R v Titan Gilkes

1. [1]

   Paul Jacques turned 58 years old a couple months before 2 August 2021. He was, in his brother’s words, a “rough nut” but he had the “kindest heart”. In the early hours of that day, he was the target of an attempted armed robbery or home invasion at his home in Gisborne Street Wellington. One of the three robbers – the offender, Titan Gilkes – was armed with a loaded single barrelled shotgun. When the light came on in Mr Jacques’ premises, the offender’s confederates ran and, as they retreated, shouted “shoot” or “pull it” or words to similar effect. Mr Gilkes discharged the shotgun at the closed front door, unaware that Mr Jacques was standing a metre or so behind that door. He aimed the shotgun at a 45-degree angle down from the waist. Shotgun pellets entered Mr Jacques leg below the knee. Around an hour and a half later, Mr Jacques went into cardiac arrest as he was being transported by ambulance to the Orange Base Hospital. He could not be resuscitated, and life was pronounced extinct a little after 7:00am. To once again borrow his brother’s words, this was a cowardly and senseless killing.

2. [2]

   Mr Gilkes, who was just 19 years and 9 months of age at the time, was arrested and charged with murder on 7 June 2023. The reason for the delay in charging him is not known although he had been in custody (on other charges) since 3 August 2021. The offender entered a plea of guilty to the murder charge when the case was still before the Local Court. On 1 August 2024 he was committed for sentence to this Court. He confirmed his guilty plea on arraignment on 11 October 2024. The sentencing hearing took place on Monday, and I am now called upon to sentence Mr Gilkes. Despite the great assistance I received from the lawyers on both sides, and the cooperation between the parties which greatly assisted the Court’s deliberations, determining the appropriate penalty is a very difficult task. The case is a tragic one from the perspective of all involved.

The impact of the crime

1. [3]

   The events of 2 August 2021 are most acutely tragic to the family and loved ones of Paul Jacques and I will address my initial remarks to their grief and bewilderment.

2. [4]

   George Newman was Paul Jacques’ brother. Their mother died when Paul was just 16 years old. The death, which I take to have been sudden and resulted in the boys’ relocation to live with their grandmother, caused changes in Paul’s behaviour. His brother said he was rebellious and difficult but remained of kind heart. At 21, Paul left the grandmother’s house and started working as a truck driver. He was “handy” and always available to help others. Mr Newman reconnected with him in the year 2000 when Paul started living with him. Paul met the woman who would become the love of his life in 2015. They travelled overseas, loved each other and, on Mr Newman’s observation, “Amanda turned Paul into a real gentleman”.

3. [5]

   In a second horrible turn of events in Paul’s life, Amanda got cancer and died in 2019. Paul went to pieces and started mixing with bad company who took advantage of his good nature. Drugs and alcohol took hold. So it was that at the time he was murdered, Paul was – according to the agreed facts – dealing in drugs out of the house in Wellington.

4. [6]

   Mr Newman did not know what to do when the police told him his brother had been killed. The news “broke” him and he felt vengeful although he knew that seeking revenge would not do any good. He had to sit back and hope the police would find those responsible for his brother’s killing. To this day, Mr Newman cannot understand how or why this tragedy happened. The loss of his brother to homicide compounds the grief caused by his mother’s early death. He feels the offenders are cowards who could not even face the person they shot and did not even know who they were shooting. His brother was defenceless. He just cannot understand how people could act this way.

5. [7]

   The law requires that a sentencing judge must take account of the suffering endured by those left behind to grieve the death of the primary victim of a homicide. The Judge – and the sentence – must recognise the harm done to the victims and to the community. In homicide cases, it must also be recognised that human life is sacred and that all lives are equally important. The individual dignity of the victim, in this case Mr Paul Jacques, must be vindicated.

