Citation: R v Guiseppina Esposito [2000] NSWSC 284
Court: Supreme Court of New South Wales, Criminal Division
Date: 23 March 2000
Judge(s): Dunford J
Background
The prisoner pleaded guilty to the manslaughter of Maxwell Andrews at Kings Cross on 24 April 1995. The plea was entered after the Court of Criminal Appeal had quashed an earlier jury verdict of murder and ordered a new trial. The Crown accepted the manslaughter plea in full settlement of the indictment.
The facts, agreed between the parties, established that the prisoner had consumed a large quantity of Clonazepam (a tranquilliser), methadone, alcohol, and possibly cannabis on the day in question. Blood testing showed her Clonazepam level was up to nine times the accepted toxic concentration. She, along with two male associates, encountered the deceased at a nearby hotel and followed him down William Street. A brief struggle occurred at a street corner, after which the deceased collapsed with a fatal stab wound to the chest. That evening the prisoner sold what appeared to be the deceased's gold rings and used the proceeds to purchase heroin.
The prisoner denied any recollection of the events. Expert pharmacological evidence indicated that her drug intake could have caused a form of amnesia and may have significantly impaired her appreciation of consequences, though the expert would not go further than a tentative conclusion on that point. The basis of the manslaughter plea was that holding a knife pointing at the deceased's chest constituted an unlawful and dangerous act, and the plea negatived any intention to kill or inflict grievous bodily harm.
Legal Issues
- What is the appropriate sentence for manslaughter by unlawful and dangerous act, where the offender was heavily drug-affected and claims no recollection of the killing?
- What weight should be given to the guilty plea, drug intoxication, and the prisoner's prospects of rehabilitation?
- Whether special circumstances existed under s 5(2) of the Sentencing Act 1989 to justify a longer-than-usual additional term (that is, an extended period of supervised parole relative to the minimum term).
Decision
Dunford J characterised the offending as serious, noting that manslaughter always involves the unlawful killing of another person. The deceased was a stranger to the prisoner, was walking down the street minding his own business, and was targeted for the purpose of robbery to fund a heroin purchase. These circumstances called for a substantial sentence despite the various subjective matters raised in mitigation.
On the question of drug intoxication, the court found that although the prisoner was grossly affected by drugs at the time, this was not a mitigating factor. Her guilty plea was given genuine weight, as it was offered at the first available opportunity following the successful appeal. The plea was also treated as demonstrating contrition and remorse, notwithstanding the prisoner's claimed lack of memory.
The prisoner's background included a long history of drug dependence, significant prior criminal convictions, and limited rehabilitation. While she had completed computer training and worked competently in prison administration, urine testing in October 1999 showed she had resumed using tranquillisers. The court acknowledged some hope for her ultimate rehabilitation but found that, to date, her efforts had not been entirely successful.
Dunford J found special circumstances under s 5(2) of the Sentencing Act 1989, concluding that the prisoner would benefit from a significant period of supervised conditional liberty following her minimum term. This finding justified the court extending the additional (parole) term beyond the one-third of the total sentence that would otherwise apply.
Orders Made
- The prisoner was sentenced to imprisonment comprising a minimum term of eight years, deemed to have commenced on 26 April 1995, and an additional term of four years.
- Total sentence: twelve years, commencing 26 April 1995.
- Earliest eligible parole date: 25 April 2003.
Key Takeaways
- Manslaughter by unlawful and dangerous act arising from a robbery attempt on a stranger attracted a total sentence of twelve years (minimum eight years, additional four years), reflecting the inherent seriousness of any unlawful killing.
- Gross drug intoxication at the time of the offence was not treated as a mitigating factor by the sentencing court, even where expert evidence indicated significant cognitive impairment and a possible amnesia effect.
- A guilty plea entered at the first available opportunity following a successful appeal against a more serious conviction was accorded genuine mitigating weight, and was treated as evidence of contrition even where the offender maintained she had no memory of the events.
- Under s 5(2) of the Sentencing Act 1989, special circumstances may be established where an offender with a history of entrenched drug dependence and incomplete rehabilitation would benefit from an extended period of supervised parole, allowing the court to depart from the standard ratio between minimum and additional terms.
- Dunford J confirmed the well-established principle that comparative sentencing for manslaughter is of limited utility, because manslaughter arises from such varied circumstances that sentences in other cases provide little guidance.
Legislation and Cases Referenced
Legislation
- Sentencing Act 1989 (NSW), s 5(2)
Cases
- R v Maguire (Court of Criminal Appeal, 30 August 1995)
- R v Bryant [1999] NSWCCA 181
- R v Oinonen [1999] NSWCCA 310