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Supreme Court 18 August 2000

R v Sandness

[2000] NSWSC 821

Assault & violenceHomicideDrugsTheft & property
CRIMINAL LAW SENTENCING MANSLAUGHTER

Citation: R v Sandness [2000] NSWSC 821
Court: Supreme Court of New South Wales, Common Law Division
Date: 18 August 2000
Judge(s): Dunford J

Background

The prisoner pleaded not guilty to the murder of an 80-year-old man but changed his plea to guilty of manslaughter on the second day of trial. The Crown accepted that plea in full satisfaction of the indictment. The victim was attacked in his own bedroom on 30 December 1997 and died in hospital ten days later from severe head injuries.

The prisoner had been in a relationship with the victim's granddaughter, both of them heroin and amphetamine addicts. The two went to the deceased's home to steal money, primarily to fund drug purchases. The prisoner armed himself with a half brick from the backyard, removed his thongs to move quietly, and entered the premises. When confronted by the elderly man, the prisoner struck him twice in the head with the half brick. The pair fled with approximately $1,500 in cash.

The prisoner was arrested on 1 January 1998 and had been in custody from that date. His accomplice, the granddaughter, pleaded guilty to a lesser charge and was released on a recognisance, having given a version of events that Dunford J found was clearly designed to minimise her own role.

  • What sentence was appropriate for the manslaughter of a frail, elderly victim killed during a home invasion motivated by drug acquisition?
  • How should the late guilty plea be treated in calculating the appropriate discount from the sentence?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify a non-parole period greater than the standard proportion of the head sentence.

Decision

Dunford J characterised the offending as falling within the more serious range of manslaughter cases. The killing involved unlawful entry into the home of a frail, sick man who was attacked in his own bedroom, a place where he was entitled to feel safe. The prisoner had armed himself with a weapon before entering the house, indicating premeditation in the manner of the attack even if there was no intent to kill or cause grievous bodily harm.

The Crown accepted the manslaughter plea on the basis that the prisoner's act of striking the deceased with the half brick was an unlawful and dangerous act. Dunford J sentenced on that basis, noting that the absence of direct evidence from inside the house meant the Crown may have been unable to prove the intent required for murder.

On mitigating factors, Dunford J considered the prisoner's long history of drug addiction, his chronic phobic anxiety, his remorse, his anonymous call to the ambulance (though giving the wrong address), and his comparatively minor prior criminal record. The judge accepted a genuine desire on the prisoner's part to overcome his addiction. However, because the Crown's case was strong and conviction was described as inevitable, the credit given for the guilty plea was confined to a reduction of one year from the head sentence and six months from the non-parole period.

Dunford J was not satisfied that special circumstances existed under s 44 to justify departing from the standard ratio between the non-parole period and the head sentence.

Orders Made

  • The prisoner was sentenced to 11 years imprisonment for the manslaughter of Donald Foster.
  • The sentence was backdated to commence on 1 January 1998.
  • A non-parole period of 8 years and 6 months was set.
  • The earliest date of eligibility for parole was 30 June 2006.

Key Takeaways

  • Manslaughter arising from a home invasion with a weapon, targeting a vulnerable victim, was placed by the Supreme Court in the more serious range of manslaughter cases, warranting a substantial custodial term.
  • The absence of an intent to kill or cause grievous bodily harm remained a relevant mitigating consideration even where the objective circumstances were particularly grave.
  • Where a guilty plea is entered late and the Crown's case was already strong, the credit accorded for that plea may be modest: here, one year off the head sentence and six months off the non-parole period.
  • A prisoner's drug addiction, mental health difficulties, and prior attempts at rehabilitation were taken into account as mitigating factors, though they did not significantly reduce the sentence given the gravity of the offending.
  • No special circumstances were found under s 44 of the Crimes (Sentencing Procedure) Act 1999, so no adjustment to the standard relationship between the non-parole period and head sentence was warranted.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances and the non-parole period)
- Crimes Act (NSW), s 558 (release on recognisance, as applied to the co-offender)

Cases cited: None referenced in the provided text.