Some fundamental matters of sentencing principle

1. [8]

   The maximum penalty for murder is life imprisonment. This reflects the seriousness with which the law regards all offences of murder. Further, there is a standard non-parole period of 20 years’ imprisonment. While the standard non-parole period does not strictly apply after an early plea of guilty, these statutory guideposts reflect the seriousness of the criminality involved in a murder case. They must be, and have been, kept steadily in mind, throughout a balanced consideration of the appropriate penalty and the evidence touching upon matters relevant to a proper and lawful sentence. No matter how sympathetic the offender’s personal circumstances, and Mr Gilkes presents a compelling and moving case, they must not overwhelm or distract from the objective seriousness of what the offender did, the consequences of what he did and the pain he has caused. Nor can they allow me to forget the availability of a life sentence and the severe standard non-parole period that applies to a case in the mid-range of objective seriousness where the matter proceeds to trial.

2. [9]

   The objectives of sentencing are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “Sentencing Act”) and established by decades of case law. The wrongful taking of human life must be denounced unequivocally, and Mr Gilkes must be held accountable for his conduct and appropriately punished. As I have said, the sentence must reflect the harm caused by the crime: to the victim whose life has been cut short in his prime, to his family and friends, and to the community who are entitled to feel safe and secure in their homes. The sentence must protect the community and send a message both to the offender himself and to others that such offences will be met with stern punishment. At the same time, the sentence must reflect Mr Gilkes’ compelling personal circumstances and must – if possible – aim to promote his rehabilitation and reintegration into the community. Finding the appropriate balance between these considerations presents a challenge.

3. [10]

   It is obvious that the only appropriate penalty for this crime is a lengthy sentence of full-time imprisonment.

4. [11]

   Because of the timing of his plea of guilty, Mr Gilkes is entitled to a reduction of 25% from his sentence.

5. [12]

   The starting point is to make a reasoned assessment of the objective gravity of the offence relative to all other offences of murder. That involves a close examination of the basis of Mr Gilkes’ liability for murder and the agreed facts on sentence. The sentence must reflect the gravity of the offence and tempering the punishment with the leniency and mercy arising from the offender’s age, cognitive challenges and dysfunctional personal history must not result in a sentence that is disproportionate to the gravity of the crime.

6. [13]

   The youth of the offender is relevant to the balance to be struck between considerations of deterrence and rehabilitation. [1]

7. [14]

   Similarly, mental health issues and an offender’s intellectual or cognitive impairment may reduce the weight to be afforded to deterrence, may impact on an assessment of their moral culpability and may make their time in custody more onerous. [2] On the other hand, such difficulties may mean that an offender’s prospects of rehabilitation are bleak. [3]

8. [15]

   Again, an offender who has suffered a deprived childhood, or who has been exposed to drug abuse and violence as they are growing up, is not to be treated as the same as somebody who has not suffered such deprivation or who has not been so exposed. [4] The moral culpability of such an offender may be significantly reduced.

9. [16]

   The matters to which I have referred in the three preceding paragraphs – youth, intellectual impairment and childhood deprivation – must not be treated as a job lot (or “conflated”) and each may have its own role to play in the nuanced assessment of the moral culpability of the offender and a determination of the appropriate length of the sentence. [5]

10. [17]

    Because of the sequence of Mr Gilkes’ offending, and the delay in sentencing him, it is also necessary to consider the principle of totality. [6] He was sentenced in the District Court for two aggravated “break and enters” committed shortly before the murder of Mr Jacques and served concurrent 4-year sentences with non-parole periods of 2 years. The question arises as to whether the sentence imposed for this offence encompasses the criminality in those other offences. [7] While it clearly does not, because of the temporal proximity of the offences and the delay in sentence for this offence, it may be necessary to consider whether there would have been an element of concurrency had all of the sentence proceedings taken place at the same time. [8] In the present case, for reasons I will explain, that question is complicated by the operation of s 56 of the Sentencing Act.

