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Supreme Court 8 November 2001

R v Masson, R v Symss

[2001] NSWSC 1037

Assault & violenceHomicideTheft & property
CRIMINAL LAW

Citation: R v Masson, R v Symss [2001] NSWSC 1037
Court: Supreme Court of New South Wales
Date: 8 November 2001
Judge(s): Howie J

Background

Two co-accused were sentenced following a jury trial in which one was convicted of murder and the other of manslaughter, along with related offences of robbery with wounding in company and larceny of a motor vehicle. The offences arose from events on 24 April 1999 in Wagga Wagga, where an elderly widow was found dead in her home after being smothered. Her motor vehicle and jewellery had been stolen.

One accused (referred to here as the convicted murderer) was a relative newcomer to the area who had met the other accused (referred to as the convicted manslaughterer) while both were living at a local hostel. The convicted manslaughterer had a prior acquaintance with the deceased through his wife. Both accused admitted attending the deceased's home that day and taking her property, but each blamed the other for the killing.

The jury convicted one accused of murder and the other of manslaughter. The distinction carried significant consequences for sentencing, as the manslaughter verdict reflected the jury's finding that the convicted manslaughterer had a very limited role in the killing itself.

  • What sentence was appropriate for the accused convicted of murder, having regard to the gravity of the offence and all relevant circumstances?
  • What sentence was appropriate for the accused convicted of manslaughter, given the jury's verdict necessarily reflected his limited causal role in the death?
  • How should the associated offences of robbery with wounding in company and larceny be sentenced in each case?
  • What weight should be given to the Form 1 matters (additional offences taken into account without separate conviction) in each sentence?

Decision

Howie J emphasised at the outset that the manslaughter conviction had to be understood carefully. The jury's verdict necessarily assigned the convicted manslaughterer a very limited role in the killing, meaning the sentence imposed on him could not reflect the full horror of the crime, even though the crime itself was appalling. A significantly lesser sentence than that imposed for murder was required by law.

The convicted murderer received a lengthy sentence for murder. Howie J took into account the Form 1 matters in both cases. The sentences for the associated robbery and larceny offences were structured as fixed terms, concurrent with the principal sentences, on the basis that the principal sentences were the dominant sentencing feature.

Howie J also addressed the practical circumstances of each prisoner's custody. One accused faced the prospect of spending a substantial period in protection within the prison system, a matter the court noted as a relevant hardship in sentencing. The court received victim impact statements from the deceased's family members but made clear those statements were not used to increase the severity of either sentence, serving instead to acknowledge the human loss involved.

Orders Made

  • The convicted murderer (Symss) was sentenced to 22 years imprisonment for murder, backdated to 27 April 1999, with a non-parole period of 16 years and 6 months expiring 26 October 2015.
  • A fixed term of 5 years for robbery with wounding in company, commencing 27 April 1999 and expiring 26 April 2004.
  • A fixed term of 2 years for larceny, commencing 27 April 1999 and expiring 26 April 2001.
  • The convicted manslaughterer (Masson) was sentenced to 7 years and 6 months imprisonment for manslaughter, backdated to 15 March 2000, with a non-parole period of 4 years and 6 months expiring 14 September 2004.
  • A fixed term of 3 years and 6 months for robbery in company and wounding, commencing 15 March 2000 and expiring 14 September 2003.
  • A fixed term of 18 months for larceny, commencing 15 March 2000 and expiring 14 September 2001.
  • Form 1 matters were taken into account in each sentence.

Key Takeaways

  • A manslaughter conviction, as distinct from murder, carries significant sentencing consequences: where the jury's verdict reflects only a limited causal role in a killing, the sentence imposed must be substantially lower than it would be for murder, even where the underlying criminal enterprise was extremely serious.
  • Under the sentencing framework applied by the Supreme Court, victim impact statements are received to acknowledge the human consequences of crime, not to increase the severity of sentences, and must not be used to aggravate an offender's culpability.
  • Fixed terms for lesser concurrent offences may be appropriate where a substantial head sentence on the principal count is the dominant sentencing consideration, as the non-parole period on the principal offence governs the practical operation of the sentence.
  • Where co-accused are sentenced for different offences arising from the same facts, the court must carefully distinguish the basis on which each verdict was returned and sentence accordingly, avoiding any conflation of the respective findings of guilt.
  • Hardship experienced within custody, such as the need to spend significant time in protection, constitutes a relevant consideration in fixing an appropriate sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23(2)(b), 44

Cases cited: None cited in the provided text.