual abuse perpetrated by one of the two boys who lived next door.

She gave evidence that her son had complained as follows:

Mr Woods told his mother that the “older boy” had touched him “on his balls”. He also complained that this conduct had taken place on three occasions. After the complaint, Mrs Woods spoke to the boy’s mother, but no further action was taken.

In relation to the account that he was sexually abused by his mother’s partner Kerry, Ms Woods gave evidence that on an occasion she came home to find her son with lipstick on his face. She asked him what happened, and he said “Im scared. Kerry pulled my pants down and put lipstick on my face. I don’t know what to do”. Ms Woods also gave evidence that her son told her that Kerry had “pulled my pants down and he was playing with my doodle”.

The offender’s sister Katherine Woods was also cross-examined during the sentencing proceedings. In her affidavit, she referred to her brother being sexually abused. During her cross-examination she confirmed that the man Kerry, who had sexually abused her, had also sexually abused her brother. She did not ask her brother how he had been sexually abused. Ms Woods gave evidence that on an occasion she heard her mother “asking Phillip why he had makeup all over him”. She heard her brother crying and observed that he was upset. She then heard her mother ask him “where are your pants?”. She heard her brother become “hysterical”. Her evidence corroborates the evidence of Mrs Woods about the complaint made by the offender.

Having observed both witnesses give evidence, I find that they are both honest and reliable in their accounts. The trauma caused by these historical events continued to manifest in the demeanour of each witness when they gave evidence in these proceedings.

I accept that the complaint was made by the offender to his mother in the terms she gave evidence about. The complaint and the demeanour of the offender when making the complaint to his mother (appreciating that he was a young child at the time) is consistent with the events having occurred.

I am satisfied on a balance of probabilities that Mr Woods was the victim of sexual abuse in the way reported to Dr Nielssen. The evidence establishes a background of disadvantage and deprivation which includes the offender’s exposure to domestic and family violence and being the victim of sexual abuse as a child.

One of the bodies of research referred to in the Bugmy Bar Book is the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Commission explained:

The offender’s background of disadvantage is not limited to physical and sexual abuse. He commenced using illicit substances when he was a child. The offender has a long-standing substance abuse problem. He was introduced to cannabis at the age of 16. He also reported using hallucinogens, including LSD, DMT and psilocybin. In the period leading up to the offence, he was using both cannabis and amphetamines.

Dr Nielssen opined that the offender has a substance use disorder in long term remission. He further noted that his extensive drug use is a factor contributing to his chronic depressed mood, and his conviction for possession of cannabis and implements in Queensland.

Since being on remand, the offender has participated in and completed the Remand Addictions Program.

Dr Nielssen opined that the offender meets the criteria for persistent depressive illness. His childhood was impacted by his father’s violence, his mother’s history of dating abusive partners and being extremely poor. He was sexually abused by one of his mother’s partners and a babysitter. He reported longstanding anxiety symptoms and depressed mood. He has been treated with antidepressant medication in custody.

Dr Nielssen remarked on that history as follows:

Dr Nielssen outlined a causal link between the offender’s offending and his mental health condition. He opined:

I am not persuaded that Mr Woods’ anxiety disorder materially contributed to the commission of the offence. The circumstances of the offending which included some planning, do not sit comfortably with a conclusion that there is a causal link between the offender’s mental health and the way in which the joint criminal enterprise was executed. His response to the violence perpetrated by the Bandidos was not attended by anxiety or impulsivity. There was a degree of deliberation and planning (not an aggravating factor) associated with that response.

However, I find that Mr Woods’ background of deprivation and disadvantage reduces his moral culpability. His background, marred as it was by violence, isolation and victimisation, provides a telling context for taking up a leadership position in a small organisation which provided him with a sense of identity and belonging. From a very young age he was exposed to a dysfunctional household where he was exposed to family and domestic violence, and where he was neglected and abused by his mother’s partners. He grew up in a household where he did not have, any positive role models. He was isolated. Coming from that background to adulthood, he collected around him a group of people who provided him with a sense of identity and belonging that was absent in his formative years. That background goes some way to explaining the way in which he decided to deal with the threat and violence by the Bandidos, and his determination to bring an end to it by using extreme violent measures.

The offender has shown no remorse for the offence. The offender is not to be penalised for pleading not guilty and running his trial. Nor is he to be penalised for maintaining his innocence. However, the absence of remorse is a matter relevant to a consideration of his prospects of rehabilitation.

Dr Nielssen opined that it is difficult to predict the offender’s future behaviour in terms of risk. This is undoubtedly as a result of the fact that the offender will be spending many years in custody. The offender has a criminal history in New South Wales for assault occasioning actual bodily harm and in Queensland for possession of cannabis. However, his criminal history is not extensive and does not operate adversely upon the assessment of his future prospects of rehabilitation.

Although the offender’s substance abuse disorder is a risk factor, it is in long term remission. The offender’s age places him at a lower rate of re-offending.

Corrective Service Records confirm the many transfers the offender was subject to upon entering custody. The offender was engaged in work whilst in custody including working as a sweeper. This is confirmed by a letter provided by a Correctional Officer at Metropolitan Remand and Reception Centre (“MRRC”). The offender is regarded “as a trusted inmate” and this officer “will not hesitate to have him as an inmate sweeper (worker) in any capacity.” He further noted that the offender “has always acted with maturity and respect to all staff and other inmates and his attention to detail and pride that he has taken in his role is admirable”.

The offender has the support of his mother and sister, with whom he has a close relationship. The offender is also devoted to his daughter. His sister describes the offender as an empathetic person who is always helping those in need and that the “underworld side of things is not who he is…his daughter was always his number one priority”.

