Citation: Regina v Papandrea [2000] NSWCCA 499
Court: NSW Court of Criminal Appeal
Date: 24 November 2000
Judge(s): Sully J (principal judgment), Whealy J, Howie J
Background
The appellant was charged with the murder of a man named Janjic, allegedly committed on 15 May 1997. He was tried before Studdert J and a jury in the Supreme Court. On the fifth day of trial, he sought to be re-arraigned and, while maintaining his not guilty plea to murder, offered a plea to manslaughter. The Crown accepted that plea in full satisfaction of the indictment.
The killing involved a shotgun discharge at close range, no more than one metre from the deceased. Studdert J made detailed factual findings, including that the weapon required the hammer to be cocked with heavy pressure and the trigger pulled with six to seven pounds of force, and that the shot tracked from right to left and backwards downwards.
Studdert J found the appellant was not a credible witness and rejected parts of his evidence, but ultimately found it was not the appellant who had loaded the weapon. His Honour sentenced the appellant to nine years' penal servitude, structured as a minimum term of six years and an additional term of three years, having found special circumstances under the then-applicable Sentencing Act 1987.
Legal Issues
- Whether Studdert J erred in defining the manslaughter as an unlawful and dangerous act, given the factual findings made at sentence
- Whether the sentencing judge's statement that the Crown's acceptance of the manslaughter plea meant the appellant "did not shoot the deceased either with intention to kill or intent to cause bodily harm" was an error of reasoning
- Whether the overall sentence of nine years' penal servitude was outside the range reasonably available in the circumstances
Decision
The Court of Criminal Appeal rejected the submission that Studdert J's definition of the relevant unlawful and dangerous act was flawed. His Honour had defined the manslaughter as the deliberate cocking and firing of a loaded shotgun pointed at the deceased at close range, even though the precise reason for that action remained unknown. Sully J found no error of law or fact in that definition, and accepted the characterisation of the act as "unquestionably dangerous."
On the statement concerning intent, Sully J considered that a reading of the remarks on sentence as a whole made the intended meaning clear. The passage immediately following the contested statement confirmed that the guilty plea to manslaughter acknowledged the act of firing was deliberate, even if unaccompanied by the intent necessary to establish murder. There was, accordingly, no error in the judge's approach to intent.
As to the sentence itself, the Court acknowledged that manslaughter sentencing is always "at large" given the enormous variety of circumstances in which the offence can arise. Sully J was satisfied that Studdert J had correctly identified the objective gravity of the offence, properly weighed the subjective matters in the appellant's favour, and arrived at a sentence within the range reasonably available. No error vitiating the sentence was established.
Orders Made
- Leave to appeal granted
- Appeal against sentence dismissed
Key Takeaways
- In dismissing the appeal, the Court of Criminal Appeal confirmed that manslaughter by an unlawful and dangerous act can be established even where the precise motivation for the act is unknown, provided the physical act itself was deliberate and objectively dangerous.
- A sentencing judge's remarks must be read in context and as a whole: an apparently broad or ambiguous statement about intent does not constitute error if the overall passage makes the correct approach plain.
- Manslaughter carries a maximum of 25 years' penal servitude under the legislative framework then in force, and that maximum sets the parameters within which any particular sentence is calibrated.
- The broad variability of manslaughter sentencing reflects the almost infinite variety of circumstances attending the offence; no single benchmark governs, and the appellate question is whether the sentence falls outside the range reasonably available, not whether it might be described as severe or lenient.
- No error was established merely because a sentence could be described as heavy; the Court's function on appeal is to identify a vitiating error, not to substitute its own view of the appropriate penalty.
Legislation and Cases Referenced
Legislation:
- Sentencing Act 1987 (NSW) (provisions relating to minimum and additional terms, and special circumstances)
Cases:
- No specific cases were cited by name in the available text of the judgment.