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[2013] NSWCCA 195
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R v Nguyen [2013] NSWCCA 195 (28 August 2013)
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R v Nguyen [2013] NSWCCA 195 (28 August 2013)
Last Updated: 29 August 2013
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Case Title:
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R v Nguyen
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Medium Neutral Citation:
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Hearing Date(s):
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31 July 2013
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Decision Date:
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28 August 2013
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Before:
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Beazley P at [1];
Johnson J at [1];
RA Hulme J at [1]
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Decision:
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1. Crown appeal allowed.
2. Sentences imposed in the Supreme Court on 15 March 2013 are quashed. In
their place:
(a) For the offence of wounding with intent to cause grievous bodily harm,
the Respondent is sentenced to imprisonment comprising
a non-parole period of 6
years commencing on 8 September 2010 and expiring on 7 September 2016 with a
balance of term of 2 years
and 1 month commencing on 8 September 2016 and
expiring on 7 October 2018.
(b) On the count of manslaughter, and taking into account the offence on
the Form 1, the Respondent is sentenced to imprisonment comprising
a non-parole
period of 12 years commencing on 8 September 2011 and expiring on 7 September
2023, with a balance of term of 4 years
and 2 months commencing on 8 September
2023 and expiring on 7 November 2027.
3. The earliest date upon which the Respondent will be eligible for release
on parole is 8 September 2023.
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Catchwords:
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CRIMINAL LAW - Crown sentence appeal - pleas of guilty - manslaughter and
wounding with intent to cause grievous bodily harm - excessive
self-defence
manslaughter - victim a police officer engaged in lawful execution of duty -
execution of search warrant - Respondent
shoots at and wounds victim with intent
to inflict grievous bodily harm - Respondent believes unreasonably that victim
and other
police not genuine police - other police officer discharges firearm in
response inflicting fatal injury to victim - objective seriousness
of offences -
errors established concerning assessment of objective seriousness of both
offences - error in imposing entirely concurrent
sentences - sentences
manifestly inadequate - aggravating factor that victim a police officer acting
in execution of duty - importance
of specific and general deterrence -
seriousness of possess prohibited firearm offence taken into account on Form 1
for manslaughter
offence - Respondent resentenced
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Legislation Cited:
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Cases Cited:
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Texts Cited:
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Category:
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Principal judgment
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Parties:
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Regina (Appellant)
Philip Nguyen (Respondent)
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Representation
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- Counsel:
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Counsel:
Ms N Noman SC (Appellant)
Mr H Ledinh, Solicitor
(Respondent)
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- Solicitors:
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Solicitors:
Solicitor for Public Prosecutions (Appellant)
Ledinh
Lawyers (Respondent)
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File Number(s):
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2010/300562
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Decision Under Appeal
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- Before:
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Fullerton J
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- Date of Decision:
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15 March 2013
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- Citation:
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- Court File Number(s):
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2010/300562
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Publication Restriction:
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JUDGMENT
- THE
COURT: This is a Crown appeal under s.5D Criminal Appeal Act 1912
with respect to sentences imposed upon the Respondent, Philip Nguyen, for
offences of manslaughter and wounding with intent to cause
grievous bodily
harm.
- On
15 March 2013, the Respondent was sentenced for the manslaughter of William
Crews to imprisonment for 9 years and 6 months, comprising
a non-parole period
of 7 years to date from 8 September 2010 and a balance of term of 2 years and 6
months.
- On
the charge of wounding William Crews with intent to cause grievous bodily harm,
the Respondent was sentenced to an entirely concurrent
term of imprisonment of 6
years and 3 months, with a non-parole period of 4 years and 9 months to date
from 8 September 2010 and
a balance of term of 1 year and 6 months.
- Accordingly,
the total effective sentence for both offences was imprisonment for 9 years and
6 months with a non-parole period of
7 years.
- The
maximum penalty for manslaughter is imprisonment for 25 years: s.18(1)(b)
Crimes Act 1900. There is no standard non-parole period prescribed for
this offence. The maximum penalty for wounding with intent to cause grievous
bodily harm is imprisonment for 25 years: s.33(1)(a) Crimes Act 1900. A
standard non-parole period of 7 years is prescribed for this offence.
- In
sentencing the Respondent for manslaughter, the sentencing Judge took into
account, on a Form 1, an offence of possession of a
prohibited firearm contrary
to s.7(1) Firearms Act 1996. If prosecuted separately, this offence was
punishable by imprisonment for 14 years and a standard non-parole period of 3
years would
apply.
Grounds of Appeal
- On
27 March 2013, the Crown filed a Notice of Appeal to this Court. The Crown
relied upon the following grounds of appeal:
(a) Ground 1 - the sentencing Judge erred in the assessment of the
objective seriousness of the manslaughter offence.
(b) Ground 2 - the sentencing Judge erred in failing to sentence in
accordance with the finding made as to the objective seriousness
of the wounding
with intent offence.
(c) Ground 3 - the sentencing Judge erred in the approach to the totality
principle in determining that the overall criminality could
be comprehended by
the sentence for manslaughter.
(d) Ground 4 - the sentences are manifestly inadequate.
- In
approaching the grounds of appeal, it should be kept in mind, as the sentencing
Judge observed correctly, that the "unusual, even unique, factual
circumstances" of the case presented the Court "with a challenging
sentencing exercise": R v Nguyen [2013] NSWSC 197 at [70].
Facts of Offences
- Constable
William Crews was a 26-year old member of the New South Wales Police Force at
the time of his death on 8 September 2010.
As will be seen, he was engaged in
operational police activities as part of the lawful execution of a search
warrant at the time
of the tragic events on 8 September 2010.
- The
sentencing Judge made factual findings for the purpose of sentence by reference
to a Crown case summary agreed for that purpose.
Her Honour recited at
[9]-[17]:
"[9] In September 2010 the offender lived at a unit complex at
Bankstown. He also had use of a garage numbered 8 in the basement car
park to
the complex.
[10] On 8 September 2010 Detective Senior Constable Roberts, attached to
the Middle Eastern Organised Crime Squad, received information
from a registered
source as a consequence of which a search warrant was applied for in relation to
the offender's residential unit
and Garage 8. The warrant was issued later that
day. Detective Senior Constable Roberts was the officer-in-charge of the
execution
of the warrant. Prior to the deployment of the police officers who
were to assist in the execution of the warrant, Detective Senior
Constable
Roberts conducted a briefing which was attended by those officers, including
Constable Crews.
[11] Of the eight police officers deployed to execute the warrant, three
were in police uniform. The remaining officers, including
Constable Crews and
Detective Senior Constable Roberts, were in civilian clothes. Some or all of the
officers were armed with police
issue weapons. Constable Crews was armed, as was
Detective Senior Constable Roberts. The operation was, however, deemed to be of
low risk. It was not anticipated that there would be firearms in the offender's
premises or at his disposal.