The support provided to the offender from members of his family, his positive progress in custody, his limited criminal history and reduced criminogenic factors, warrant a finding that he has good prospects of rehabilitation and is unlikely to reoffend.

The offender has been in custody for approximately three and a half years. Department of Justice Records and the offender’s handwritten records reveal that up until 2022, the offender spent a very significant proportion of his custody in lockdown, prolonged quarantine and segregation due to COVID-19.

In R v Tangi (No 12) [2020] NSWSC 547, Rothman J recognised the impact of COVID-19 on offenders in custody at [57]–[58]:

In McKinnon v R [2020] NSWCCA 106 at [32], per Payne JA (Beech-Jones (as his Honour then was) and N Adams JJ agreeing)) it was held that the more onerous conditions of incarceration due to the pandemic nonetheless should be taken into account in sentencing: Scott v R [2020] NSWCCA 81 (“Scott”). In Scott at [166] (per Hamill J (Brereton JA and Fagan J agreeing) the Court noted that the suspension of social and family visits was a factor that is considered on sentence:

In Moodie v R [2020] NSWCCA 160 at [144], Bell P ((as his Honour then was) Davies and N Adams JJ agreeing) stated that impacts of COVID-19 should be considered on sentence, but they should not be overstated or necessarily extrapolated:

Justice Health & Forensic Mental Health Network records confirm that in 2023 the offender presented at the main clinic and advised the nurse that he was assaulted. No injuries were identified. Dr Nielssen opined that the offender’s continued fear for his safety will further exacerbate his mental health whilst in custody.

I have had regard to the hardship experienced by the offender resulting from the additional restrictions imposed during the COVID-19 pandemic. Going forward, conditions in custody will be more onerous given the real danger to the offender because of the nature of the offence and the identity of the deceased. I am also satisfied that the offender’s mental health will make conditions in custody more onerous.

I have had regard to hardship in custody in determining the length of the term of imprisonment and in finding special circumstances.

The offender’s background is before me primarily by way of two reports; one prepared by Consultant Psychiatrist, Associate Professor Michael Robertson dated 28 March 2022 and the other prepared by Dr Richard Furst dated 2 April 2024.

The offender was 21 years old at the time of the offending and is now 25. His father worked at the local council and was a member of the Rebels Motorcycle Group. His mother worked in disability care.

The offender’s family life was described as “mixed”. There were “some rough times” and he felt like “an outcast among his family”. He has two older brothers. His father was emotionally abusive when he consumed alcohol and was diagnosed with schizophrenia.

The offender grew up in Wellington and attended Wellington Public School and Wellington High School. He left before the end of Year 12 and did not complete his HSC. He had few friends and preferred to keep to himself at school.

The offender reported being a victim of sexual abuse in Year 4. He reported being sexually assaulted by his teacher on eight-nine occasions over a period of three months. The abuse continued until the end of the last term of Year 4.

The Crown submitted that I would give no weight (or very little weight) to the account of sexual abuse as it depends entirely on self-reporting by the offender. The complaint was made on 5 April 2023. There is no evidence that Mr Hayes contemporaneously reported the abuse.

The absence of corroborative material is unsurprising given the nature of the allegations and the period in which they are said to have taken place. It is a sad reality that many victims of sexual assault do not make a contemporaneous complaint about the abuse. There are numerous instances of complaints being made decades after the abuse. The fact that there is such delay does not necessarily mean that the account is fabricated or lacking in credibility.

True it is that the offender has not given evidence. The accounts of the abuse are contained in the report of Associate Professor Robertson, consultant psychiatrist, and the report of Dr Furst, forensic psychiatrist.

Mr Hayes reported to Associate Professor Robertson that he was sexually abused at the age of 10 by his teacher. His teacher initially groomed him, likely targeting him as he was socially awkward and shy. Mr Hayes reported that the abuse varied between violent aggression and perverse “romance”.

Mr Hayes told Dr Furst that he was sexually abused by his teacher over a period of three months, while attending Wellington Public School. He reported that the sexual abuse “destroyed his life” and he struggled forming relationships since. He avoided wearing his school uniform, skipping school and fighting with other students. He became extremely anxious and began having panic attacks in stressful situations. He continues to have daily nightmares of the sexual abuse. This impacted on the offender’s relationship with his friends and family. He felt “disconnected” and became increasingly oppositional.

The offender reported that engaging in sexual activity or intimacy made him feel anxious and distressed. The offender has also struggled with his sexual identity after being abused and found himself confused. The abuse has impacted on his relationships.

Mr Hayes experiences regular distressing and intrusive flashbacks of the sexual abuse, often precipitated by environmental cues such as the smell of Lynx deodorant, men wearing sandals or All Blacks paraphernalia. His abuser frequently wore such items to class.

He has experienced bursts of impulsive violence upon hearing sexual banter by other inmates or interacting with inmates that have a sexual offending history. Going to the toilet and showering in front of others makes him extremely anxious and self-conscious. He prefers to be in segregation.

Mr Hayes account of the impact of the sexual abuse upon him and the environmental cues that trigger him, has not been tested in cross-examination but is an account that rings true. Not only does he remember the items of clothing worn by his abuser but also the smell of the deodorant he used. I accept his account of sexual abuse as honest and reliable.

Mr Hayes reported he has no friendships, “cannot trust people”, is socially isolated and has no relationship with his extended family. The Executive Summary of the Royal Commission into Institutional Responses to Child Sexual Abuse, states that a:

The offender was consuming both drugs and alcohol at the age of 13. He has used cannabis, ice, cocaine and MDMA. In 2019 and 2020, including the period in which the offence took place, he was using 1-2 grams of cocaine per day. This helped him feel more confident. The offender also consumed alcohol to feel more comfortable in social settings.

