Citation: Regina v Stuart Carrick; Regina v Leslie James Parkes [2002] NSWSC 707
Court: Supreme Court of New South Wales
Date: 9 August 2002
Judge(s): Buddin J
Background
Two offenders were originally charged with the murder of a man who died on 23 August 2000, two days after their arrests. The deceased was a vulnerable individual: intellectually impaired, in poor health, and heavily dependent on alcohol. He had been living in and around the Housing Commission flat of one of the offenders at Riverwood. Both offenders and the deceased had a volatile relationship punctuated by periods of hostility and excessive drinking.
Following a committal, both offenders were committed for trial on murder. As trial approached, the Crown foreshadowed a revised indictment including non-homicide alternative charges and separate assault counts. The form of that indictment remained subject to ongoing negotiation. By 31 July 2002, the Crown had received further medical evidence and acknowledged it could not establish causation for either murder or manslaughter, in part because the deceased had been suffering from meningitis, pneumonia, and overwhelming sepsis at the time of death.
At that point, the Crown accepted guilty pleas from both offenders to the non-homicide charges and "no billed" the murder and manslaughter counts. The Crown accepted that 31 July 2002 was the first reasonable opportunity the offenders had to plead to the indictment in its final form. Both offenders had been held in continuous custody, including time in maximum security, since their arrests on 21 August 2000.
Legal Issues
- Whether the guilty pleas, entered on 31 July 2002, qualified as pleas at the "first reasonable opportunity" for the purposes of the discount under section 21A of the Crimes (Sentencing Procedure) Act 1999
- How to approach sentencing under the De Simoni principle, given the deceased had died but the offenders were being sentenced only for non-fatal offences
- Whether "special circumstances" existed to justify varying the statutory ratio between the non-parole period and the balance of term
- How to construct sentences that maintained a proper relationship between two offenders who were not strictly co-offenders but whose offending was closely connected
- How to account for the lengthy time already spent in maximum security custody awaiting trial
Decision
Buddin J confirmed that the pleas were entered at the first reasonable opportunity. The indictment had been in flux throughout, and the final form only crystallised shortly before 31 July 2002. The Crown's concession on this point was accepted.
The court was careful to sentence both offenders strictly on the counts to which they had pleaded guilty. Consistent with De Simoni v The Queen (1981) 147 CLR 383, Buddin J held that it would be contrary to principle to have any regard to the fact that the deceased subsequently died. The offenders were sentenced only for the individual assaults they had admitted, assessed on their own facts.
Both offenders had been held in maximum security for approximately two years before sentencing. Buddin J treated this as a relevant consideration. The court also found special circumstances justifying a departure from the standard non-parole period ratio, principally the need for rehabilitation of offenders with serious alcohol dependency, and the importance of supervised treatment conditions being attached to any parole period.
The overall effective head sentence for the most serious charges against each offender was set at 3½ years (commencing February 2002), reflecting a discount for the guilty pleas and structured to run after the concurrent shorter sentences. Parole conditions for both offenders were to include supervision of alcohol treatment.
Orders Made
Stuart Carrick:
- Count 1 (common assault): fixed term of 6 months, commencing 21 August 2000, expiring 21 February 2001
- Count 3 (assault occasioning actual bodily harm): fixed term of 18 months, commencing 21 August 2000, expiring 21 February 2002, concurrent with Count 1
- Count 2 (maliciously inflict grievous bodily harm): 3½ years, commencing 21 February 2002, expiring 20 August 2005, with a non-parole period of 15 months expiring 20 May 2003; parole to include conditions for supervision of alcohol treatment
Leslie James Parkes:
- Count 6 (malicious wounding): fixed term of 9 months, commencing 21 August 2000, expiring 21 May 2001
- Count 4 (malicious wounding): fixed term of 18 months, commencing 21 August 2000, expiring 21 February 2002, concurrent with Count 6
- Count 5 (malicious wounding): 3½ years, commencing 21 February 2002, expiring 20 August 2005, with a non-parole period of 15 months expiring 20 May 2003; parole to include conditions for supervision of alcohol treatment
Key Takeaways
- Under the De Simoni principle, a sentencing court must restrict itself to the offences before it and cannot take into account a more serious outcome, such as the victim's death, when that outcome forms no part of the charge to which the offender has pleaded guilty.
- Where the final form of an indictment was not settled until shortly before the plea was entered, the court may accept that the plea was made at the "first reasonable opportunity," even where committal proceedings and earlier indictment drafts had been on foot for some time.
- A lengthy period spent in maximum security awaiting trial, particularly where the original charges were later reduced significantly, is a relevant factor in the sentencing exercise.
- Special circumstances justifying a variation to the standard non-parole period ratio can arise from the need to provide a supervised rehabilitation period for offenders with serious alcohol dependency.
- Where two offenders are not strictly co-offenders but their conduct is closely connected, the sentencing court should ensure that the sentences imposed bear a proper and logical relationship to one another.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Procedure Act 1986 (NSW)
Cases:
- Cameron v The Queen (2002) 187 ALR 65
- De Simoni v The Queen (1981) 147 CLR 383
- Maxwell v The Queen (1995) 184 CLR 501
- Pearce v The Queen (1998) 194 CLR 610
- R v Doan (2000) 50 NSWLR 115
- R v Simpson [2001] NSWCCA 534
- R v Taylor (NSWSC, unreported, 20 April 2002)
- R v Thomson & Houlton [2000] 49 NSWLR 383