[12] Police arrived at the unit complex and effected entry at
approximately 9 pm. Access was obtained with the assistance of a resident
who
directed police to Garage 8. The basement area was accessed through a closed
door from inside the unit complex.
[13] Detective Senior Constable Roberts led the officers into the basement
followed by Constable Crews. Detective Senior Constable
Roberts was carrying a
battering ram in the event that it was necessary to force entry to the garage.
Constable Crews was carrying
a folder containing the warrant and related
documents. Another police officer gave directions to Garage 1 in the mistaken
belief
it was Garage 8.
[14] Earlier that day the offender was party to discussions in the garage
area of the unit complex about a drug deal in which Tan
Chung, an associate of
the offender, was involved with three other men. These men also discussed an
existing drug debt where Chung
owed money to one of the men after that man had
supplied him with drugs the previous day. The men left the garage shortly before
police arrived. The offender and Chung remained. They were inside Garage 1, the
door to which was open when police arrived. Three
other men were inside Garage 8
behind a closed mesh door.
[15] Constable Crews and Detective Senior Constable Roberts walked towards
Garage 1, mistakenly believing it was Garage 8. Other officers,
also in civilian
clothes, were close behind. Uniformed police were further behind, including the
officer tasked with recording the
execution of the search warrant. No officer
had a firearm drawn. Police (including Constable Crews) signalled their approach
to Garage
1 by announcing they were police a number of times.
[16] Detective Senior Constable Roberts then heard Constable Crews, who
was the only police officer in front of him, yell out, 'Gun,
he has a gun'. He
then saw the offender walking out of Garage 1 in a crouched position holding a
pistol which he was pointing in
various directions, including in the direction
of police. The offender then started moving towards the police. Police were
unaware
that Chung was hiding in Garage 1 or that there were other men in Garage
8.
[17] Constable Crews and Detective Senior Constable Roberts again
identified themselves as police and directed the offender to put
down the
gun."
- At
this stage, according to the agreed facts, Detective Senior Constable Roberts
was about four to five metres from the Respondent
and Constable Crews was closer
still. The garage area was well lit. The Respondent would have had a clear view
of the approaching
police officers, in particular, Constable Crews who was
holding a folder of papers only. The sentencing Judge continued at
[18]-[23]:
"[18] What followed was a sequence of five shots fired from
three guns in the space of seconds. First, the offender discharged his
pistol
(later confirmed to be a Bryco Arms pistol loaded with .22 gauge ammunition) at
Constable Crews which penetrated the soft
tissue of his left upper arm.
Constable Crews then discharged three shots in quick succession - effectively in
the process of drawing
his weapon after he had been shot by the offender.
Ballistics later confirmed the shots fired by Constable Crews were discharged
in
random angulations to the ground. Detective Senior Constable Roberts, who had
retreated with other police rearwards behind a side
wall, then drew his weapon
which he discharged at the offender. Ballistics later confirmed that the single
shot from his weapon struck
Constable Crews in the neck. This was a fatal wound.
Detective Senior Constable Roberts told investigating police that the shot was
not a carefully aimed shot, however, at the time he believed that his firearm
was pointed at the offender who he was attempting to
hit. All three weapons were
later confirmed to be in working order.
[19] Immediately after Detective Senior Constable Roberts fired the shot
he saw Constable Crews on the ground bleeding from the head.
Constable Crews was
later transferred to hospital by ambulance. Death was pronounced at 12.15 am the
following morning.
[20] While Detective Senior Constable Roberts' attention was focused on
the welfare of Constable Crews as he was lying prone in the
open garage area,
the other police officers maintained their position behind cover in the garage.
Detective Senior Constable Roberts
then saw the offender trying to use his
firearm which appeared to be jammed, after which he picked up the battering ram
from where
it had been dropped and simulated its use as a gun by pointing it
towards the officers, including Detective Senior Constable Roberts.
[21] The offender (and Chung) then retreated into the garage and
eventually made their way to the offender's unit via a rear door.
Police were
not aware that the offender had left the basement and, believing he was still in
the garage, made attempts to encourage
him to surrender his firearm and present
himself. When it was ultimately established that the offender was not in the
basement, first
aid was rendered to Constable Crews and the basement area was
secured.
[22] Both in the garage after the shots were fired, on his way to the unit
and once inside the unit the offender asserted repeatedly
to Chung that the men
were, what he describes as, 'fake police', and that he believed they thought he
had money. Chung said he told
the offender that the men were in fact police. The
offender told his wife that someone was trying to break into the garage, and
that
he shot the man and he thought he was going to die. It is unclear whether
he was aware that his shot had wounded the officer in the
arm and unaware that
the officer was shot a second time by someone else. Although this is an
available inference it is irrelevant
for sentencing purposes. It does, however,
lend support to the Crown's submission that the atmosphere in the basement was
infused
with considerable tension and confusion, and that the exchange of shots
were fired in very quick succession with Constable Crews
falling to the ground
injured in the process.
[23] The offender emptied the twelve bullets from the pistol and placed
the magazine into the drain of the bathroom and placed the
pistol on the
veranda. At some stage he barricaded himself and the other occupants of the unit
inside by placing furniture against
the door. Police negotiators contacted him
and negotiated his surrender. He was arrested and conveyed to Bankstown Police
Station
together with Chung and the other occupants of Garage 8 who were also
arrested."
- The
sentencing Judge referred to matters raised by the Respondent in his recorded
interview with police. The Respondent acknowledged
that he was involved in a
drug deal that evening. Her Honour said at [29]:
"The offender agreed to participate in a recorded interview
after his arrest in the course of which he said that he and Chung went
to the
garage that evening to smoke some heroin. The offender said that at the time of
the incident Chung was organising a drug deal
involving eight ounces of cocaine.
In the agreed facts it is said that the offender falsely claimed to police that
he was not involved
in the transaction from which I infer that the offender
accepts that he was in fact involved. The extent of his involvement was not
the
subject of any further elaboration."
- The
Respondent told police of an attempted robbery some two weeks earlier and his
obtaining of a firearm as a consequence. The sentencing
Judge said at [30]:
"In the interview the offender told police that whilst he was
inside the garage he heard a lot of people shouting and screaming and
saw two
men standing at the entrance to the front of the garage who he believed were
there to rob him. Police later confirmed by
enquiries independent of the
offender and his family that approximately two weeks prior to the shooting he
was the victim of an attempted
robbery by two masked men armed with bats whilst
he was in Garage 8. On that occasion the offender shouted at the men (apparently
to ward them off) and they fled, leaving behind a mobile phone which police
located during the search of the premises on 8 September
2010 and were able to
trace. The offender reported to his wife that the robbers had cricket bats. He
told police the robbers had
knives. It is not in dispute that the offender
obtained the pistol after this incident to protect himself in the event of
another
robbery. There is no evidence as to whether the robbers were looking for
drugs or money or both."