The offender has a history of deliberate self-harm. The most recent was in December 2023 when he tried to overdose by taking a quantity of Panadol tablets.

A number of psychological tests were administered, the results of which indicate a diagnosis of complex post-traumatic stress disorder and substance abuse disorder. The offender presents with symptoms of high anxiety, nightmares, distress, suicidal thoughts and insecurity indicative of the long-term impact of childhood sexual abuse. The offender also presented with a reliance on drugs and alcohol.

Dr Furst opined:

The offender’s personality, informed as it by a childhood marred by sexual abuse, goes a long way to explaining social isolation and his use of illicit drugs to increase his confidence and ease his social anxiety. His association with the GB provided him with a sense of identity, interacting with a small group of people who provided a social fabric that was hitherto absent.

I am satisfied that the offender’s background of abuse, his related substance abuse issues, and his mental health condition, operate to reduce his moral culpability.

In reducing his moral culpability, I have also had regard to his relative youth at the time he committed the offence. He was 21 years old. I bear in mind that in sentencing young offenders, the sentencing principles make clear that retribution may be given less significance and considerations of rehabilitation may be of more significance: Tammer-Spence v R [2013] NSWCCA 297 at [36]; BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379 at [4]; KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[26].

The offender has been stressed and anxious whilst in custody. He continues to have flashbacks of the sexual abuse. He tries to keep himself occupied in custody through working in jobs such as a construction labourer and sweeper.

Dr Furst and Associate Professor Robertson both recommend that the offender engage in psychological and counselling treatment to address his substance abuse issues and childhood trauma.

Dr Furst further opined that a custodial sentence would be onerous on the offender due to his history of mental illness stating that:

The offender’s mental condition will make his conditions in custody more onerous, as will the danger to him posed by the nature of the offence and the identity of the deceased.

Mr Hayes has not expressed remorse for the offence. Associate Professor Robertson states that Mr Hayes has demonstrated a significant diminished amenity of life. He has not been capable of pursuing intimate partner relationships. His psychosocial development has been significantly disrupted. He has few friends. He is socially isolated and while he has demonstrated some work capacity, has clearly underachieved due to the effects of his chronic psychological disturbance. He has developed substance use problems. Associate Professor Robertson recommends intensive psychiatric and psychological treatment.

On the other hand, Mr Hayes is a person of prior good character. Dr Furst states that Mr Hayes appears motivated to address his clinical/criminogenic issues. He has worked as a sweeper at MRRC, Parklea and Junee. He has also worked as a construction labourer at Goulburn correctional facility, helping to build a new segregation unit. Dr Furst states that Mr Hayes appears to have reasonable prospects of being successfully rehabilitated. He will require assertive counselling and mental health treatment which will enhance his long-term rehabilitation process.

I am satisfied that Mr Hayes has reasonable prospects of rehabilitation and is unlikely to reoffend if he avails himself of treatment and counselling to address the trauma occasioned by his childhood abuse and the related substance abuse issues.

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Mr Schaudin submitted that the offender’s sentence should be reduced to reflect the procedural facilitation of justice resulting from the fact that there were “very few pre-trial arguments”, and a “sensible” and efficient disposition of the issues at trial.

I accept that each case was conducted in an efficient and “sensible” manner, focusing on the real issues during the trial. That is precisely the approach that is required of counsel in every criminal trial.

I am not persuaded that there should be a reduction in the penalty to reflect the facilitation of the administration of justice pursuant to s 22A of the CSPA. The trial was lengthy, proceeding over a period of approximately three months. A significant amount of resources and time was committed to the trial.

The offender’s subjective case is before me primarily by way of a report prepared by Dr Richard Furst, Consultant Forensic Psychiatrist, dated 14 March 2024; Justice Health records; Corrective Services Progress Notes from Psychologist, Fiona Innis; Corrective Services case notes; a letter from Dr Bruce Whitmill dated 8 March 2024; and four references each by Heather McLachlan dated 16 March 2024, Aileen Radburn dated 28 February 2024, Shane Cheetham dated 26 February 2024 and Debbie Priest dated 1 March 2024. The contents of those documents can be summarised as follows.

The offender is 35 years old. He is divorced and has four children. His eldest children were from his first relationship which lasted about four years. His other two children are from different partners. The offender has a sister who suffers from a physical and intellectual disability. His mother is her carer. His father also suffers from health problems.

Mr McLachlan was living in Orange and worked as an interstate truck driver and mechanic before his arrest. He was also in a relationship for about 6 months which has now ended.

As a child, he found it hard to focus and sit still in class. He was prescribed stimulant medication by his paediatrician. He was bullied until Year 10 when he started to fight back, and the bullying eventually stopped. The offender was a loner at school and often felt depressed. Notwithstanding these challenges he achieved high grades and completed Year 12.

Mr McLachlan reported a history of sexual abuse during his late primary school years. He did not report the abuse. The Crown submitted that I would give no weight (or very little weight) to the account of child sexual abuse. In support of that contention the Crown pointed to inconsistencies between the versions given by the offender about the abuse.

The Psychology Service Progress Notes, apparently authored by a psychologist at Bathurst Correctional Centre, record that the offender disclosed he was sexually assaulted by a classmate when he was in year 4 or 5. He also reported that when he was at High School, a teacher “threw him across the classroom”, an experience that caused him to have a problem with authority ever since.

