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2
Court of Criminal Appeal 2 April 2002

R v Curry

[2002] NSWCCA 109

Homicide

Citation: R v Curry [2002] NSWCCA 109
Court: NSW Court of Criminal Appeal
Date: 2 April 2002
Judge(s): Studdert J (principal judgment), Heydon JA, Buddin J (both agreeing)

Background

The applicant was one of six men who stood trial in a lengthy joint proceeding following the fatal shooting of two men during an ambush at a Bankstown property in April 1998. After a trial running from April to September 2000, the jury acquitted all six accused of murder but convicted each of manslaughter on two counts. The sentencing judge, Hidden J in the Supreme Court, proceeded on the basis that each offender was a party to a joint criminal enterprise to assault the victims, knew guns were present, but contemplated only that those guns might be used to frighten rather than wound or kill.

Hidden J sentenced the applicant to two consecutive nine-year terms of imprisonment (with five-year non-parole periods on each), resulting in an aggregate non-parole period of six years and an effective total sentence of ten years. Four of the six co-offenders received identical sentences, with one treated more harshly due to a worse criminal record and parole status, and another more leniently because of good character evidence.

The applicant sought leave to appeal against sentence in the Court of Criminal Appeal, arguing that Hidden J had failed to adequately account for an offer made before trial to plead guilty to manslaughter.

  • Whether Hidden J erred by failing to give sufficient weight to the applicant's pre-trial offer to plead guilty to manslaughter when assessing the appropriate sentencing discount
  • How the High Court's decision in Cameron v The Queen [2002] HCA 6 affected the proper basis for discounting a sentence in recognition of a guilty plea or an offer to plead guilty
  • Whether the sentences imposed were manifestly excessive having regard to the applicant's subjective circumstances

Decision

The central ground of appeal concerned the treatment of the applicant's pre-trial offer to plead guilty to manslaughter. Hidden J had acknowledged the offer but declined to give it the same weight as an actual guilty plea, partly because the offer was undefined in its terms and partly because the matter proceeded as a joint trial. The Court of Criminal Appeal found no error in this approach, describing it as "extraordinarily difficult" for the sentencing judge to have assessed what discount, if any, was warranted for an offer of this vague character in the context of a complex joint trial. Hidden J had, however, taken the offer into account as indicative of remorse.

The court considered the impact of Cameron v The Queen, in which the High Court held that a plea of guilty should be recognised as evidence of contrition and as demonstrating a willingness to facilitate the course of justice, rather than on the purely utilitarian basis of saving the community the cost of a contested hearing. Studdert J observed that the willingness-to-facilitate rationale would ordinarily warrant no lesser discount than had previously been given for utilitarian value, and that Cameron would not have altered the outcome in the earlier Court of Criminal Appeal decision of R v Oinonen, upon which Hidden J had relied.

On the question of whether the sentences were excessive overall, the Court of Criminal Appeal was satisfied that Hidden J's conclusion to treat four of the co-offenders identically was properly open on the evidence. Taking into account both the objective seriousness of the two manslaughter offences and the applicant's subjective circumstances (including genuine remorse, good family background, and constructive prison conduct), the court concluded that no lesser sentences would have been appropriate.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A pre-trial offer to plead guilty may be taken into account in sentencing as evidence of remorse, but an undefined or qualified offer made in the context of a complex joint trial need not attract the same discount as a formal guilty plea.
  • Following Cameron v The Queen, the rationale for discounting a sentence in recognition of a guilty plea rests on two recognised bases: it is evidence of contrition, and it demonstrates a willingness to facilitate the course of justice. The purely utilitarian saving-of-cost rationale is no longer the correct frame.
  • The Court of Criminal Appeal confirmed that the willingness-to-facilitate consideration should ordinarily produce a discount no smaller than what was previously allowed on utilitarian grounds.
  • Where multiple co-offenders are sentenced on the same legal and factual basis, a sentencing judge may properly impose identical sentences if the differences in their subjective circumstances do not justify disparity.
  • In dismissing the appeal, the Court of Criminal Appeal found no error in the aggregate structure of consecutive nine-year terms producing a six-year non-parole period, given the applicant's involvement in two separate manslaughter offences arising from the same ambush.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 24 (maximum penalty for manslaughter: 25 years imprisonment)

Cases:
- R v Oinonen [1999] NSWCCA 310
- Cameron v The Queen [2002] HCA 6