- Finally,
the sentencing Judge recounted, at [31], the Respondent's earlier experience of
police executing a search warrant:
"Although the offender also agreed that he was aware from a
previous search warrant executed on his premises that police officers
engaged in
operations of that kind do not always wear police uniform, there is no evidence
as to the circumstances in which the earlier
warrant was applied for and
executed, or when that occurred relative to the shooting."
The Basis of the Respondent's Plea of Guilty to Manslaughter
- The
sentencing Judge recited the basis of the Respondent's plea of guilty to
manslaughter at [32]-[34]:
"[32] For the purposes of the sentence proceedings it was the
agreed position that the plea of guilty to manslaughter involves the
offender
accepting that he caused the death of Constable Crews despite the single shot he
fired penetrating Constable Crews' upper
arm and the fatal shot being fired by
another police officer.
[33] The issue of causation was conceded by his acceptance of the
proposition that the discharge of the pistol (which caused the wound
the subject
of the wounding charge) substantially contributed to the exchange of gunfire in
the course of which Constable Crews was
fatally shot by a fellow officer, and in
circumstances where it was reasonably foreseeable that someone in the vicinity
of an exchange
of gun fire may be fatally (even if inadvertently) shot.
[34] The plea of guilty to manslaughter also entails the Crown accepting
the reasonable possibility that the offender genuinely believed
that it was
necessary to shoot at the person who proved to be Constable Crews in order to
defend himself (based as it was on his
mistaken belief that the officer was
someone who was intent on robbing him and someone who might have posed a serious
risk to his
safety). It also entails acceptance by the offender that a
reasonable person in his position would not have considered that it was
necessary to shoot that person in defence of himself or his property."
- The
Respondent's plea of guilty to the s.33(1)(a) offence was touched upon by the
sentencing Judge at [35]:
"The plea of guilty to the charge of wounding with intent to
inflict grievous bodily harm entails acceptance of the fact that the
offender
shot at Constable Crews intending to cause him grievous bodily harm and that he
wounded him in the process. Given the offender's
concession that his response to
the presence of men he believed might rob or harm him was not reasonable,
self-defence was not available
as a defence to that charge."
- The
Crown's acceptance of the Respondent's plea of guilty to manslaughter upon the
basis of excessive self-defence was a repeated
theme of the sentencing
proceedings.
- In
the course of oral submissions, the Senior Crown Prosecutor said (T21.36, 8
March 2013):
"So far as remorse is concerned, and what's in the presentence
report, what we submit is this; he has restated to the parole officer
that at
the time of the offence he felt threatened and that he was going to be killed.
That of course is the reason why this is not
a murder charge, it's a
manslaughter charge. So that is not, we would submit, a mitigating feature, it's
the reason why it's a manslaughter
charge."
- The
Crown written submissions on sentence included the following proposition
(Further Crown Submissions on Sentence, 13 March 2013,
page 1):
"The Crown points out that had the accused known that William
Crews and the other men were in fact police officers, this would have
been a
murder case rather than manslaughter. The acceptance of the plea to manslaughter
by the Crown is precisely because the accused
did not know (or the Crown cannot
prove that he did know) that the men were police."
- At
first instance and on appeal, Mr Ledinh, for the Respondent, did not challenge
these Crown submissions nor seek to contradict the
explanation as to the basis
upon which the Respondent had pleaded guilty to manslaughter. As will be seen,
this aspect is of significance
to the first ground of appeal.
The Respondent's Subjective Circumstances
- A
presentence report was tendered on sentence, with that report providing the
basis for findings made concerning the Respondent's
subjective circumstances. In
addition, the Respondent gave short evidence confined to an expression of
remorse.
- The
Respondent was born in Vietnam in 1955 and was aged 55 years at the time of the
present offences. He is one of 13 children. He
arrived in Australia as a refugee
in 1978 and worked as a factory process worker and in manufacturing.
- The
Respondent married in 1982 and had three children, aged between 15 and 26 years
at the time of sentence. He and his wife divorced
in 1996.
- The
Respondent married again in 2001, with his wife arriving from Vietnam in 2003.
The Respondent informed the Probation and Parole
officer that he had separated
from his second wife after entering custody for these offences.
- The
Respondent's first wife was murdered in 2001 and he thereafter assumed care for
his children from that marriage.
- The
Respondent's criminal history included appearances before the Dandenong
Magistrates' Court in Victoria in 1999 on charges of theft,
in relation to which
he was ordered to perform 200 hours' community service and to pay compensation
in the sum of $53,918.00. In
2003, the Respondent was sentenced in the Melbourne
County Court to 18 months' imprisonment, suspended for two years, upon charges
of obtaining financial advantage by deception and receiving stolen goods. In
addition, he was ordered to pay compensation in the
sum of $293,967.00.
- On
17 July 2006, the Respondent was sentenced in the Sydney District Court on a
charge of supplying a commercial quantity of a prohibited
drug, to a term of
imprisonment for three years commencing on 14 July 2006 with a non-parole period
of 18 months expiring on 13 January
2008.
- The
Respondent had been a user of heroin and crystal methamphetamine from the time
of his first wife's death in 2001 and was still
using both drugs at the time of
the offences. He had been directed by the Probation and Parole Service to
address his drug use whilst
on parole in 2008-2009, but without success. The
presentence report recorded that the Respondent's "overall response to
supervision was considered to be superficial as he failed to attend any of the
recommended programs, thus failing
to address his offending behaviour".
- The
sentencing Judge did not find that there were favourable prospects of
rehabilitation (at [63]). Although the Respondent had suffered
a stroke in
November 2012, the sentencing Judge concluded that neither his health nor his
age indicated that his time in custody
would be more onerous (at [64]).
- The
sentencing Judge declined to make a finding of special circumstances (at
[66]).
- The
sentencing Judge applied a 10 per cent discount to reflect the Respondent's
pleas of guilty (at [10]).
- Her
Honour accepted that there was an expression of remorse by the Respondent, but
indicated that its weight as a mitigating factor,
to a large extent, was
overwhelmed by the collective weight of the aggravating features of the offences
(at [65]).
Objective Seriousness, Concurrency and Totality
- For
reasons to be considered in greater detail by reference to the first and second
grounds of appeal, the sentencing Judge held that
both offences were of
significant objective seriousness.
- After
identification of the sentences which should attach to the individual offences,
the sentencing Judge determined that the sentences
should be entirely
concurrent. This aspect has given rise to the third ground of appeal.
Ground 1 - The Sentencing Judge Erred in the Assessment of the
Objective Seriousness of the Manslaughter Offence
Submissions of the Parties
- The
Crown accepted that the sentencing Judge had addressed correctly the pertinent
features that informed the objective seriousness
of the crime of manslaughter.
However, challenge was made to the mechanism by which the sentencing Judge
determined that this case
did not fall within the worst case category.