11. [18]

    The offender has a bad record of past offending, especially for one so young. He is not to be punished for that and those offences do not increase the objective criminality of the murder. [9] However, the present offence was committed when the offender was on parole and that is an aggravating factor under the sentencing legislation. [10] Further, his criminal record disentitles him to the leniency that might be afforded to a person who has little or no criminal history. It is also relevant to an assessment of his prospects of rehabilitation and the protection of the community.

12. [19]

    Section 21A of the Sentencing Act provides a catalogue of aggravating and mitigating factors. I will not use this section as some kind of check list, [11] but will expose where appropriate whether such factors arise and how they impact on sentence. There are, for example, several aggravating circumstances that go to an assessment of the objective gravity of the crime, and I have taken those into account.

13. [20]

    It is desirable that the sentence I impose fits within the general pattern of sentencing for similar, but unrelated, crimes. Consistency of punishment is important to instil public confidence in the criminal justice system. The parties provided me with some comparative cases and a schedule of cases, like this one, where sentences were imposed on the basis of “constructive murder”. Even so, no two cases are exactly alike and there must be individual justice in each case.

The facts of the offence and the objective criminality

1. [21]

   The facts of the offence are not in dispute. They are set out in a Statement of Agreed Facts signed by the solicitors for the offender and the Director of Public Prosecutions. This formed part of Exhibit A and is in the following terms:

2. [22]

   Mr Gilkes is to be sentenced on the basis that he is guilty of what the law labels “constructive murder”.

3. [23]

   His criminal liability for murder arises because he committed the act causing Mr Jacques’ death and that act (discharging the firearm) was “done in an attempt to commit, or during or immediately after the commission … of a crime punishable by imprisonment for life or for 25 years”. [12] The foundational offence was under s 97(2) of the Crimes Act 1900 (NSW). In short, that section creates an offence of aggravated armed robbery in company, the circumstance of aggravation being that the offender was armed with a “dangerous weapon” (in this case, the shotgun).

4. [24]

   There is no suggestion that Mr Gilkes knew that Mr Jacques was standing so close to the door and the prosecution does not contend that he intended to kill or inflict harm on Mr Jacques or even that his act demonstrated reckless indifference to human life. [13]

5. [25]

   Speaking very generally, cases of murder where there is no such mental element are considered to involve less “moral turpitude” than those where an offender forms such an intention. [14] However, there is no general rule that cases of constructive murder are necessarily less serious than other cases of murder, or that they will attract a lesser sentence than other instances of murder. [15] What is required is an assessment of the offender’s conduct including his intention and his role in the events causing the death of the deceased. [16]

6. [26]

   While a number of aggravating circumstances under s 21A(2) can be identified, most are either an element of the offence (like being in company or the use of a weapon) or inherent in the offence (the use or threat of violence). The offence was part of a planned or organised criminal activity, but the extent of the planning in this case did not greatly exceed what might be expected in any case involving a constructive murder. The degree of planning was not more than one would usually see in an offence of this kind.

7. [27]

   The one circumstance which is properly categorised as an aggravating circumstance is the fact that the offence was committed at the victim’s home. [17] Mr Jacques was entitled to feel safe, and to be safe, in his own home.

8. [28]

   This was an extremely serious offence. However, murder encompasses crimes of far more objective seriousness. There are cases involving torture and gratuitous cruelty, organised executions, contract and gangland killings, and cases where the offender forms a specific intention to take life. Many cases of murder involve far more planning, premeditation and many involve the wilful infliction of (at least) really serious injury.

9. [29]

   Considering the very wide range of actions that might constitute an offence under s 18, I consider the present offence to fall below, perhaps well below, the mid-range of objective seriousness.