The report of Dr Furst states that the offender reported enduring the trauma of been sexually abused on an ongoing basis in Year 5 and Year 6, including being anally raped and exchanging fellatio with the man abusing him, with the abuse taking place once or twice a week for about two years in his late primary school years. He also reported being assaulted by teachers on two occasions, claiming that on one occasion he was “thrown across the classroom”. On another occasion, while away on a camping trip, one of the teachers at the camp “shoved his dick in my mouth in the shower”.

There are significant inconsistencies in the accounts given about the alleged sexual abuse. Although an offender is not required to give evidence of such abuse before it is accepted on a balance of probabilities, the significant inconsistencies in accounts, is a matter about which I have some concern. I am unable to find, on a balance of probabilities, that the offender was the victim of sexual abuse as reported to Dr Furst. The account of being anally raped on a regular basis, for example, is not a matter that the offender disclosed to the author of the Psychology Service Progress Notes.

I accept that the offender was the victim of some physical abuse and bullying at school before he started fighting back in Year 10. I accept that he felt alone and dejected during those years. The offender also reported depressive symptoms and feelings of emptiness and loneliness towards the end of 2019 and into the beginning of 2020. He saw his GP around that time and was treated with medication. One of the main stressors around this time was a falling out with a close friend. It is in this context that he met his co-offenders. They took him in. They provided him with a sense of belonging.

Dr Furst concluded that the offender meets the DSM-5 TR criteria for the diagnosis of Recurrent Major Depressive Order and Attention Deficit Hyperactivity Disorder (“ADHD”). He opined that the offender’s:

The diagnosis of major depressive disorder appears to be made, at least in part, on the basis that the offender did experience childhood sexual abuse. I must therefore be careful about relying upon Dr Furst’s diagnosis in that regard. I accept the diagnosis of ADHD.

Apart from Dr Furst’s diagnosis, there is other evidence which satisfies me that the offender does suffer from anxiety. Whilst in custody the offender has suffered from high levels of anxiety. He was prescribed antidepressant medication in 2021. He has not seen any psychiatrist or mental health nurse in the last 12 months and is currently on the waiting list.

Other than smoking cannabis after a relationship breakdown, the offender has no history of substance abuse, heavy drinking, or gambling problems.

The offender’s background does not disclose deprivation and disadvantage such that his moral culpability is reduced. Although he faced some challenges during his formative years (matters that I have taken into account in his subjective case), he achieved high grades and was able to engage in employment. He does not have substance abuse issues and I accept he is an intelligent and resourceful individual.

Although this offender’s background is not such as to reduce his moral culpability, there are other subjective factors that operate in his favour, including that he has very good prospects of rehabilitation and he is unlikely to re-offend. These matters will be addressed below.

This is the offender’s first time in custody. Case note reports from Corrective Services indicate that the offender is well-mannered, respectful, and polite. Upon his entry he was placed in a segregation cell for assessment of risk and ongoing placement. He has spent a significant portion of custody in administrative segregation or non-association. He was moved on at least ten occasions, between coming into Corrective Services’ custody in October 2020 and moving to the High Risk Management Unit on 1 July 2021. He reported that he received Corrective Service intel that there was a “hit” on him because the deceased was the President of the Bandidos.

In 2021, the offender participated in the EQUIPS program. He found this to be of no assistance for his stress and anxiety. The offender finds himself constantly worried that he may be attacked by other inmates.

Records from the Justice Health and Forensic Mental Health Unit demonstrate that the offender has made attempts to address his mental health in custody seeking medication and being placed under the care of mental health nurses and a psychologist working for Justice Health.

His father’s ongoing health problems and his sister’s disability has caused him great stress and have made him feel guilty about not being there to help his family. A letter from Dr Whitmill confirms that the offender’s sister is wheelchair bound. The offender has had limited contact with his family whilst in custody due to his classification and the restrictions imposed during the COVID-19 pandemic. His children have only visited him once and it has been difficult for him as he has missed out on them growing up.

I accept that the offender has spent periods in custody where significant additional restrictions applied as a result of the COVID-19 pandemic. I also accept that there are a number of emotional and psychological stressors that will make the conditions of custody more onerous. The offender is also at risk in custody due to the nature of the offence and the identity of the deceased.

The hardship in custody is relevant in two ways. Firstly, I have had regard to hardship in custody in determining the length of the term of imprisonment and, secondly, in finding special circumstances.

The offender has not demonstrated remorse. However, in assessing the offender’s prospects of rehabilitation I have had regard to several factors including the opinion expressed by Dr Furst, that:

The offender has no criminal record, no history of addiction, he has strong family ties and support and good employment prospects. The offender is considered a hard worker by his family and friends and is always willing to help. It is clear that the offender played a pivotal role in providing care and support in his family unit. He assisted his parents in providing care for his sister and did maintenance work around the family home, and also provided financial assistance. His risk of reoffending is assessed as relatively low. I accept that he has very good prospects of rehabilitation and is unlikely to reoffend.

Mr Harding’s subjective case is before me primarily by way of a report prepared by Dr Nielssen, Forensic Psychiatrist, dated 7 March 2024; Corrective Services case notes; case management file extracts; lock-in records; Justice Health Records and the affidavits of Debbie-Jean Clarke dated 26 March 2024 and Rosalind Louise Mudajienga dated 28 March 2024. The contents of those documents can be summarised as follows.

The offender is 43 years old and was 39 years old at the time of the offence. He is one of six children. The offender had a “rough childhood”. He was physically abused by his biological father and physically and emotionally abused by his stepfather. His family frequently moved, and he attended a range of schools in different states. He left school at Year 8.

At the age of 14, he left home and lived in both refuges and on the streets. Mr Harding reported being depressed since childhood. He began using cannabis at the very early age of 12 and has continued to use that drug for most of his adult life. He stopped using cannabis when he was diagnosed with throat cancer at the age of 40.