- The
Crown relied upon s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999 as a
factor bearing upon the objective seriousness of the Respondent's offences.
Section 21A(2)(a) provides:
"(2) Aggravating factors
The aggravating factors to be taken into account in determining the
appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker,
correctional officer, judicial officer, council law enforcement officer,
health
worker, teacher, community worker, or other public official, exercising public
or community functions and the offence arose
because of the victim's occupation
or voluntary work, ..."
- The
sentencing Judge considered whether s.21A(2)(a) required knowledge or belief on
the part of an offender that the victim fell within one of the nominated
categories, in this case,
a police officer exercising public functions with the
offence arising because of the victim's occupation.
- In
reasoning which is not challenged in this Court, her Honour ruled that knowledge
or belief that the victim fell into one of the
designated categories was not
essential to attract s.21A(2)(a), with that statutory aggravating factor capable
of applying if it was reasonably foreseeable to the offender that the victim
fell
into such a category. The sentencing Judge said at [52]-[53]:
"[52] As I see it, accepting as I must that the offender might
actually have believed that the police officers were robbers (indeed,
even
accepting that he actually held that belief), I am also entitled to find that he
could equally have reasonably foreseen that
men approaching him in the basement
car park might not be robbers. This conclusion is open since it appears to have
been conceded
by him in the statement of agreed facts that he heard the men
announce that they were police but because he thought they were robbers
pretending to be police, he obtained his pistol and fired it at one of them
without ascertaining whether they were in fact police.
[53] In the result, I propose to take into account s 21A(2)(a) as an
aggravating factor in the assessment of objective seriousness, not because the
offender knew or believed that Constable Crews
was a police officer, but because
he ought reasonably to have foreseen the possibility that he might be. Whilst
the feature of aggravation
put in this way is of slightly less weight than were
he to have been actually aware that the man he shot at was a police officer,
it
does aggravate the objective seriousness of both offences to a significant
degree."
- In
support of the first ground of appeal, the Crown contended that the sentencing
Judge fell into error in the underlined portion
of [57] set out hereunder:
"[57] In conclusion, I accept that the offender was unaware that
Constable Crews was a police officer when he shot him and that, although
he did
not fire the shot that killed Constable Crews, he caused his death. I also
accept that when he discharged the pistol that
caused his death and the wounding
he had a genuine belief (entirely misplaced) that he needed to defend himself
against a perceived
threat of harm. Notwithstanding those findings, the
circumstances in which the offences were committed, including the aggravating
factors to which I have referred, render both offences objectively serious. I
am not persuaded, however, that either offence is in the worst category. It
would have been otherwise were the offender to have
shot at Constable Crews
intending to inflict grievous bodily harm knowing or believing he was a police
officer, or were he with that
same state of awareness to have pleaded guilty to
manslaughter on the basis that Constable Crews was killed by his unlawful and
dangerous
act in shooting at him."
- The
Crown submits that, to the extent that the sentencing Judge used the absence of
knowledge or belief by the Respondent of the victim
being a police officer as
the basis to reduce the perceived seriousness of the offence of manslaughter,
error was demonstrated. Had
the Respondent known or believed that the victim was
a police officer, the Crown submitted that he would not have been able
legitimately
to rely upon an entirely misplaced but genuine belief that he
needed to act as he did to defend himself from a perceived harm. In
these
circumstances, the appropriate charge would have been murder rather than
manslaughter.
- In
approaching this issue in this way, the Crown submitted that the comparison of
possible scenarios referred to at [57] of the remarks
on sentence involved error
in accordance with the principles in The Queen v De Simoni [1981] HCA 31;
147 CLR 383 at 389.
- To
the extent that the sentencing Judge had evidently assessed the seriousness of
the manslaughter offence by factoring in this distinction,
it was submitted
there would of necessity had been some mitigation of the assessment of objective
seriousness. The apparent point
of distinction introduced a hierarchy into the
assessment between the two possible scenarios that operated in an impermissible
way
in favour of the Respondent. By factoring into the range of offending, a
circumstance that was outside the scope of the offence,
it was submitted that
the sentencing Judge had reduced erroneously the objective seriousness of the
manslaughter offence.
- As
a result, the Crown submitted that the Respondent's manslaughter offence was
assessed as being at a lower level of objective seriousness
than its true
position.
- Submissions
advanced for the Respondent did not seek to challenge this analysis, nor the
suggested error which the Crown asserted
had been revealed. Rather, the
submission concentrated upon the discretionary nature of an assessment of
objective seriousness.
Decision
- In
imposing sentence, a Judge is entitled to consider all the conduct of the
offender, including that which would aggravate the offence,
but cannot take into
account circumstances of aggravation which would have warranted conviction for a
more serious offence: The Queen v De Simoni at 389 (Gibbs CJ).
- The
sentencing proceedings were conducted upon the basis that what would otherwise
have rendered the Respondent liable to conviction
for murder ought be reduced to
manslaughter as the Crown could not negative the Respondent's belief that his
conduct was necessary
to defend himself, although the conduct was not a
reasonable response in the circumstances as he perceived them: s.421 Crimes
Act 1900. In these circumstances, the Respondent was guilty of manslaughter
and the Respondent's plea was approached upon this basis.
- If
the Respondent had known or believed that he was shooting at a police officer,
the basis upon which he was rendered liable to conviction
for manslaughter, and
not murder, would have been removed.
- If
the Respondent stood for sentence for the murder of a police officer exercising
public functions with the offence arising because
of the victim's occupation,
the maximum penalty would have been imprisonment for life: s.19A(1), (3). A
standard non-parole period of 25 years would have applied: s.54A(1); Item 1A,
Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act
1999. The provision permitting a mandatory life sentence for the murder of a
police officer contained in s.19B Crimes Act 1900 could not apply to the
Respondent's case as it extends only to offences committed after 23 June
2011.
- Claims
of breaches of the De Simoni principle occur from time to time in the
context of the escalating statutory scheme for assault and wounding offences in
the Crimes Act 1900, where it is said that a sentencing court has taken
into account, as an aggravating factor, a circumstance that would warrant
conviction
for a more serious offence. A sentencing court is entitled to
consider all the conduct of the offender, but cannot take into account,
as an
aggravating factor, circumstances which would have warranted conviction for a
more serious offence: McIntyre v R
[2009] NSWCCA 305 
; 198 A Crim R 549 at
557 [34] .
- The
De Simoni principle would be breached as well if, for example, the
sentencing court took into account the absence of grievous bodily harm in
assessing the objective seriousness of an offender for an offence of assault
occasioning actual bodily harm.
- The
sentencing of offenders for public justice offences lying within the statutory
hierarchy of offences contained in Part 7 Crimes Act 1900 has also given
rise to breaches of the De Simoni principle: R v Mobbs [2005]
NSWCCA 371 at [30]- [33]. This Court has held that in assessing the objective
seriousness of an offence of influencing a witness under s.323(a) Crimes Act
1900, it was wrong to have regard to the absence of a feature (the absence
of threats) which, if it were present, would constitute a different
and more
serious offence of threatening to cause injury or detriment to a person
intending to influence a person as a witness contrary
to s.322(a) Crimes Act
1900: R v Burton [2008] NSWCCA 128 at [66], [89]-[90].