10. [30]

    Having said that, I am unable to accept that the case falls at the very bottom of the range. This is because of the organised nature of the attack. This was not the first time the offender had been to these very premises with malfeasance on his mind. On 18 June 2021, just six weeks earlier, the offender attended the premises in company and armed with a sword demanding “money and gold”. That earlier offence was thwarted when the occupants of the house fought back, Mr Jacques himself wielding a chainsaw. Arming himself with a loaded shotgun was a conscious choice. Further, discharging the firearm not knowing if somebody was standing close to the door was an act of extreme recklessness, and the motive for the offence appeared to be greed, that is the theft of money or drugs from the occupants of the house. Those features of the offence take the case above the low range of murder cases.

11. [31]

    The murder of Mr Jacques was committed while Mr Gilkes was on parole. Mr Gilkes was in adult custody from 9 January 2020 until 11 March 2021 following his conviction for several offences: one count of affray, four counts of assaulting a law enforcement officer and inflicting actual bodily harm, one count of destroying property, and one count of using an offensive weapon to prevent lawful detention. He was released to parole on 11 March 2021. The present offence was committed on 2 August 2021. Mr Gilkes re-entered custody on 3 August 2021 when he was charged with an offence of aggravated break and enter committed on 18 June 2021, that is the earlier offence committed at the same address.

12. [32]

    The breach of parole is an aggravating factor under s 21A(2) but it does not increase the objective seriousness of the offence.

The personal circumstances of the offender

1. [33]

   Mr Nash (Public Defender) and Mr Dickens (of the Legal Aid Commission) presented a powerful and very sad subjective case on Mr Gilkes’ behalf. To resort to a cliché, the offender seems to be the product of his environment. His personal history is one of hopelessness. It engenders the feeling that his early life gave him few opportunities to break out of a generational pattern of drug and alcohol abuse, violence and deprivation. His case comprised an affidavit affirmed by his mother Kylie Elemes (Ex 2) and a thorough and insightful neuro-psychological report prepared by Dr Melissa Hughes (Ex 1). I accept the history provided to Dr Hughes and her expert opinions.

2. [34]

   The offender was 19 years and 9 months old at the time of the offence and is now aged 23 years. He has a very bad criminal history, including many offences of violence, to which it will be necessary to return.

3. [35]

   Mr Gilkes is a young Aboriginal man who was born and raised in Wellington. He has one brother and several half-siblings. His mother used amphetamines every two or three days while she was pregnant with him. She has struggled with drug problems for most of her life apart from a two-and-a-half-month period when she was in a rehabilitation facility.

4. [36]

   Mr Gilkes’ father was violent and abusive to his mother and the offender was exposed to drug abuse and violence in his family home from a young age. His parents separated when he was still an infant (of about 11 months). At the age of two or three Mr Gilkes was taken into care by his paternal grandparents in Dubbo.

5. [37]

   When his grandfather died Mr Gilkes returned to live with his mother and two siblings on the mission in Wellington. He was exposed to significant violence and crime. He witnessed, and at times was subjected to, domestic violence in the home. He was frequently out on the streets with older relatives and friends, abusing drugs and getting involved in criminal conduct, from a young age.

6. [38]

   Mr Gilkes began using cannabis daily when he was 12 years old. At 13 years he began drinking around a carton of beer every weekend. At 15 he was using “ice” heavily on a daily basis and at 18 he began using a considerable amount of heroin. Mr Gilkes has had three overdoses from heroin, one of which he was reluctant to speak about and said it was “sort of” an attempt to take his own life.

7. [39]

   He first came into conflict with the criminal law at around 15 years of age and has been in custody of one form or another for most of the time since. Between 2019 (when he was 17) and today, he has lived in the community for about 5 months.

8. [40]

   When he was 16 years of age and in juvenile detention, Mr Gilkes was sexually assaulted by an officer of the institution. Mr Gilkes told Dr Hughes that this “fuck[ed] with [his] head” and led to a significant increase in his drug use. He committed many unprovoked attacks on custodial officers. He has a deep distrust of authority figures.

9. [41]

   The offender’s education is limited. He described having teacher’s aides at school because he was a “slow learner” and was medicated for ADHD. He has a history of behavioural issues, including physically fighting with other students. He missed school frequently due to truancy and suspensions. He completed Year 10 in juvenile detention and has never had gainful employment in the community.

