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Supreme Court 28 May 1999

R v TM

[1999] NSWSC 504

Assault & violenceHomicide
SENTENCING JUVENILE OFFENDER PLEA OF GUILTY TO MANSLAUGHTER KNIFING DURING STREET ATTACK

Citation: R v TM [1999] NSWSC 504
Court: Supreme Court of New South Wales
Date: 28 May 1999
Judge(s): Hidden J

Background

The offender, who was seventeen years old at the time of the offence, pleaded guilty to the manslaughter of Shane Peter Greenacre at Villawood on 19 February 1997. The Crown accepted the plea in satisfaction of an original murder indictment. The basis of the plea was that the offender caused the deceased's death by an unlawful and dangerous act.

The killing occurred during a group street attack. The offender and a group of companions returned to a hotel to confront a woman following a trivial argument. The deceased, who was with that woman and was unknown to the group, fled across the road, was chased, and was stabbed three times in the right thigh. One wound severed the femoral artery, causing his death.

The offender carried the knife habitually, claiming it was for personal protection. Forensic evidence raised the possibility that more than one knife was involved, though the offender had accepted sole responsibility in his electronically recorded interview and did not depart from that position throughout the proceedings.

  • What sentence appropriately reflected the gravity of a manslaughter committed during a group attack by a juvenile offender who had since demonstrated genuine rehabilitation?
  • Whether victim impact statements could be taken into account in determining sentence in a homicide matter.
  • Whether special circumstances existed under s 5(2) of the Sentencing Act justifying a departure from the standard ratio between minimum and additional terms.

Decision

Hidden J characterised the offending as serious, describing it as mindless violence inflicted on a man who had done nothing to provoke the attack. The court accepted, however, that the offender did not intend to kill or seriously injure the deceased, and sentence proceeded on the basis that the death resulted from an objectively dangerous unlawful act.

On victim impact statements, the court expressed deep sympathy to the deceased's family but declined to treat the victim impact statement as a factor in determining sentence. Hidden J followed the approach of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76, which had been consistently applied by the Supreme Court in homicide sentencings.

The court found genuine grounds for optimism about rehabilitation. The offender had the support of a caring family, had undertaken education and vocational courses while in custody, had developed real insight into the seriousness of his offending, and had received positive assessments from Juvenile Justice officers. His remorse was accepted as genuine.

Hidden J found special circumstances under s 5(2) of the Sentencing Act, reasoning that an extended additional term was warranted so that the offender, who had not yet demonstrated his capacity outside a custodial environment, would remain subject to supervision and the sanction of parole after release. The sentence was to be served in a Juvenile Justice Centre.

Orders Made

  • The offender was sentenced to penal servitude for five years, comprising a minimum term of three years commencing 16 April 1997 and expiring 15 April 2000, and an additional term of two years commencing 16 April 2000 and expiring 15 April 2002.
  • The court directed that the remainder of the sentence be served in a Juvenile Justice Centre.

Key Takeaways

  • Sentencing a juvenile offender with strong rehabilitation prospects for a serious crime requires a balance between reflecting the objective gravity of the offence and promoting the offender's rehabilitation, as affirmed by reference to R v GDP (1991) 53 A Crim R 112.
  • In homicide sentencings before the Supreme Court, victim impact statements do not form a basis for determining the length of sentence, consistent with the approach in R v Previtera (1997) 94 A Crim R 76.
  • Special circumstances justifying an extended additional term can be established where a young offender, however promising, has yet to demonstrate their capacity to function outside a custodial environment.
  • A plea of guilty to manslaughter on the basis of an unlawful and dangerous act does not require proof that the offender intended to kill or cause serious harm, but the objective dangerousness of the conduct remains a significant sentencing consideration.
  • Positive conduct and maturation during a lengthy pre-sentence custodial period, including vocational training, remorse, and family support, are relevant mitigating factors in sentencing juvenile offenders.

Legislation and Cases Referenced

Legislation
- Sentencing Act (NSW), s 5(2)

Cases
- R v Previtera (1997) 94 A Crim R 76
- R v GDP (1991) 53 A Crim R 112