- We
are satisfied that error of this type has been demonstrated in this case. For
the purpose of assessing the objective seriousness
of the Respondent's crime of
manslaughter, it was erroneous to have regard to the absence of a factor which,
if it existed, would
have rendered the Respondent guilty of murder. In this way,
an extraneous or irrelevant consideration has affected the sentencing
decision:
House v The King [1936] HCA 40; 55 CLR 499 at 505.
- An
additional difficulty arises in the remarks on sentence at [57], where reference
is made to a different approach being available
if the Respondent had
"pleaded guilty to manslaughter on the basis that Constable Crews was killed
by his unlawful and dangerous act in shooting at him". This distinction had
not been adverted to at the sentencing hearing. As mentioned in the course of
argument before this Court (T3-4,
31 July 2013), it is difficult to see how the
act of shooting at a police officer with intent to inflict grievous bodily harm
could
be characterised merely as an unlawful and dangerous act for the purpose
of the law of manslaughter. This aspect is secondary to
the Crown's principal
complaint that a breach of the De Simoni principle has occurred in this
case.
- The
Crown has demonstrated error in the finding of reduced objective seriousness by
reference to an impermissible factor. Accordingly,
the first ground of appeal is
made good.
Ground 2 - The Sentencing Judge Erred in Failing to Sentence in
Accordance With the Finding as to the Objective Seriousness of the
Wounding With
Intent Offence
Submissions of the Parties
- The
sentencing Judge made a finding that the s.33(1)(a) offence (which carried a
standard non-parole period of seven years) fell within the mid-range of
offending. Her Honour said at [58]:
"To the extent that it is necessary to appoint the wounding
charge within a range of offending because of the standard non-parole
period
that attaches to that offence, I am satisfied that it falls within the mid range
of offending. Although the offender did not
rely in submissions upon his
mistaken belief that the police were robbers to ameliorate the seriousness of
the wounding charge, it
seems to me that some allowance should be made in the
assessment of objective seriousness for that offence for the Crown's concession
that his belief that the men were robbers was genuine (or that the Crown could
not prove that it was not). Neither evidence nor submissions
were directed to
the nature of the wound and the extent of medical attention that would have been
necessary to treat it. However,
viewed from the limited perspective of the wound
being to the inner aspect of Constable Crews' arm and measuring two millimetres
in diameter, I am unable to conclude that the wound was serious. What justifies
a finding of mid range offending is that a gun was
used accompanied by an
intention of causing grievous bodily harm, aggravated by the statutory factors
to which I have referred."
- The
Crown did not seek to challenge this finding. Rather, the Crown submitted that
it was difficult to reconcile the non-parole period
and head sentence fixed for
this offence with the finding of objective seriousness and other factors
operating on sentence for this
crime.
- In
circumstances where there was a finding that the offence lay within the
mid-range of offending, and where there was little operating
subjectively in
favour of the Respondent apart from the 10 per cent discount for his plea of
guilty and a finding of remorse with
limited effect, it was submitted that the
fixing of a head sentence of six years and three months with a non-parole period
of four
years and nine months did not reflect the findings otherwise made by the
sentencing Judge.
- The
Crown noted that no finding of special circumstances had been made and thus no
adjustment had been made to the statutory ratio
between the non-parole period
and the head sentence.
- Whilst
recognising the need to avoid erroneous reliance upon the standard non-parole
period in breach of the principles in Muldrock v The Queen [2011] HCA 39;
244 CLR 120, the Crown submitted that the significance of the standard
non-parole period in this case was greater than in cases where an offender
has a
stronger subjective case, so that greater weight ought to have been placed upon
the standard non-parole period as a statutory
guidepost on sentence: AB v
R [2013] NSWCCA 160
- The
Crown pointed to the judgment in Muldrock v The Queen at 132 [29], where
the Court observed that the obligation to record reasons in s.54B(4) Crimes
(Sentencing Procedure) Act 1999 required a sentencing Judge to identify the
facts, matters and circumstances which the Judge concludes bear upon the
judgment that
is reached upon the appropriate sentence to be imposed. The Crown
submitted that the remarks on sentence revealed a contrast between
the myriad of
factors to support the finding of mid-range offending with few factors which may
dilute the significance of the standard
non-parole period as a marker or
guidepost on sentence. Viewed in this way, the Crown submitted that the
sentencing discretion miscarried
with respect to this offence with the sentence
imposed being inconsistent with the finding of objective seriousness.
- The
Respondent submitted that the sentence imposed for this offence lay within the
proper exercise of discretion of the sentencing
Judge and that no error had been
demonstrated.
Decision
- In
approaching this ground of appeal, it is necessary to keep in mind the confines
of the permissible use of the standard non-parole
period in view of the decision
in Muldrock v The Queen. The standard non-parole period and the maximum
sentence are two legislative guideposts, with the objective seriousness of an
offence
to be assessed wholly by reference to the nature of the offending:
Muldrock v The Queen at 132 [27].
- There
is force in the Crown submission that the standard non-parole period may be a
more significant factor on sentence of an offender
where there is little
operating in the offender's favour on sentence. Its significance in a particular
case may vary. In Muldrock v The Queen, it was said that the standard
non-parole period said "little about the appropriate sentence for this
mentally retarded offender and this offence": Muldrock v The Queen at
133 [32]. In other cases, its significance may well be greater: AB v R at
[51]. The present case falls into the latter category.
- The
Crown submission, in effect, is that greater weight should have been given in
this case to the standard non-parole period attaching
to the s.33(1)(a)
offence.
- This
Court has, on more than one occasion, expressed the need for caution where a
ground of appeal seeks to challenge the weight that
is given to a particular
factor on sentence: R v Baker [2000] NSWCCA 85 at [11]; Yang v R
[2012] NSWCCA 49; 219 A Crim R 550 at [25].
- It
has been suggested that a ground asserting that a particular feature has not
been given sufficient regard or sufficient weight
by a sentencing Judge is, in
truth, a particular of a ground asserting that the sentence is manifestly
excessive (or inadequate),
with the only way of testing the proposition being to
examine the sentence ultimately imposed, with such an approach leading to
consideration
of the outcome, and not process: Hanania v R [2012] NSWCCA
220 at [33] (Button J, Hoeben JA and Johnson J agreeing).
- In
this case, the finding of objective seriousness (mid-range offending), and the
very limited nature of other matters to be taken
into account as part of the
instinctive synthesis, suggests error in the sentencing outcome given the
non-parole period and head
sentence imposed, where the statutory guideposts laid
down a standard non-parole period of seven years and a maximum sentence of
25
years' imprisonment.
