Citation: Regina v Scott Tikao Lewis [1999] NSWSC 131
Court: Supreme Court of New South Wales (Criminal Division)
Date: 1 March 1999
Judge(s): Sully J
Background
The prisoner was charged with the murder of a man at the Mawson Park Tavern in Campbelltown in the early hours of 4 February 1994. The victim, a complete stranger to the prisoner, was ejected from the tavern and became the subject of a sustained group assault in the bottle shop driveway outside. The victim died on 17 February 1994, approximately a fortnight after the assault.
The prisoner had originally been convicted of murder by a jury in 1996, but the Court of Criminal Appeal quashed that conviction and ordered a retrial. At the retrial on 15 February 1999, the prisoner pleaded not guilty to murder but offered a plea of guilty to manslaughter. The Crown accepted that plea in full discharge of the entire indictment, which had contained five counts.
The sentencing proceedings ran across the week of 22 to 26 February 1999. The prisoner gave extensive sworn evidence, providing the only detailed account of how the fatal events unfolded. He had been in continuous custody since his arrest on 8 February 1995.
Legal Issues
- What was the appropriate head sentence for manslaughter in the circumstances of a group assault causing death?
- Whether the facts supported the finding that this was a serious and sustained assault, notwithstanding that the prisoner did not inflict the stab wounds that were the immediate cause of death.
- Whether special circumstances existed to justify departing from the standard one-third ratio between additional term and minimum term under the sentencing legislation then in force.
- What weight to give to time already served in custody, subjective mitigating factors, and the prisoner's personal circumstances including rehabilitation prospects and safety concerns in custody.
Decision
Sully J accepted that the stab wounds to the victim's legs were the immediate cause of death, producing haemorrhagic shock and multi-organ failure. The sentencing proceeded on the agreed basis that the prisoner did not inflict those wounds and was unaware at the time that they had been inflicted. Nevertheless, the court drew the inference that the overall assault was both serious and sustained. The prisoner's own conduct included elbowing the victim in the back of the head, punching him, knocking him to the ground, and kicking him five or six times while he lay face down, before other club members joined in and began stomping on the victim.
The court identified several significant aggravating factors. The victim was a complete stranger who had done nothing to provoke the prisoner beyond some drunken verbal abuse. The prisoner participated in the assault while already on parole and conditional bail for earlier offences. These features weighed against the prisoner's subjective case in mitigation.
On the question of special circumstances, Sully J found that two particular matters justified apportioning the sentence with an additional term exceeding one-third of the minimum term. First, the court considered it important to preserve the prisoner's marriage as a genuine support for rehabilitation, having found the prisoner's wife to be a forthright and credible witness. Second, there was a documented need to protect the prisoner from revenge attacks by fellow inmates, and a longer additional term would facilitate reclassification and transfer to a safer facility. The court accordingly divided a total sentence of 9 years into a minimum term of 6 years and an additional term of 3 years.
The minimum term was backdated to 8 February 1995 to credit the approximately four years already served in continuous custody.
Orders Made
- The prisoner was sentenced to penal servitude for 9 years for manslaughter.
- The sentence was apportioned as a minimum term of 6 years (commencing 8 February 1995, expiring 7 February 2001) and an additional term of 3 years.
- The prisoner became eligible for parole on 8 February 2001, from which date the additional term would run.
- The court recommended urgent consideration of reclassification and all steps to maximise the prisoner's physical protection and necessary medical treatment while in custody.
Key Takeaways
- A guilty plea to manslaughter accepted by the Crown in full discharge of a murder indictment, entered at retrial following a quashed conviction, resolved the entire proceedings without the remaining counts being considered.
- Where a defendant participates in a group assault that results in death, a sentencing court may hold that participant responsible for the overall gravity of the assault even if the precise lethal act (here, the stabbings) was committed by others and was unknown to the defendant at the time.
- Special circumstances under the then-applicable sentencing legislation could be established by a combination of rehabilitation prospects linked to family support and genuine physical safety risks within the prison system, each justifying a longer supervisory additional term.
- The Supreme Court backdated the minimum term to the date of first arrest and continuous custody, ensuring the prisoner received full credit for the approximately four years already served before sentence was formally imposed at the retrial.
- Participation in a group assault while on parole and conditional bail simultaneously was treated as a material aggravating factor in fixing the appropriate head sentence.
Legislation and Cases Referenced
Legislation:
- Sentencing provisions then applicable in New South Wales governing the apportionment of sentences between minimum and additional terms, including the statutory one-third ratio and the "special circumstances" exception (the specific Act was not cited by name in the text provided).
Cases:
- No cases were cited by name in the portions of the judgment provided.