Citation: [1999] NSWSC 647
Court: Supreme Court of New South Wales (Criminal Division)
Date: 2 July 1999
Judge(s): Sully J
Background
Two prisoners came before the Supreme Court for sentencing in connection with the death of a man at Artarmon on 19 May 1990. The death arose from a joint enterprise to which both prisoners were parties. The Crown had originally intended to try them together, but an application for a separate trial was made and granted on the basis of agreement between the Crown and both accused.
The first prisoner was tried before a jury in April 1999 on a charge of murder. The jury acquitted him of murder but found him guilty of manslaughter, appending a recommendation for leniency. The second prisoner was tried before a separate jury in May 1999 on the same charge of murder and was found guilty as charged.
The separation of the two trials produced what Sully J described as verdicts that, while not strictly legally inconsistent, were "certainly incompatible in a broad and practical sense." This created significant difficulties for the sentencing exercise.
Legal Issues
- Whether the order separating the trials had been appropriate, and what consequences flowed from it
- What sentence was appropriate for the first prisoner, convicted of manslaughter, having regard to both objective and subjective circumstances
- What sentence was appropriate for the second prisoner, convicted of murder, having regard to both objective and subjective circumstances
- Whether "special circumstances" under section 5(2) of the Sentencing Act 1989 (NSW) warranted an adjustment to the ratio between minimum and additional terms for either prisoner
Decision
Sully J reflected candidly on the decision to separate the two trials, expressing the view in hindsight that the trials ought not to have been separated. His Honour noted that the separation produced a succession of serious practical problems, including each prisoner being called as a witness in the other's trial, and ultimately resulting in two different juries returning verdicts that were incompatible in a practical sense.
On sentencing the first prisoner for manslaughter, Sully J balanced the objective gravity of the offending against subjective factors, including the jury's recommendation for leniency. His Honour imposed a sentence of penal servitude for six years, comprising a minimum term of four years and an additional term of two years, commencing 28 April 1999.
On sentencing the second prisoner for murder, Sully J described the exercise as "difficult in the extreme." His Honour took into account that the prisoner was a comparatively young man, and sought to balance the serious objective circumstances of a murder conviction against the need to avoid a crushing sentence. The sentence imposed was penal servitude for 13 years, comprising a minimum term of 10 years and an additional term of three years, backdated to 18 May 1999, with credit given for two months served in custody in 1997.
On the question of special circumstances under section 5(2) of the Sentencing Act 1989, Sully J found that the subjective features of neither prisoner's case required an additional term greater than that already imposed.
Orders Made
First prisoner (manslaughter):
- Convicted of manslaughter of the deceased
- Sentenced to penal servitude for 6 years: minimum term of 4 years commencing 28 April 1999 and expiring 27 April 2003; additional term of 2 years commencing 28 April 2003
Second prisoner (murder):
- Convicted of murder of the deceased
- Sentenced to penal servitude for 13 years: minimum term of 10 years commencing 18 May 1999 and expiring 17 May 2009; additional term of 3 years commencing 18 May 2009
- Recommendations made to the Commissioner of Corrective Services that the prisoner's classification be carried out urgently, that his placement facilitate maximum contact with his children, and that his detention minimise exposure to hardened criminals
Key Takeaways
- Sully J expressly stated that, with hindsight, the order separating the two trials was ill-advised, as it produced practically incompatible verdicts from two different juries on the same death arising from the same joint enterprise.
- The principles governing applications for separate trials, as stated in R v Middis (CCA, 1991), require an applicant to demonstrate that positive injustice would be caused by a joint trial; the mere agreement of the parties does not alone justify separation.
- Where two accused are tried separately for the same death, a sentencing court may be confronted with verdicts of different grades (manslaughter and murder) that create substantial difficulty in achieving coherent sentencing outcomes.
- Under section 5(2) of the Sentencing Act 1989 (NSW), special circumstances must be established before a court will extend the additional term beyond the standard ratio; subjective features alone did not satisfy that threshold on the facts here.
- In imposing the murder sentence, the Supreme Court balanced the objective gravity of the offence against the prisoner's relative youth and the need to avoid a disproportionately crushing outcome, arriving at a 13-year term with a 10-year minimum.
Legislation and Cases Referenced
Legislation:
- Evidence Act 1995 (NSW)
- Sentencing Act 1989 (NSW), s 5(2)
Cases:
- R v Middis (unreported, CCA, 27 March 1991)
- R v Fernando & anor (unreported, CCA, 14 April 1999)
- R v Georgiou (unreported, CCA, 25 May 1999)
- R v Beavan 69 WN (NSW) 141
- R v Twala (unreported, CCA, 4 November 1994)
- R v Isaacs (1997) ACrimR 587
- R v Chaouk (unreported, CCA, 17 August 1993)
- R v Brown & ors [1994] 1 AC 212
- R v Todd (1982) 2 NSWLR 517
- R v Whittaker (1928) 41 CLR 230
- R v Tappy [1960] VR 137
- R v Harris [1961] VR 236
- R v West [1979] Tas SR 1
- R v Meares (NSWCCA, 3 October 1997) 37 ATR 321
- R v Mihailovic & ors (NSWSC, 15 April 1991, unreported)
- R v Lowe (1984) 154 CLR 606
- R v Damon Ashley Cooper (unreported, CCA, 24 February 1998)
- R v Sefo and R v Seriano (unreported, 13 May 1998)