- In
a case such as this, it may be said that the standard non-parole period has
greater significance, and that the reasons required
under s.54B(4) should
articulate a basis upon which the ultimate sentencing outcome may be understood
in the context of these statutory guideposts.
The reasons in this case do not
assist in understanding the sentence imposed for the s.33(1)(a) offence against
the finding of mid-range offending.
- A
means of testing this ground of appeal is to look at the sentence ultimately
imposed, in accordance with the approach suggested
in Hanania v R. In
this way, this ground of appeal overlaps with the claim of manifest inadequacy
in the fourth ground.
- We
prefer to approach this ground as a submission in support of the fourth ground.
The ground does not require further separate
consideration.
Ground 3 - The Sentencing Judge Erred in the Approach to the Totality
Principle in Determining that the Overall Criminality Could
be Comprehended by
the Sentence for Manslaughter
Submissions of the Parties
- The
Crown submitted to the sentencing Judge that there should be a measure of
accumulation as between the two sentences. Her Honour
rejected this submission,
explaining the approach taken at [69]:
"After having given careful consideration to the principled
approach in the authorities, I do not propose to order that the sentences
be
partially accumulated. I have come to that conclusion for the following reason.
For sentencing purposes, I am invited to accept
that the offender caused the
death of the Constable Crews when the shot fired by Detective Senior Constable
Roberts penetrated his
neck and that, literally seconds before, the offender had
inflicted a gunshot wound. Although the consequences of the offender's
criminal
act are different (in that the bullet he fired caused a wounding while the
bullet he caused to be fired caused a death),
the same criminal conduct is
common to both offences. Detective Senior Constable Roberts has no criminal
liability for firing the
fatal shot. In these circumstances I am satisfied that
the total criminality constituted by his offending can be comprehended by
the
sentence for the manslaughter, which I accept is the more serious offence by
reason of the loss of life."
- In
this Court, the Crown submitted that error had been demonstrated and that this
Court should proceed to resentence the Respondent,
allowing for "a modest
degree of accumulation" to reflect the different serious offending contained
within the two offences.
- The
Crown submitted that there were two discrete offences committed that occurred as
a result of interwoven but distinct acts. The
Respondent fired at Constable
Crews with intent to cause grievous bodily harm thereby causing a wound to his
arm. This was a serious
offence and this was complete once the wounding
occurred. Within seconds, a number of further acts occurred, including Constable
Crews firing three times and injuring no one and Detective Senior Constable
Roberts firing once in the direction of the Respondent,
but with the tragic
result that Constable Crews was fatally shot in the neck. The sentencing Judge
expressly found that Detective
Senior Constable Roberts had no criminal
liability for firing the fatal shot, so that it was the Respondent who bore the
entire criminal
liability for the shot that caused the death of Constable Crews.
- The
Crown submitted there were separate acts and separate consequences for which the
Respondent was entirely responsible. To the extent
that the sentencing Judge
considered that the criminal conduct was common to both offences, the Crown
submitted that her Honour omitted
to acknowledge that there were in fact not
just different consequences, but also different acts, albeit that Detective
Senior Constable
Roberts was responding to the same bullet being fired by the
Respondent that caused the wounding.
- The
Crown submitted that the nature and seriousness of the wounding offence were
such that the sentence for manslaughter could not
sufficiently comprehend the
criminality involved in the s.33(1)(a) offence.
- It
was submitted for the Respondent that the two offences formed part of a single
episode of criminality with common factors, so that
it was open to the
sentencing Judge to impose entirely concurrent sentences in the circumstances of
the case.
Decision
- Questions
of concurrency and accumulation are, subject to the application of established
principle, discretionary: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
at 67 [7].
- Sentences
are not to be made concurrent simply because of the similarity of the conduct or
because it may be seen as part of the one
course of criminal conduct. Rather,
the question to be asked is - can the sentence for one offence encompass the
criminality of all
the offences?: R v Jarrold [2010] NSWCCA 69 at [56].
- If
the sentence for one offence can comprehend and reflect the criminality of the
other, then the sentences ought to be concurrent,
otherwise there is a risk that
the combined sentences will exceed that which is warranted to reflect the
totality of the two offences:
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R
41 at 47 [27]. If this is not the case, the sentence should be at least
partially cumulative otherwise there is the risk that the total sentence
will
fail to reflect the total criminality of the two offences. This is so,
regardless of whether the two offences represent two
discrete acts of
criminality or can be regarded as part of a single episode of criminality:
Cahyadi v R at 47 [27]; R v XX [2009] NSWCCA 115; 195 A Crim R 38
at 48-49 [52].
- Public
confidence in the administration of justice requires sentencing courts to avoid
any suggestion that what is in effect being
offered is some kind of a discount
for multiple offending: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at
164-165 [18].
- We
accept the Crown's submission in support of this ground of appeal. Each of the
Respondent's offences was a serious one carrying
a maximum penalty of 25 years'
imprisonment. The sentencing Judge determined that each offence was objectively
serious. Although
there was but a short period of time that passed between the
offences, they were distinct offences caused by different bullets causing
very
different consequences.
- We
accept that the manslaughter offence was the more serious offence in the
circumstances, which required a lengthier sentence having
regard as well to the
offence on the Form 1.
- The
nature and seriousness of the wounding offence was such that the sentence for
manslaughter could not sufficiently comprehend the
criminality involved in the
s.33(1)(a) offence. A measure of accumulation was necessary.
- The
Crown has made good the third ground of appeal.
Ground 4 - The Sentences Are Manifestly Inadequate
Submissions of the Parties
- The
Crown submitted that the errors asserted in the first three grounds of appeal
would feed in to the fourth ground of appeal, thereby
fortifying a conclusion
that the sentences imposed were manifestly inadequate.
- Accepting
the unusual circumstances of this case and the absence of other sentencing
decisions which may assist the sentencing process,
the Crown submitted that the
circumstances of these offences were such that the sentences ultimately imposed
were manifestly inadequate.
- The
Crown submitted that the Respondent was in his garage area, having just been
engaged in some capacity in a drug deal involving
cocaine with other persons and
that he was in possession of an unauthorised firearm. The offences occurred only
about one year after
the Respondent's parole period had expired on a sentence
for supplying a commercial quantity of a prohibited drug. The victim was
a
police officer acting in the execution of his duty. The sentencing Judge
accepted that this was an aggravating feature for both
offences. The victim's
firearm was holstered. Due warning was rendered to the Respondent with the
approaching police officers identifying
themselves clearly as police. None were
disguised. Within the range of scenarios of persons acting in misconceived
self-defence,
the Crown submitted that this must be regarded as a more serious
example than that found by the sentencing Judge.
- The
Crown pointed to the need for the sentence on the manslaughter count to take
into account as well the offence on the Form 1 which
was independently
serious.