Before his arrest the offender was working as a commercial cleaner. The offender has always worked, with his employment history including working as a car detailer, a window cleaner, a delivery driver, and a seasonal farm labourer.

Mr Harding and his partner Debbie-Jean Clarke have been together for 25 years, since Ms Clarke was 18 years old. They have a child together who is now 24 years old. They have two grandchildren.

The offender reported being depressed since childhood “right up to even now.” He has attempted suicide several times. He has previously been prescribed antidepressants to treat his depression. The offender reported that his symptoms include having difficulty sleeping, being anxious, irritable, unmotivated and changes in his appetite. The offender suffers from persistent depressive illness in relative remission. Dr Nielssen opined:

Dr Nielssen further noted that his mental health issues were a major factor in associating himself with members of the GB. A recurrent theme in the sentencing proceedings, is the way in which the offenders were drawn together, finding a sense of belonging and identity through the GB.

Mr Harding’s background of deprivation and disadvantage together with his mental health issues, operate to reduce his moral culpability.

The offender’s time on remand has included periods in isolation and restrictions on in-person visits. He was placed in isolation for weeks at the time of his arrest. His partner visited him 6-12 months after he entered custody. His partner confirmed that there were numerous restrictions on visiting and it became difficult to schedule audio-visual link sessions. His son is currently struggling to come to terms with his father’s incarceration and is not ready to visit his father.

Justice Health Records indicate that the offender requested on 20 December 2022 that he be placed in Special Management Area Placement for his protection and safety. The offender was also admitted to the Prince of Wales Hospital on 23 January 2024 for an elective reconstruction surgery of his left knee and was discharged on 24 January 2024.

The offender has reported to staff members that he is experiencing suicidal thoughts while in custody. This is confirmed by Justice Health Records.

However, he indicated that he could use work and engagement with others to create feelings of purpose and achievement whilst in custody. He spends his time in custody speaking to his partner regularly, reading, and playing cards.

I have had regard to the time that Mr Harding spent in custody during the COVID-19 pandemic in the way outlined above. I find that the nature of the offending and the identity of the deceased means that there is a real risk to the offender whilst in custody. Furthermore, I am satisfied that his mental health issues will make conditions in custody more onerous. Hardship in custody, is also matter that I take into account in determining the appropriate penalty and in finding special circumstances.

Case Note Reports from Corrective Services demonstrate that the offender has spent his time in custody working in the laundry and has completed the Health Survival Tips program. The offender has a limited criminal history. He has the continuing support of his partner who attended court on multiple days to support him.

I am satisfied that Mr Harding has demonstrated some contrition. He assisted the police in their investigations, including taking them to a location where ammunition was located. I am satisfied that Mr Harding has good prospects of rehabilitation and is unlikely to reoffend.

The offender’s subjective case is before me primarily by way of a report prepared by Julie Dombrowski dated 26 March 2024; three letters, prepared by the offender, his parents, and his partner; and a Case Conference Certificate. The contents of those documents can be summarised as follows.

The offender was 34 years old when he committed the offence. He is now aged 39. Mr Farnsworth was adopted when he was six weeks old. He has one older brother. He grew up living in Campbelltown and then moved to regional NSW as a teenager. Growing up he lived in a loving and supportive household. At the age of 17 he left home to pursue work opportunities. He maintains regular contact with both his adoptive parents. He is aware of the impact that his offending has had on them and acknowledged that “I know I shattered them”.

Although his adoptive parents provided him with a supportive and loving home life, the offender found it difficult to form friendships during his childhood. He was alienated, assaulted, and bullied at school. He had no prosocial peers. The offender attended five different schools until Year 10. He was regularly suspended and expelled due to having, what are described as., out of control episodes of anger, fighting with other students and threatening teachers. He struggled to develop his literacy skills and would usually receive “below average” grades.

The offender has never been diagnosed with a developmental or learning disorder. However, his parents confirmed that he “had trouble expressing himself” and “couldn’t articulate what he wanted because he couldn’t find the words to ask”. He never received a formal diagnosis despite his parents taking him to the doctors. He had “no fine motor skills” and had difficulty playing sport. He was diagnosed with obesity at a young age and was often bullied and nicknamed “Belly”.

He started working at the age of 17. He worked as a labourer, factory hand and farmhand. He has maintained regular employment and has never been terminated.

His parents give an account of the offender, as a child, going out of his way to find friends and be accepted within friendship groups. He was easily led and had little capacity to be discerning about the people he was associating with. He was described as a child who always wanted to do anything to please others.

This account of the offender’s disposition during childhood is entirely consistent with his own description about “feeling a sense of belonging and brotherhood” when he was introduced to members of the GB.

Several tests were administered revealing that the offender met the criteria for emotional and behavioural dysfunction and difficulties with interpersonal functioning. The offender’s behavioural dysfunction is related to his antisocial behaviour, substance abuse and behavioural issues as a child.

Ms Dombrowski opined:

The offender spent an entire childhood feeling chronically socially alienated, finally finding a sense of belonging and acceptance that he strongly craved when he became acquainted with the members of the GB. The offender’s childhood experiences, which resulted in an anxious/avoidant personality style, explains, in a meaningful way, the context in which he bonded and interacted with members of the GB. It also contextualises his willingness to go along with the joint criminal enterprise and gives support to the finding that he was a “minion”, participating at the direction of others.

The offender’s background and the interplay between that background and his offending conduct, is a matter I have taken into account in reducing his moral culpability.

In early adolescence, the offender commenced using cannabis to help him sleep. He also engaged in binge drinking. He reported consuming 24 pre-mixed cans of rum daily and found himself involved in physical altercations. He eventually ceased consuming alcohol as he became tired of feeling angry when he was intoxicated.

