Citation: Regina v Popovic [2001] NSWSC 1118
Court: Supreme Court of New South Wales
Date: 19 December 2001
Judge(s): O'Keefe J
Background
On 22 February 1999, the prisoner discharged two shots from a double-barrel shotgun in a busy street in Wollongong, killing one person and wounding nine others. He was arrested four days later and charged with murder and nine counts of malicious wounding. The victim of the fatal shooting had, according to evidence emerging at trial, made threats against the prisoner, his mother, and his young son over the preceding weeks.
At his first trial in mid-2000, the jury convicted the prisoner on all nine wounding counts but could not reach a verdict on the murder charge. A second murder trial was aborted when the jury was discharged through no fault of the prisoner. Following that discharge, and in light of the threats evidence, the Crown indicated for the first time that it would accept a plea of guilty to manslaughter on the basis of the partial defence of provocation. That plea was entered on 4 June 2001.
The sentencing hearing was adjourned at the prisoner's request to allow preparation of evidence in mitigation, and ultimately proceeded on 16 November 2001. The court was required to sentence the prisoner across ten counts in total: nine malicious woundings and one manslaughter.
Legal Issues
- What is the appropriate sentence for manslaughter where provocation operates as a partial defence and the victim cannot give his own account of events?
- How should the principle of totality apply when sentencing for multiple temporally related offences?
- Whether special circumstances existed to justify departing from the statutory ratio of non-parole period to total sentence.
- What weight should be given to a late plea of guilty entered only after two trials?
- How should concurrency be structured across the malicious wounding sentences and the manslaughter sentence?
Decision
O'Keefe J observed that manslaughter is among the most variable of crimes, with a sentencing range wider than almost any other offence. The court noted the difficulty of comparisons with other manslaughter cases and confirmed that each case must ultimately be determined on its own facts. The judge was careful to balance the objective gravity of a felonious taking of human life against the mitigating force of provocation, while noting that the deceased was not available to give his account of events leading to the shooting.
On the late guilty plea, the court acknowledged that contrition expressed only after two trials attracts substantially less weight than an early plea. Some credit was nonetheless given, along with other subjective factors including rehabilitation prospects.
Applying the totality principle, the court found that the overall criminality of the ten offences called for a total sentence in the order of 12 years. The nine malicious wounding sentences were each fixed at three years and ordered to run concurrently with one another. The manslaughter sentence was then structured to overlap partially with the wounding sentences rather than being imposed as a wholly cumulative term.
The court found special circumstances existed, arising from the prisoner's rehabilitation prospects and the accumulation of sentences, warranting a reduction in the statutory ratio between the non-parole period and the total sentence for manslaughter.
Orders Made
- Fixed term of 3 years imprisonment on each of the nine counts of malicious wounding, each sentence concurrent, commencing 26 February 1999 and expiring 25 February 2002.
- 10 years imprisonment for manslaughter, commencing 26 February 2001 and expiring 25 February 2011.
- Non-parole period for the manslaughter sentence fixed to conclude 25 February 2007, with eligibility for parole from 26 February 2007.
Key Takeaways
- Manslaughter attracts a uniquely wide sentencing range; the Supreme Court confirmed that comparisons between cases are of limited utility and each sentence must rest on its own facts, consistent with the approach in R v Hill and R v Troja.
- Where provocation reduces murder to manslaughter, the court must balance the partial exculpatory force of that finding against the fundamental seriousness of a felonious taking of human life, particularly where the deceased cannot give their own account.
- A late guilty plea, entered only after two trials have run their course, carries materially less mitigating weight than an early plea, though it is not entirely without significance when combined with other subjective factors.
- The totality principle shaped the structure of the concurrent and partially concurrent sentences here, with the court designing the sentence regime to reflect overall criminality across ten counts rather than imposing fully cumulative terms.
- Special circumstances capable of displacing the statutory non-parole period ratio can arise from the combination of rehabilitation prospects and the accumulation of multiple sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 35 (malicious wounding)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Regina v Storey (1997) 89 A Crim R 519
- Regina v Isaacs (1997) 90 A Crim R 587
- R v Troja (NSWCCA, 16 July 1991, unreported) per Kirby P
- R v Hill (1980-1981) 3 A Crim R 397