- It
was submitted for the Respondent that the Crown had not made good the claim of
manifest inadequacy in the circumstances of the
case.
Decision
- A
claim of manifest inadequacy requires the Court to be satisfied that the
sentences imposed at first instance were unreasonable or
plainly unjust:
Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].
- In
this case, express errors have been established in accordance with the grounds
of appeal which have been addressed. These findings
may be called in aid by the
Crown to support and explain how sentences were imposed which are said to be
manifestly inadequate.
- The
police officers in the present case, including Constable Crews, were acting in
the lawful discharge of their duty to execute a
search warrant on the premises
in question. The police officers approached slowly and were not disguised.
Detective Senior Constable
Roberts was holding a battering ram. Constable Crews
was holding a folder containing papers. The situation was markedly different
to
the Respondent's earlier experience where masked men had apparently approached
holding cricket bats. Even then, the masked men
fled when challenged by the
Respondent. It was not unusual that police executing a search warrant were
wearing plain clothes. The
Respondent was aware from his own experience that
police executing a search warrant may be dressed in plain clothes.
- A
loud announcement was made indicating that they were police and this was heard
by the Respondent. The Respondent had just been involved
in activities related
to drug supply. He was carrying an unauthorised loaded firearm at that time and
in that context. The Respondent
crouched holding the pistol in the firing
position. No police officer was holding a firearm at that time. The area was
well lit.
Constable Crews was less than four to five metres away from the
Respondent, who would have had a clear vision of him holding only
the folder of
papers.
- Once
again, police identified themselves and called upon the Respondent to drop his
weapon. The Respondent chose to resort to immediate
use of the firearm, shooting
it at Constable Crews with intent to inflict grievous bodily harm. What happened
thereafter was entirely
predictable, and involved understandable acts where
police officers in the execution of their duty, having loudly and clearly
announced
their presence, came under fire from the Respondent in the manner
which occurred.
- This
was a most serious example of the crime of manslaughter. For reasons explained
in the context of the first ground of appeal,
the fact that the Respondent did
not know or believe that the persons in the garage were police officers is not
relevant to an assessment
of the objective gravity of the manslaughter offence.
- The
sentencing Judge found that the aggravating factor in s.21A(2)(a) operated as it
was reasonably foreseeable that the persons were police officers (see [38]
above). This approach is consistent with
the common law principle that where an
offender knows or ought to have known that the victim was discharging a public
duty, such
as a police officer acting in the execution of duty, this will
operate as an aggravating factor on sentence and will attract as well
considerations of specific and general deterrence: Director of Public
Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 at
314-315 [50]- [52].
- It
was accepted by the Crown that the Respondent did not know that the men in the
garage were police officers, as if he did there
would be no excessive
self-defence operating to render the charge of manslaughter appropriate in lieu
of the charge of murder. That
does not mean that it could not be taken into
account that the Respondent "ought to have known" that the men were
police officers. There is nothing inconsistent in taking this into account as an
aggravating feature of the offence
of manslaughter and it is worth reiterating
that the approach of the sentencing Judge in finding that the aggravating factor
in s.21A(2)(a) applied because the Respondent "ought reasonably to have
foreseen the possibility" that Constable Crews was a police officer was not
challenged in this Court.
- This
Court has emphasised the gravity of crimes committed against serving police
officers and the need for specific and general deterrence
in the imposition of
sentences.
- In
R v Hamilton (1993) 66 A Crim R 575, Gleeson CJ (Hunt CJ at CL and
Ireland J agreeing) said at 581:
"... I should make it clear that offences against s 33B, which
make it unlawful to use an offensive weapon or instrument with intent
to prevent
lawful apprehension, are regarded by the Court extremely seriously. It is
incumbent upon the Court, in dealing with offences
of this nature, to show an
appropriate measure of support for police officers who undertake a difficult,
dangerous and usually thankless
task. The risks that were run by the police
officers who were involved in the present case were substantial."
- In
Re Attorney General's Application Under Section 37 of the Crimes (Sentencing
Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515; 137 A Crim R 196 at
203-204, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) cited
this passage from R v Hamilton. In the course of that judgment, Spigelman
CJ said at 203 [22]:
"Offences involving assault of police officers in the execution
of their duty are serious offences requiring a significant element
of deterrence
in the sentences to be imposed. The community is dependent to a substantial
extent upon the courage of police officers
for protection of lives, personal
security and property. The Courts must support the police in the proper
execution of their duties
and must be seen to be supporting the police, and
their authority in maintaining law and order, by the imposition of appropriate
sentences in cases where assaults are committed against police."
- The
Chief Justice continued at 203-204 [26] and [28]:
"[26] As the facts of the cases summarised for the Court in the
course of the present application indicate, significant risks are
run by police
officers throughout the State in the normal execution of their duties. The
authority of the police, in the performance
of their duties, must be supported
by the courts. In cases involving assaults against police there is a need to
give full weight
to the objective of general deterrence and, accordingly,
sentences at the high end of the scale, pertinent in the light of all the
circumstances, are generally appropriate in such cases.
...
[28] The importance of supporting the police has been recognised by the
Parliament in the recently enacted s21A, which identifies in s21A(2)(a), as the
first of the list of aggravating factors, the fact that the victim was a police
officer or one of a number of other persons
performing public functions. This
will be of significance for other offences against police, but the offence
presently under consideration
is, of course, specifically concerned with
police."
- These
statements were made in the context of an application for a guideline judgment
for the offence of assault police. The principles
expressed are clearly apt to a
case such as this, where greater violence is used (with fatal consequences)
against a police officer
in the execution of his duty.
- The
sentencing Judge was referred to, and applied, the following statement by
Spigelman CJ (Hidden and Buddin JJ agreeing) in R v Penisini [2004]
NSWCCA 339 at [20]:
"The courts will, and do, give great weight to the protection of
members of the police force by reason of the fact that in the course
of their
duties, they are called upon to place themselves in danger and do so for the
benefit of the community at large. That is
why the courts have always accepted
that the fact that the victim was a police officer is a substantially
aggravating factor."
- These
considerations are at the forefront of sentencing decisions for offences such as
those committed by the Respondent.
- The
Form 1 offence of possession of a prohibited firearm, as the sentencing Judge
acknowledged at [42]-[43] of the remarks on sentence,
required greater weight to
be given both to the need for personal deterrence and to the community's
entitlement to exact retribution,
and in that way to increase the sentence that
would otherwise be appropriate for the manslaughter offence: Re Attorney
General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act
1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at [39]- [42].
- Although
no separate and distinct penalty may be imposed for the Form 1 offence, a
"longer, and in some cases significantly longer" sentence may be imposed
for the principal offence to which the Form 1 attaches, so as to demonstrate the
greater need for personal
deterrence and retribution: Abbas, Bodiotis, Taleb
and Amoun v R [2013] NSWCCA 115 at [22]- [23].