The offender was diagnosed with depression in his early twenties, after a relationship breakdown and was prescribed antidepressant medication. The medication assisted in stabilising his mood.

He has recently been diagnosed with coeliac’s disease, high blood pressure and early stage diabetes.

Ms Dombrowski concluded that the offender’s risk of reoffending is “low-moderate”. He is therefore unlikely to meet the inclusion criteria for any high intensity criminogenic treatment programs for violent offenders in prison. However, he would benefit from engaging in and completing the EQUIPS Foundations, Aggression and Maintenance program which will assist him in exploring the factors that underpinned his offending conduct and will improve his emotional regulation skills. Ms Dombrowski notes that the offender’s early developmental difficulties may be indicative of a serious neurodevelopmental condition. However, there has been no neurological testing and I am unable to find that Mr Farnsworth suffers from Fetal Alcohol Spectrum Disorder or a learning disability.

I am satisfied, having regard to the offender’s letter to the Court that he is remorseful and has acknowledged his wrongdoing. He has a limited criminal record and is assessed as a low-moderate risk of reoffending. The offender also has the continued support of his parents. I am satisfied that he has good prospects of rehabilitation and is unlikely to reoffend.

Given the nature of the offence and the identity of the deceased, I am satisfied that the offender will face more onerous conditions in custody. His incarceration brings with it the risk of reprisal by the Bandidos as Detective Lovell said during his evidence; “the Bandidos don’t forget”.

I have taken into account hardship in custody in determining the appropriate sentence and in finding special circumstances.

The Crown submitted that this is an example of the offence of murder that calls for the imposition of the maximum penalty, namely, life imprisonment in the case of Mr Woods, Mr Hayes and Mr McLachlan, in the event that I find that Mr McLachlan was the shooter.

Having found that Mr McLachlan was not the shooter, the Crown does not press for a life sentence in his case. Although the Crown submitted that it is open to impose a life sentence in the case of Mr Woods and Mr Hayes, the Crown also acknowledged that there may be reasons to decline to do so.

Section 61(1) of the CSPA relevantly provides:

The proper approach to s 61(1) of the CSPA was considered in Rogerson v R; McNamara v R [2021] NSWCCA 160. The Court noted, at [634], that:

In written submissions, the Crown contends that Mr Woods and Mr Hayes orchestrated a well-planned and deliberate killing of an unarmed man in his bed and the motive was the continued existence of the GB. Mr Woods’ was the President of the GB and held ambitions to become national President. He manipulated other GB members to carry out the murder while he remained at home. Mr Hayes’ motivation was the continued existence of the GB, with which he was closely associated with and his personal animosity towards the deceased.

Ms Betts, on behalf of the offender Mr Woods, submitted that the offender’s only role in the offence was to provide a false alibi for his co-offenders and is not a case for a life sentence. In addition, the offender relies upon his subjective case of depression, substance use and sexual and physical abuse.

Mr Schaudin, on behalf of the offender Mr Hayes submitted that the objective seriousness does not fall within the worst category and due to his age and his subjective factors, the offender’s moral culpability should be reduced.

I have set out at some length my findings with respect to the various matters that were in dispute. Although I am satisfied that Mr Woods and Mr Hayes played primary roles in the joint criminal enterprise, I am not satisfied that the planning was extensive nor was the execution of the plan sophisticated.

Importantly, I am of the view that all offenders, including Mr Woods and Mr Hayes, were motivated by a genuine concern about their safety and that of their families and associates. GB members and associates were the victims of intimidation and violence perpetrated by Bandidos at the direction of the deceased. The GB did not engage in tit-for-tat violence in the months leading up to 13 January 2020. They did however engage in grave violence in the early hours of 14 January 2020 when the plan to shoot the deceased with an intention to inflict upon him at least grievous bodily harm was executed.

This violence was motivated by a desire to put an end to the intimidation and violence perpetrated against them by engaging in violent conduct intended to cause really serious bodily injury to the deceased. That said, taking matters into their own hands by exacting violence, cannot be condoned and must be denounced.

Each subjective case operates to reduce their moral culpability. I am not satisfied that s 61(1) of the CSPA is engaged and will not impose a sentence of life imprisonment.

Section 3A of the CSPA provides:

General deterrence is a particularly important consideration in determining the proportionate sentence. A term of imprisonment must be imposed that properly reflects the weight to be afforded to general deterrence. Where I have found that an offender suffers from mental health conditions, for that reason, or in combination with other background factors, I have reduced that offender’s moral culpability.

However, I am not persuaded that the mental health conditions, where established, operate to reduce the weight to be afforded general deterrence. Notwithstanding the context of the offending, including the intimidation and violence used by the Bandidos in the months preceding the shooting, the offenders took it upon themselves to employ significant violence, in a calculated and planned manner. They were party to a joint criminal enterprise to shoot the deceased with an intention to inflict grievous bodily harm upon him.

The offenders must also be adequately punished for this crime. They must be held accountable, and their conduct denounced.

In light of the favourable findings made about each offender’s prospects of rehabilitation, the weight to be afforded to specific deterrence and the protection of the community, is reduced. I have also had regard to the importance of rehabilitation in determining the proportionate sentence.

In determining the appropriate penalty, I have had regard to the principle of parity. Principles relating to parity are well-established and were recently referred to in Ooi v R [2023] NSWCCA 97 at [22]-[27]:

I sentenced the co-offender NH to 13 years imprisonment with a non-parole period of 8 years and 6 months: R v NH [2023] NSWSC 428. The combined discount, having regard to the utilitarian value of the plea of guilty and assistance to the authorities was 50%.