10. [42]

    The results of neuropsychological testing performed by Dr Hughes are strongly suggestive of “borderline” (2nd to 8th percentile) or “extremely low” (<2nd percentile) intellectual functioning. While further testing would be required for a more precise diagnosis, I am satisfied on balance that the offender has an intellectual, neurological or cognitive disability.

11. [43]

    Dr Hughes had access to several earlier expert reports of which she provides some details in her own report. Dr Satish Dayalan, psychiatrist, expressed an opinion that Mr Gilkes had symptoms consistent with complex PTSD and substance use disorders (cannabis, opiates and stimulants) and Ms Anita Duffy, a psychologist, recorded a history she thought was consistent with persistent depressive disorder with anxious distress.

12. [44]

    Dr Hughes expressed the opinion that Mr Gilkes’ mental health and psychological functioning, which are the result of early and repeated trauma and poor coping skills, are the primary contributors to his criminal behaviour. That trauma includes “his adverse life experiences including early exposure to and normalisation of substance use and crime, poor supervision and parental role models”. These were compounded by further trauma including the sexual assault.

13. [45]

    It is self-evident that the offender has become institutionalised and that his case is one of profound neglect and deprivation, early exposure to drug abuse and violence, coupled with a cognitive impairment of some kind.

14. [46]

    Based on this powerful body of evidence, I am satisfied that Mr Gilkes’ moral culpability is significantly reduced. Many cases have confirmed the rationale behind this finding, including Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, but few have put it as eloquently as Simpson J (as her Honour then was) did in R v Millwood [2012] NSWCCA 2 at [69]:

15. [47]

    I am also satisfied that the sentence must be structured to allow him as long as possible on parole to assist the offender to re-integrate into the community. As Dr Hughes said, Mr Gilkes is “already quite institutionalised” and “prolonged detention will reduce the opportunity to develop general life skills, which would likely already be slower for Mr Gilkes given his cognitive difficulties.” She also believed, and I accept, that the offender “will need considerable wrap-around support on his release to assist him to integrate into the community and develop basic living skills.”

16. [48]

    His condition is also relevant to sentence in that, to again quote Dr Hughes, “prolonged detention would also likely result in further negative effects on his mental health, self-esteem and self-sufficiency”.

17. [49]

    His intellectual difficulties and youth also reduce, to some degree, the weight to be given to general deterrence. As Badgery-Parker JA (with whom Gleeson CJ and Sheller JA agreed) said in R v Letteri (Court of Criminal Appeal (NSW), 18 March 1992, unrep):

18. [50]

    However, in adopting this passage in Champion v R (1992) 64 A Crim R 244, Kirby P (as his Honour then was) cautioned that general deterrence and community protection remained significant. His Honour also repeated the reason for the moderation of deterrence (at 254-255, citations omitted):

19. [51]

    The combination of Mr Gilkes’ chronic difficulties and his history of violent offending, means the protection of the community has a significant role to play despite the mitigatory impact of the history of abuse and deprivation and the psychological and intellectual difficulties: cf R v Engert (1995) 84 A Crim R 67 at 68.

20. [52]

    I must apply the decision in Bugmy v The Queen, where the High Court explained the competing considerations arising in a case like this. Their Honours observed at [37] that “an Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate” (noting that the same principle applies to a non-Aboriginal offender). The joint reasons went on to say at [43]-[44]:

21. [53]

    For a man of his age, Mr Gilkes has a troubling criminal and custodial history. As I have said, he started offending when he was 15 years old, and from the age of 17 years, has only been in the community for a period of 5 months. As both counsel submitted, the police record of convictions and the offender’s custodial history are somewhat at odds with each other and are, to say the least, a little confusing. I received considerable assistance from both the Prosecutor and Mr Nash who patiently took me through these records.

