Citation: Regina v Suters [2000] NSWSC 1116
Court: Supreme Court of New South Wales
Date: 1 December 2000
Judge(s): Greg James J
Background
The offender, a man aged 27 at sentencing, pleaded guilty to manslaughter arising from events in May 1992 when he was 19 years old. He and a companion had been induced by a neighbour of the deceased to participate in a planned burglary and robbery. The plan involved disabling the deceased with an anaesthetic if he was found at home, but when he was present, the offender's companion struck him repeatedly with a torch, causing the deceased to suffer a fatal heart attack.
The offender's role was limited to keeping lookout at the front of the premises and being available to assist his companion if needed. He did not participate in any violence. After the death, both men buried the body in bushland and took a small amount of money, a microwave oven, and a clock.
The offender was not charged until years after the killing. In 1994, evidence emerged linking him to the microwave oven, and fingerprint evidence from the deceased's vehicle also implicated him. The bulk of the facts used at sentencing derived from information the offender himself provided to police. He had originally faced a murder charge, which did not proceed after the true circumstances were clarified largely through his own cooperation.
Legal Issues
- What sentence was appropriate for an accessory to manslaughter who had a limited role, provided substantial assistance to authorities, and entered an early guilty plea?
- What weight should be given to the significant delay between the offence (1992) and sentencing (2000), including the offender's conduct during that period?
- How should parity be approached where the principal offender, charged only as an accessory after the fact, had received a recognisance rather than a custodial sentence?
- How should the principles in Ellis governing discounts for cooperation and contrition apply on these facts?
Decision
Greg James J accepted that manslaughter is a serious offence involving the felonious taking of a human life, with a maximum of 25 years imprisonment, but emphasised that the range of appropriate sentences is wide given the variety of circumstances that can give rise to the charge. His Honour rejected the Crown's submission that this offence was of relatively low objective seriousness, characterising it instead as serious given that it occurred in the context of a planned robbery and burglary. The subsequent disposal of the body and removal of property also weighed against minimising the offending.
Nonetheless, several factors substantially reduced the sentence that would otherwise have been warranted. The offender did not strike the blow, had not contemplated that violence would be used, and his lookout role was peripheral. His assistance to authorities was described as active, detailed, and provided in circumstances that may have involved personal danger. That cooperation had clarified the roles of co-offenders and contributed to the resolution of associated matters. His Honour applied the Ellis principles, recognising the guilty plea as early given that the original charge was murder, and treating the cooperation as the most material form of remorse and contrition the law provides for.
The question of parity complicated the sentencing exercise. The man who had actually struck the deceased was dealt with separately, on a charge of being an accessory after the fact only, and received a recognisance. His Honour acknowledged that the present offender had a more direct role in the primary offence, but held that it would produce a serious incongruity if honest disclosure of involvement led to harsher treatment than that received by the actual assailant. Applying the principles from Hodges and Postiglioni, some alignment with the co-offender's outcome was warranted.
His Honour also gave weight to rehabilitation, noting the worthy life the offender had lived in the eight-plus years since the killing, consistent with the High Court's emphasis in Dinsdale on rehabilitation when determining the precise form of penalty. A non-parole period was declined under s 45 of the Crimes (Sentencing Procedure) Act 1999 in light of the sentence length and the degree of rehabilitation already demonstrated.
Orders Made
- The offender was sentenced to two years imprisonment, to be served by way of periodic detention, commencing 9 December 2000.
- No non-parole period was set.
- The offender was directed to report to Tomago Detention Centre before 8:00 am on 9 December 2000, and thereafter every following weekend before 7:00 pm each Friday evening.
Key Takeaways
- Manslaughter arising in the context of a planned robbery and burglary was treated as a serious offence even where the individual offender had only an accessorial lookout role and did not participate in the violence.
- Substantial cooperation with authorities, including providing information that clarified co-offenders' roles and assisted investigations into related matters, attracted significant mitigation under the Ellis principles, particularly where that assistance carried potential personal risk.
- Parity considerations remain relevant even where co-offenders face different charges: the Supreme Court held it would produce a serious incongruity if the more honest offender were treated materially more harshly than the actual assailant who had received only a recognisance.
- A lengthy delay between the offence and sentencing, while not generating credit for the concealment itself, can be relevant to assessing rehabilitation demonstrated during that intervening period.
- Under s 45 of the Crimes (Sentencing Procedure) Act 1999, a court may decline to set a non-parole period when imposing periodic detention, particularly where sentence length and prior rehabilitation make it appropriate to do so.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 45, s 66
Cases
- Regina v Ellis (1986) 6 NSWLR 603
- Regina v Thomson & Houlton [2000] NSWCCA 309
- Dinsdale v The Queen [2000] HCA 54
- Regina v Hodges (1997) 95 A Crim R 85
- Postiglioni v The Queen (1997) 71 ALJR 875