Citation: Regina v Nardoni [1999] NSWSC 1097
Court: Supreme Court of New South Wales (Common Law Division)
Date: 12 November 1999
Judge(s): Michael Grove J
Background
The accused, a 26-year-old man, pleaded guilty to the manslaughter of his 18-year-old de facto partner. The couple lived together in a Housing Commission bedsitter in Warrawong and had a history marked by alcohol and drug use, unemployment, and prior domestic violence. The accused had previously appeared at Port Kembla Local Court in May 1997 for assaulting the victim and was placed on a recognizance to be of good behaviour for two years.
On 25 July 1997, the couple spent the day drinking heavily with an acquaintance. By late afternoon, the accused violently attacked the victim in their flat. A neighbour witnessed the assault and escorted the victim to a women's refuge, but the victim later left and was taken by police to a friend's flat, where she died overnight. Post-mortem examination confirmed that blows to the right side of her head caused a depressed skull fracture and ultimately death, with alcohol and cannabis contributing.
The accused initially maintained various explanations for the events, citing his intoxication and impaired memory. He ultimately accepted, through his counsel at sentencing, that the evidence of witnesses should be preferred over his own recollection, and acknowledged that his attack on the victim caused her death.
Legal Issues
- What is the appropriate sentence for manslaughter by unlawful and dangerous act, where the offending occurred in a context of severe intoxication and prior domestic violence?
- What weight should be given to genuine rehabilitation and remorse when balanced against the objective seriousness of the offence?
- Whether special circumstances existed under the Sentencing Act to justify extending the additional (parole) term beyond the proportion produced by the standard statutory formula.
Decision
Grove J accepted the guilty plea as an acknowledgment that the accused's unlawful and dangerous battering of the victim caused her death. The indictment did not allege an intention to cause really serious injury, and no single blow could be identified as the fatal one. Nevertheless, the court was satisfied that the accused's violent attack was causative of death, and the severity of the assault was established through witness evidence.
The court identified several aggravating features. The offence was committed while the accused was subject to a current recognizance specifically arising from a prior assault on the same victim. A human life had been extinguished. Although the accused's prior record was not described as gross, it included convictions across multiple states and disentitled him to leniency that might otherwise have been available.
Mitigating factors carried significant weight. The accused had, over approximately two years on remand and bail, undertaken substantial rehabilitation efforts. The court noted his completion of literacy and anger management programs, maintenance of employment, a supportive relationship, and testimonials from a reverend and others attesting to genuine personal change. These factors led Grove J to conclude that a notably lower sentence than the objectively appropriate term for a fatal drunken assault was warranted.
The court found special circumstances justifying a departure from the standard sentencing formula, specifically to extend the parole (additional) term. Given the accused's long and unpromising background, Grove J considered an extended period of supervised parole to be desirable to support and test his rehabilitation.
Orders Made
- The accused was sentenced to penal servitude for five years (reduced from a starting point of six years, accounting for pre-sentence custody of one year and 32 days).
- Minimum term: two years, commencing 12 November 1999 and expiring 11 November 2001.
- Additional term: three years, commencing 12 November 2001.
- Eligible for parole on 12 November 2001.
Key Takeaways
- Manslaughter by unlawful and dangerous act carries significant objective gravity where death results from a sustained domestic assault, particularly when the accused was already subject to a recognizance for prior violence against the same victim.
- Genuine and evidenced rehabilitation can justify a substantial reduction from the sentence otherwise warranted by the objective circumstances of the offence, though it does not override the need for the sentence to reflect that a life has been taken.
- Special circumstances under the Sentencing Act can be established where an offender's "long unpromising background" makes an extended period of supervised parole appropriate, even where the offender has demonstrated rehabilitative progress.
- Pre-sentence custody is taken into account in calculating the total sentence, and Grove J reduced the head sentence from six to five years to reflect time already served.
- A victim impact statement was read by the court but, consistent with authority at the time, its contents were not used to increase the penalty imposed.
Legislation and Cases Referenced
Legislation:
- Sentencing Act (NSW), s 5(2) (formula for minimum and additional terms)
Cases:
- No cases were cited in the text provided.