22. [54]

    The following emerges from a consideration of both records and the submissions of counsel:

23. [55]

    This record of offending makes it impossible to come to any positive finding as to Mr Gilkes’ prospects of rehabilitation. However, he remains young and it is difficult to predict where he will be when he eventually comes to be released and how he will respond to any programmes in which he participates during the inevitably lengthy period of incarceration.

Delay, totality and the appropriate commencement date of the sentence

1. [56]

   The case raises a somewhat difficult question concerning the application of the totality principle which, in turn, is complicated by the sentences imposed for the assault and intimidation of the correctives officer which were governed by the application of s 56 of the Sentencing Act.

2. [57]

   As I have observed, Mr Gilkes committed the two aggravated break and enter offences in June and July 2021 and the murder of Mr Jacques took place less than a month later. However, he was not charged with the murder until June 2023. The experienced Prosecutor acknowledged with admirable fairness that, had the offender been charged earlier, partially concurrent sentences may have been imposed. [18]

3. [58]

   Both counsel agree that the totality principle has a role to play. I agree and have come to the following conclusions.

4. [59]

   First, these were separate and distinct offences and the criminality of each cannot be encompassed by the sentence imposed in relation to the other (or others).

5. [60]

   Secondly, because of the temporal proximity of the offending, it is (or would have been) appropriate for there to be a relatively small degree of concurrency between the sentences. It is also noted that the offence committed in June 2021 was on the same premises but the offenders were scared away when Mr Jacques came at them with a chainsaw. In making retrospective findings as to totality it must be remembered that the two sentences imposed by the District Court were ordered to be served entirely concurrently.

6. [61]

   Counsel took somewhat different approaches as to how this could be accommodated within the sentence I am shortly to impose. Mr Nash urged me to backdate the sentence. I accept that this is ordinarily the best way to proceed because it has the great benefit of transparency.

7. [62]

   However, I ultimately accept that it is not appropriate to backdate the sentence so that it would commence during or even before the sentences imposed in relation to the assault and intimidation of the correctional officer. Section 56 required that sentence to commence at the expiration of the non-parole period for the aggravated break and enter offences. The sentencing Magistrate complied with that statutory requirement. To backdate the sentence would render that approach nugatory. While I accept Mr Nash’s submission that such a back-date is technically possible – because the present sentence is not governed by s 56 – I accept the Prosecutor’s argument that the better approach is to commence the sentence on 25 February 2024 being the date upon which Mr Gilkes was entitled to be released from the offences committed on the correctives officer.

8. [63]

   However, I should state clearly that the sentence that I will impose is somewhat less than would otherwise have been imposed. That is the result of the proper application of cases such as Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70 and Winchester (1992) 58 A Crim R 345 and a careful consideration of the totality principle in the peculiar circumstances that pertain here. While Mill v The Queen concerned a much longer delay and offending in two jurisdictions, the following passage (at 66) has some relevance to the assessment of the sentence to be imposed on the present offender:

9. [64]

   The Court also considered the position where there was no statutory authority to backdate the new sentence and observed (at 67):

10. [65]

    Mr Nash also referred to the approximately three-week gap in the commencement date of the sentences for the aggravated break and enter offences. The records tendered in evidence show that the offender entered custody on 3 August 2021 [19] and that the commencement date of the concurrent sentences for the two aggravated break and enter offences was 27 August 2021. [20]

11. [66]

    It is true that it is difficult to understand why those sentences were ordered to commence a little more than three weeks after Mr Gilkes was taken into custody. However, it cannot be said that those three weeks were in any way referable to the present offence because the offender was not charged with murder for another two years. Further, I must proceed on the basis that those sentences were lawfully imposed. There may be a valid reason for what appears, at first blush, to be an oddity in the commencement date. For example (and this is speculation) there may have been a period when he was serving the balance of parole. The evidence does not allow a clear finding but the sentence imposed in the District Court, including the commencement date, must be assumed to be correct.

