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Court of Criminal Appeal 25 September 2001

Regina v Tony Sandnes

[2001] NSWCCA 385

Assault & violenceHomicide

Citation: Regina v Tony Sandnes [2001] NSWCCA 385
Court: NSW Court of Criminal Appeal
Date: 25 September 2001
Judges: Powell JA, Sully J, Bell J

Background

The appellant was charged with the murder of an 80-year-old man at his home in Earlwood on 30 December 1997. The victim suffered severe head injuries during a home invasion carried out by the appellant and his then-partner, who was the victim's granddaughter. The victim died in hospital ten days later.

The appellant originally pleaded not guilty and stood trial. On the second day of trial, after the Crown had opened and presented its evidence, he was re-indicted and entered a plea of guilty to manslaughter. The Crown accepted that plea in full discharge of the original murder indictment.

Dunford J of the Supreme Court sentenced the appellant to 11 years' imprisonment with a non-parole period of eight and a half years. The appellant sought leave to appeal against that sentence, requiring an extension of time to bring the application.

  • Whether the sentencing judge erred in the discount applied for the late guilty plea, having regard to the guideline judgment in Regina v Thomson and Regina v Houlten
  • Whether the statistical sentencing data tendered by the appellant provided a reliable basis for demonstrating that the sentence fell outside the appropriate range
  • Whether the overall sentence was manifestly excessive given the objective criminality of the offence and the relevant subjective factors

Decision

On the guilty plea discount, Sully J referred to his own earlier analysis in Regina v Gregory Peter Hayes [2001] NSWCCA 358, reaffirming the principles applicable under the Thomson and Houlten guideline judgment. Sully J did not find that the sentencing judge's approach to the discount constituted error sufficient to vitiate the sentence.

On the statistical material, Sully J was unpersuaded that it assisted the Court. The data presented covered only ten cases of manslaughter involving guilty-pleading offenders with criminal antecedents over a seven-year period. Sully J found this case base too narrow to be of practical assistance in assessing the sentencing range.

As to the overall sentence, Sully J characterised the crime as one of great objective wickedness and criminality, placing it at the very top of the relevant scale of culpability. He concluded that the sentence of 11 years, with a non-parole period of eight and a half years, was substantial and sat toward the very top of the permissible range of sentencing discretion. Critically, however, he was wholly unpersuaded that it fell outside that range.

Powell JA and Bell J agreed with Sully J's reasoning and proposed orders without addition.

Orders Made

  • Extension of time to bring the appeal application granted
  • Leave to appeal granted
  • Substantive appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence toward the very top of the permissible range does not, without more, constitute an error of sentencing discretion.
  • A late guilty plea entered on the second day of trial, after the Crown had already opened and presented evidence, carries limited weight as a mitigating factor, particularly where the Crown case was strong and conviction was described as inevitable.
  • Statistical sentencing data drawn from a case base of only ten comparable offences over seven years was found to be too narrow to assist the Court in assessing whether a sentence fell outside the appropriate range.
  • The statutory maximum penalty of 25 years for manslaughter was treated as a significant indicator of the legislature's view of the offence's seriousness, relevant to the placement of a particularly grave instance of the crime within that range.
  • Where a sentencing judge correctly identifies and accounts for subjective factors, an appellate court will not intervene simply because the resulting sentence is a severe one, provided it remains within the range of sound discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) (manslaughter, maximum penalty of 25 years' imprisonment)

Cases Cited
- Regina v Thomson (guideline judgment on guilty plea discounts)
- Regina v Houlten (guideline judgment on guilty plea discounts)
- Regina v Gregory Peter Hayes [2001] NSWCCA 358
- Regina v Ellis
- Regina v Cartwright
- Regina v Winchester