The sentencing proceedings in NH followed a plea of guilty which allowed for the preparation of a Statement of Agreed Facts. It was conceded by NH that he should be sentenced on the basis that he was party to a joint criminal enterprise to shoot the deceased with an intention to kill him.

He was sentenced on the basis that his role was one of a “minion”. He was not the architect of the plan to kill the deceased. He did not make any of the arrangements. At all times, NH was following instructions.

He agreed to participate in the joint criminal enterprise to shoot and kill the deceased about one or two days before the killing. On the basis of the Agreed Facts, NH’s role included driving the Yaris containing the co-offenders (Mr McLachlan, Mr Harding, Mr Farnsworth and Mr Maxwell) to the deceased’s property. He entered the deceased’s house and opened the door to the deceased’s bedroom whilst armed with a firearm. Furthermore, he was sentenced on the basis that he was not the shooter.

I found that he was motivated by misguided loyalty to the GB, which was not a mitigating factor. I also found his subjective case highly compelling. The offender’s mental health and his background of deprivation and disadvantage operated to reduce his moral culpability. The medical evidence established that the offender had a diagnosis of brain and lung cancer, which would make his conditions in custody more onerous.

Parity is a relevant consideration in this case. I have made findings about the role of each offender, concluding that Mr McLachlan, Mr Harding and Mr Farnsworth were “minions”, who were at all times following instructions of others. To this extent, their role is similar to that of NH.

However, although NH was also a “minion”, he led the charge at the scene and was in control of the events as they unfolded inside the deceased’s home. His unguarded representations, captured by way of listening device after the shooting, leave no room for doubt that NH took a leadership position once the group arrived at the deceased’s property. That position involved making sure that the group was kept on task, “marching them back up there”, to complete the object of the agreement. His role is more culpable than that of Mr McLachlan, Mr Harding and Mr Farnsworth.

Although NH’s subjective case is more compelling, I am persuaded that the sentence for Mr McLachlan, Mr Harding and Mr Farnsworth, should be less than that imposed on NH. Not only is NH more culpable for the reasons set out above, but his motivation can also be distinguished from that of the present offenders. In his case I found that he was motivated by a misplaced sense of loyalty to the GB.

In the present case, I have concluded that each of the offenders was motivated by a genuine concern about their safety and the safety of their families and associates. Their recourse to violence is inexcusable and must be punished. However, their motivation reduces the objective seriousness of the offence. This is an important distinguishing feature that favours the present offenders. Here, the objective seriousness is assessed as mid-range, whereas in the case of NH, the objective seriousness of the offence was above the middle of the range.

Thirdly, I am sentencing the present offenders on the basis of a joint criminal enterprise to inflict grievous bodily harm, as opposed to an intention to kill. I acknowledge however that it is not always the case that a lesser sentence is warranted where the intention is to inflict only grievous bodily harm. Much depends upon the circumstances of the offending. Here, the conduct involved planning (albeit not an aggravating factor), the use of weapons and the commission of the offence in the home of the victim when he was lying in his own bed.

That said, the intention to inflict grievous bodily harm as opposed to an intention to kill, is a further matter that I have taken into account as a distinguishing factor, favouring the present offenders.

Accordingly, in the case of Mr McLachlan, Mr Harding and Mr Farnsworth, I am satisfied that a lesser sentence than that imposed in the case of NH is warranted.

Although the roles of Mr Harding, Mr McLachlan and Mr Farnsworth are similar, there are some differences in the subjective cases. Mr Harding’s and Mr Farnsworth’s background of disadvantage operate to reduce their moral culpability, that is not a finding I have made in the case of Mr McLachlan. On the other hand, I have assessed his prospects of rehabilitation as very good. Ultimately, I have decided that the relatively small differences in subjective cases do not warrant disparity in the term of imprisonment to be imposed on each offender.

Having found that Mr Woods and Mr Hayes played primary roles, the starting point of the sentence will be greater than that in the case of NH. In determining the extent to which the sentences imposed upon these men must be greater than that imposed on NH, I have had regard to the following relevant factors.

Firstly, like NH, Mr Woods and Mr Hayes each have compelling subjective cases, which I have addressed at some length above. By virtue of their subjective cases I have reduced their moral culpability.

Secondly, Mr Woods and Mr Hayes were motivated by a genuine concern for their safety and the safety of family members and associates, resulting from the intimidation and violence perpetrated by the Bandidos at the instruction of the deceased. This motivation explains (but does not excuse) the extreme conduct engaged in by the offenders who were, up until that point, largely law-abiding men. It operates to reduce the objective seriousness of the offence.

Thirdly, as with Mr McLachlan, Mr Harding and Mr Farnsworth, I sentence Mr Woods and Mr Hayes on the basis that they were party to a joint criminal enterprise to shoot the deceased with an intention to inflict upon him grievous bodily harm.

It follows that although the sentence imposed on Mr Woods and the starting point of the sentence in the case of Mr Hayes will be greater than the starting point in the case of NH, I have had regard to the factors of distinction that favour the present offenders. Ultimately, I have decided that although the sentences in the case of Mr Woods and Mr Hayes will be greater the starting point than in the case of NH, the degree of difference is tempered by the factors set out at [397]-[401].

Each offender urges a finding of special circumstances. A consideration of whether special circumstances exist, is not confined to a limited set of criteria. There are several factors that could justify a finding of special circumstances. There is no exhaustive list. The question as to whether such a finding is made will depend upon the circumstances of the individual case.