12. [67]

    To be clear, if somewhat repetitive:

Some specific findings

1. [68]

   Before considering very briefly the comparable cases and stating the sentence I have decided to impose, I will repeat some of the findings I have indicated earlier and state some other relevant findings that have not yet been addressed or formally indicated:

Comparable cases

1. [69]

   The Prosecutor drew my attention to the sentencing judgments in R v DPD [2023] NSWSC 477 (15 years and 3 months with a non-parole period of 10 years and 3 months), R v Shillingsworth [2023] NSWSC 453 (13½ years with a non-parole period of 9½ years) and R v AD [2024] NSWSC 444 (14 years and 4 months with a non-parole period of 9 years and 3 months). DPD and AD were both juveniles at the time of the offending. None of those offenders had the same criminal record as the current offender, which would tend toward a higher sentence, but other factors were similar and Mr Gilkes’ institutionalisation, personal circumstances and the totality issue, pull in the other direction. Shillingsworth received a 25% reduction for his plea but DPD (17.5%) and AD (20%) received a smaller sentencing discount.

2. [70]

   Mr Nash took me to R v Tiriaki [2023] NSWSC 1480 who was sentenced to 17½ years with a non-parole period of 11 years and 8 months, after a sentencing discount of only 12.5%. He also referred to R v Cage, Lowcock & Stamp (No 3) [2024] NSWSC 718, a case that did not involve constructive murder although it had some factual similarities to such cases. The sentences were imposed after trial so there was no sentencing discount. This explains to some degree why the sentences imposed on Mr Cage (21½ years with a non-parole period of 14½ years) and Mr Lowcock (20 years with a non-parole period of 13 years and 3 months) are higher than the other cases to which counsel drew my attention.

3. [71]

   I have also considered the very brief summaries of the 38 cases in the table prepared by the Public Defenders’ chambers which relate to sentences imposed in cases of constructive murder. The range is very wide but they tend to confirm that the results in the five cases to which I have referred are somewhat representative of cases where young offenders with difficult personal histories stand to be sentenced for such offences.

4. [72]

   The cases provided, and the table, confirm that the sentence and non-parole period upon which I have instinctively settled do no violence to the desirability of overall consistency of punishment. However, I emphasise again the requirement for individualised justice and also stress that the offender has been in continuous custody now since the day after the murder (that is, around 3½ years) and the sentence will only be back-dated for around 1 year. The application of the totality principle will result in a sentence which on its face is a little lower than the other cases to which I have referred.

Sentencing

1. [73]

   Synthesising the many matters to which I have referred in the course of these remarks, I have settled on a starting point of 19 years. With a 25% discount for the plea of guilty, the total sentence will be 14 years and 3 months.

2. [74]

   Applying the finding of special circumstances under s 44 of the Sentencing Act, the non-parole period will be 9½ years. In settling on that non-parole period I am conscious that the continuous period of custody (commencing back in August 2021) remains at about 72% of the total notional sentence. However, there will be a parole period of almost 5 years if Mr Gilkes is released at the expiration of the non-parole period. That should be ample time to re-integrate into the community. Further, a shorter non-parole period would not adequately reflect the objective gravity of the offence, its devastating impact on Mr Jacques’ family and the statutory guideposts.

Orders

1. [75]

   I will now formally sentence Mr Gilkes and make some formal orders and directions:

   1. (1)

      Titan Gilkes, for the murder of Paul Jacques you are convicted.

   2. (2)

      You are sentenced to a non-parole period of 9 years and 6 months commencing on 25 February 2024 and expiring on 24 August 2033.

   3. (3)

      There will be a balance of term of 4 years and 9 months commencing on 25 August 2033 and expiring on 24 May 2038.

   4. (4)

      You will not become eligible for release on parole until the expiration of the non-parole period.

   5. (5)

      I am required to tell you that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to you and direct your legal advisers to advise you as to the possible legal consequences that may arise at the conclusion of the sentence.