- In
approaching the Form 1 matter in this case, it is necessary to keep in mind
principles such as those summarised in R v AZ [2011] NSWCCA 43; 205 A
Crim R 222 at 234 [73]:
"The legislature views possession of such an item seriously. The
policy of the legislature evinced by the enactment of the offence
in s 7(1) is
to deter and punish possession of firearms per se: R v Krstic [2005]
NSWCCA 391 at [14]. The courts must seek to implement the legislative policy to
control the possession of firearms in the community 'by honest citizens
and not
simply to disarm the criminally minded' R v Tolley [2004] NSWCCA 165 at
[53]. As it happens, the Respondent was amongst the ranks of 'the criminally
minded' through his drug supply activities."
- It
might be said that the present Respondent was also amongst the ranks of "the
criminally minded", given the circumstances in which he chose to arm himself
on this occasion.
- The
fact that the pistol was loaded bore upon the seriousness of the Form 1 offence.
The fact that the Respondent claimed that he
possessed the loaded pistol for his
own protection was not a matter of any real mitigation since the policy of the
legislature was
to act as a deterrent and to punish possession of a pistol per
se. The rule of law, and the authority of courts, depend upon the
proposition
that persons do not, by illegal means, take their protection into their own
hands: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320-321 [88].
- Considerations
such as these pointed to the seriousness of the Form 1 offence, so that the
taking into account of that matter called
for a significantly longer sentence
being imposed for manslaughter.
- The
s.33(1)(a) offence was itself objectively grave, with the issue canvassed in the
context of the second ground of appeal indicating that a lengthier
sentence was
warranted on that count.
- As
noted earlier, the Respondent had little operating in his favour subjectively.
The 10 per cent discount for his pleas of guilty
and recognition of a measure of
remorse operated in his favour. However, he could not claim the immaturity of
youth as a factor in
the commission of these offences. In his early 50s, he had
served a period of imprisonment for a serious drug supply offence. He
had
recently completed his parole period. Having not been deterred from crime, he
continued to be involved in drug activity and had
armed himself, with the tragic
and disastrous consequences which came to pass on the evening of 8 September
2010.
- We
are satisfied that the sentences imposed were manifestly inadequate so that the
fourth ground of appeal has been made good.
Discretionary Factors and Resentencing
- If
error was demonstrated, Mr Ledinh submitted that the Court, in the exercise of
discretion, should not resentence the Respondent.
- It
has been said that the primary purpose of Crown appeals against sentence under
s.5D Criminal Appeal Act 1912 is to lay down principles for the
governance and guidance of courts having the duty of sentencing convicted
persons, so that this
Court, in the exercise of its jurisdiction under s.5D, had
a residual discretion to decline to interfere with a sentence even though the
sentence is erroneously lenient: Green v The Queen; Quinn v The Queen
[2011] HCA 49; 244 CLR 462 at 465-466 [1]- [2]. This discretion may be exercised
for reasons other than double jeopardy: R v JW [2010] NSWCCA 49; 77 NSWLR
7 at 24 [92], 25 [95], 33 [150].
- In
support of the exercise of discretion, Mr Ledinh sought to emphasise the level
of the Respondent's remorse. No affidavit or other
evidentiary material was
placed before the Court on the question of discretion or resentencing.
- We
do not consider that there is any discretionary basis for this Court to decline
to intervene and to resentence the Respondent.
The issues ventilated in this
appeal include matters of principle, and the conclusion has been reached that
substantially different
sentences ought be imposed upon the Respondent. It is in
the interests of the administration of justice that the Court proceeds to
resentence the Respondent.
- The
objective gravity of the manslaughter offence is substantial and greater than
that characterised by the sentencing Judge. There
are limited subjective factors
to be taken into account in the Respondent's favour. In addition, the nature and
circumstances of
the offence and the identity and occupation of the victim
require a significant element of specific and general deterrence in the
sentence
to be passed. Further, the serious offence included on the Form 1 must be
reflected in the sentence imposed.
- For
the offence of manslaughter, taking into account the Form 1 matter, and before
application of the 10 per cent discount for the
plea of guilty, a head sentence
of 18 years' imprisonment is appropriate.
- Allowing
for the 10 per cent discount, the Respondent will be sentenced on this count to
a term of imprisonment of 16 years and 2
months.
- For
the offence of wounding with intent to cause grievous bodily harm, before
application of the 10 per cent discount for the plea
of guilty, a sentence of
imprisonment for 9 years is appropriate.
- Allowing
for the 10 per cent discount (and with some rounding), the sentence imposed for
the s.33(1)(a) offence will be one of imprisonment
for 8 years and 1 month.
- Having
regard to relevant principles with respect to accumulation, concurrency and
totality, there ought be accumulation of 1 year.
- Subject
to what follows concerning the effect of accumulation, we agree with the
conclusion of the sentencing Judge that special circumstances
are not
demonstrated in this case so as to warrant any adjustment of the ratio between
the non-parole period and head sentence for
each offence.
- As
a different view has been formed in this Court on the issue of accumulation, it
is necessary to consider whether this additional
factor warrants a finding of
special circumstances and a modification in the statutory ratio: Hejazi v R
[2009] NSWCCA 282; 217 A Crim R 151 at 157 [35]- [36].
- A
minimum custodial component of 13 years is proposed against the overall
effective sentence of 17 years and 2 months. That represents
74.7 per cent of
the overall term. No finding of special circumstances is required. The sentences
to be imposed upon the Respondent
will see a significant period of conditional
liberty being available upon the expiration of the effective non-parole period.
In our
view, no lesser effective non-parole period than one comprising 13 years
is appropriate as the period of mandatory custody for these
crimes having regard
to all the purposes of punishment: R v Simpson [2001] NSWCCA 534; 53
NSWLR 704 at 717 [59]; Hejazi v R at 157 [36].
- The
Respondent has been in custody since 8 September 2010 and it is appropriate that
the first operative sentence date from that day.
- The
Court makes the following orders:
(a) Crown appeal allowed;
(b) sentences imposed in the Supreme Court on 15 March 2013 are quashed;
(c) in their place,
(i) for the offence of wounding with intent to cause grievous bodily harm,
the Respondent is sentenced to imprisonment comprising
a non-parole period of 6
years commencing on 8 September 2010 and expiring on 7 September 2016 with a
balance of term of 2 years
and 1 month commencing on 8 September 2016 and
expiring on 7 October 2018,
(ii) on the count of manslaughter, and taking into account the offence on the
Form 1, the Respondent is sentenced to imprisonment
comprising a non-parole
period of 12 years commencing on 8 September 2011 and expiring on 7 September
2023, with a balance of term
of 4 years and 2 months commencing on 8 September
2023 and expiring on 7 November 2027,
(d) the earliest date upon which the Respondent will be eligible for release
on parole is 8 September 2023.
**********
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URL: http://www.austlii.edu.au/au/cases/nsw/NSWCCA/2013/195.html
