Citation: R v Stelfox [2001] NSWSC 630
Court: Supreme Court of New South Wales (Criminal Division)
Date: 23 July 2001
Judge(s): Howie J
Background
The prisoner pleaded guilty to manslaughter arising from a fatal shooting at Tweed Heads in November 1999. He had joined, at short notice, a group of men who set out to assault and intimidate the deceased and his flatmate over a dispute with a neighbour. Although the prisoner did not fire the weapon, he armed himself with a broom handle and metal rod, participated fully in the joint criminal enterprise, and had inferred from an overheard conversation that the shotgun carried by one of his companions was loaded and capable of being discharged.
During the confrontation, the offender reached the scene first and struck at one of the bystanders. One of his co-participants then fired the shotgun, fatally wounding the deceased, Graham Withington, in the back.
Following his arrest the next morning, the prisoner cooperated extensively with police. He gave an immediate account identifying the shooter and provided a lengthy recorded interview detailing each participant's role. He also undertook to give evidence at the trials of his alleged co-offenders, an undertaking that was before the Court at sentencing.
Legal Issues
- What sentence was appropriate for manslaughter committed in the course of a joint criminal enterprise involving a firearm?
- What weight should be given to the prisoner's early plea of guilty?
- What discount, if any, was warranted for the prisoner's substantial assistance to authorities, including his recorded interview and undertaking to give evidence against co-accused?
- How should the prisoner's age, background, and subjective circumstances affect the non-parole period?
Decision
Howie J found that the prisoner's role in the enterprise was not to be assessed at its lowest. The prisoner had voluntarily joined the group fully aware of its violent purpose, had equipped himself with weapons capable of causing serious injury, and had inferred the shotgun was loaded. The accidental element of the death (the shot narrowly missed the prisoner himself) did not reduce the objective gravity of the offending.
The court accepted that several subjective factors operated in the prisoner's favour. These included his youth, the absence of any significant prior criminal history, his immediate and extensive cooperation with police, and his undertaking to testify against co-accused. Howie J applied the framework from R v Thompson and Houlton for quantifying the discount attributable to assistance to authorities.
The court determined that, absent any discount, the appropriate sentence would have been nine years imprisonment. Applying the discount for assistance and taking into account the early plea and subjective circumstances, the sentence was reduced to five years.
The non-parole period of two years and six months was described as the minimum consistent with reflecting the objective seriousness of the offence and serving the purpose of general deterrence. The sentence was backdated two weeks to account for time already spent in custody on remand.
Orders Made
- The prisoner is sentenced to 5 years imprisonment, commencing 9 July 2001.
- A non-parole period of 2 years and 6 months is fixed, commencing 9 July 2001 and expiring 8 January 2004, at which date the prisoner is eligible for release to parole.
Key Takeaways
- A participant in a joint criminal enterprise may be convicted of manslaughter even where someone else fired the fatal shot, provided the participant armed himself, inferred the firearm was loaded, and took an active role in the confrontation.
- Substantial and immediate cooperation with police, including a detailed recorded interview and an undertaking to give evidence at co-accused trials, can attract a significant sentencing discount, here contributing to a reduction from a nine-year to a five-year head sentence.
- The Supreme Court applied the principles in R v Thompson and Houlton (2000) 49 NSWLR 383 to quantify the discount for assistance to authorities as a distinct component of the sentencing exercise.
- Comparative sentencing statistics from the Judicial Commission were noted to be of limited assistance in manslaughter cases, given the wide factual variation between individual offences of that type.
- A victim impact statement was received to acknowledge the family's grief and loss, but Howie J confirmed it was not used to increase the sentence or to aggravate the objective seriousness of the offending.
Legislation and Cases Referenced
Legislation
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- R v Thompson and Houlton (2000) 49 NSWLR 383