Ms Betts, on behalf of the offender Mr Woods, relies on the offender’s need for intervention with a treatment plan, including supervision and counselling to address his mental health issues. The offender is vulnerable as it is his first time in custody and given his mental health issues. In addition, the onerous conditions in custody are relied upon, including extended periods spent in isolation during the COVID-19 pandemic.

Mr Schaudin, on behalf of the offender Mr Hayes, relies on offender’s age and the fact that this is his first time in custody. It is submitted that to reduce the risk of institutionalisation and his need for mental health treatment, he would require a significant period on parole.

Mr Pararajasingham, on behalf of the offender Mr McLachlan, submitted that it is open to the Court to find special circumstances due to the offender’s mental health conditions which will be exacerbated in custody. This is also the offender’s first time in custody, and he has good prospects of rehabilitation.

Mr Stratton SC, on behalf of the offender Mr Harding, relies on the offender’s good prospects of rehabilitation, his need for a longer period of parole to adjust to his return to the community and to ameliorate the risk of institutionalisation.

Mr Keller, on behalf of the offender Mr Farnsworth, relies upon the offender’s limited role in the offence and given that it is his first time in custody. His experience in custody has been onerous due to the impact of COVID-19 and the restrictions that were in place on inmates. He has also been subject to threats and intimidation and may need to be placed in protective custody. It is submitted that a longer parole period will ameliorate the risk of institutionalism and assist him to readjust into the community.

The Crown did not resist a finding of special circumstances.

In each case, I find special circumstances warranting a variation of the statutory ratio. I have no doubt that, given the nature of the offence and the identity of the deceased, each offender has good reason to fear for their safety whilst in custody. The evidence of Detective Lovell about the serious and longer-term risks presented by Bandidos members in gaols is highly relevant to the onerous conditions that each offender will experience during their term of imprisonment.

Although the evidence did not establish a great deal of difference in the conditions experienced by non-association prisoners as opposed to those housed in the general custodial population, the reality is that each of the offenders will spend their time in custody constantly looking over their shoulders, apprehending violence at the hands of Bandidos members and/or associates.

I am satisfied that Mr Woods’ mental health conditions, which will likely be exacerbated due to his concerns for his safety, operate to make conditions in custody more onerous.

This is the first time that he is to serve a term of imprisonment. He is a vulnerable person in prison, by virtue of his anxiety and depression. Mr Woods has already taken steps to rehabilitate himself in custody and I am satisfied that he will require extensive mental health treatment and counselling to assist him to adjust once he is released back into the community.

Mr Hayes is still a relatively young man who will require a longer than usual additional term to adjust to release into the community upon the expiration of his non-parole period. His progress once released to the community will require treatment and counselling for his mental health issues. This is his first time in custody and there is a need given his age and good prospects of rehabilitation, to reduce the risk of institutionalisation.

Mr McLachlan has very good prospects of rehabilitation which will be greatly enhanced by an extended period of supervision upon the expiration of his non-parole period. This is the first time that Mr McLachlan is to serve a term of imprisonment. In determining the extent of the variation of the statutory ratio, I have also had regard to the need to reduce the risk of institutionalisation in his case.

Mr Harding has good prospects of rehabilitation. He will require an extended period of supervision to obtain treatment with respect to his mental health issues and to assist him in readjusting to life in the community. I have also had regard to the need to reduce the risk of institutionalisation.

With respect to Mr Farnsworth, he too, is in custody for the first time in his life. He has good prospects of rehabilitation. An extended period of supervision will enhance those aspects and provide him with the supports necessary to live in the community upon the expiration of his non-parole period. I have also regard to the importance of reducing the risk of institutionalisation.

In sentencing the offenders, I have had regard to the statutory guideposts, the maximum penalty and the standard non-parole period (“SNPP”). I have departed from the SNPP because of the reduction in moral culpability identified above and, otherwise, having regard to each of the offender’s subjective case.

Accordingly, I proceed to sentence the offenders as follows.

In the case of Phillip Woods, I impose a non-parole period of 17 years and 6 months commencing on 22 September 2020 and expiring on 21 March 2038 with an additional term of 10 years and 6 months expiring on 21 September 2048. The total sentence is 28 years. The first date upon which Mr Woods is eligible for release on parole is 21 March 2038.

In the case of Brenton Hayes, having regard to a combined discount of 25% on sentence, I impose a non-parole period of 13 years and 2 months commencing on 2 September 2020 and expiring on 1 November 2033 with an additional term of 7 years and 1 month expiring on 1 December 2040. The total sentence is 20 years and 3 months. The first date upon which Mr Hayes is eligible for release on parole is 1 November 2033.

The total sentence before discount is 27 years imprisonment.

In the case of Brendan McLachlan, I impose a non-parole period of 14 years and 11 months commencing on 18 October 2020 and expiring on 17 September 2035 with an additional term of 8 years and 1 month expiring on 17 October 2043. The total sentence is 23 years. The first date upon which Mr McLachlan is eligible for release on parole is 17 September 2035.

In the case of Jace Harding, I impose a non-parole period of 14 years and 11 months commencing on 30 September 2020 and expiring on 29 August 2035 with an additional term of 8 years and 1 month expiring on 29 September 2043. The total sentence is 23 years imprisonment. The first date upon which Mr Harding will be eligible for release on parole is 29 August 2035.

In the case of Brian Farnsworth, I impose a non-parole period of 14 years and 11 months commencing on 3 November 2020 and expiring on 2 October 2035 with an additional term of 8 years and 1 month expiring on 2 November 2043 The total sentence is 23 years imprisonment. The first date upon which Mr Farnsworth will be eligible for release on parole is 2 October 2035.

In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”), I note that the provisions of that Act have potential application to each offender. I direct that each offender’s legal representative advise him of the existence of the Act and its application to this offence.