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Supreme Court 21 November 2003

Regina v O'Connor

[2003] NSWSC 1041

Assault & violenceHomicide
MANSLAUGHTER PLEA

Citation: Regina v O'Connor [2003] NSWSC 1041
Court: Supreme Court of New South Wales
Date: 21 November 2003
Judge(s): Whealy J

Background

In the early hours of 26 January 2002, Wayne Anthony Myers died from a stab wound to the heart following a violent group assault in Cartwright, New South Wales. The offender, James Dean O'Connor, was one of four young men who approached the deceased and others waiting for a taxi on Bendigo Place. The group proceeded to punch and kick the deceased, who was also stabbed by one or more of the other participants.

The Crown accepted that O'Connor neither stabbed the deceased nor possessed a knife that night, and that there was no evidence he knew any of his companions was armed. Nevertheless, O'Connor participated in the assault as part of a group acting with a shared intention to attack the deceased, which carried an appreciable risk of serious injury.

O'Connor handed himself in to police on 27 January 2002 and had remained in custody on a bail-refused basis from that date. He was indicted for murder, but pleaded guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

  • The appropriate sentence for manslaughter by an unlawful and dangerous act, where the offender acted in concert with others but did not inflict the fatal injury
  • The weight to be given to the offender's youth, criminal history, background, and prospects for rehabilitation
  • Whether special circumstances existed justifying a variation of the statutory ratio between the head sentence and the non-parole period

Decision

Whealy J sentenced O'Connor on the basis of manslaughter by an unlawful and dangerous act, accepting that participation in a group assault carrying an appreciable risk of serious injury was sufficient to ground liability, even though O'Connor did not stab the deceased and was unaware that anyone carried a knife.

The court assessed the offender's subjective circumstances as "reasonably strong." Although O'Connor had a prior criminal history and had been subject to orders under the Children's (Criminal Proceedings) Act 1987, Whealy J took into account his youth at the time of the offence, his history of drug and alcohol use, and evidence of genuine remorse. The court noted that O'Connor had returned to the scene distressed shortly after the attack and told witnesses the outcome was not intended, and that he had voluntarily surrendered to police the following day.

A pre-sentence report indicated some prospects of rehabilitation. The court determined that a starting sentence of six years imprisonment was appropriate, reduced by 15 percent to reflect the guilty plea, yielding a head sentence of five years and two months. The sentence was backdated to the date O'Connor entered custody.

Whealy J found that special circumstances existed, warranting a variation in the statutory proportion between the head sentence and the non-parole period. The court considered that a longer parole period with structured supervision, counselling, and conditions addressing drug and alcohol use would materially assist rehabilitation.

Orders Made

  • Total sentence of five years and two months imprisonment, commencing 27 January 2002
  • Non-parole period of three years and two months, commencing 27 January 2002 and ending 26 March 2005, with eligibility for release on parole from that date
  • Recommendation that the offender receive psychiatric counselling and anger management counselling while in custody
  • Recommendation that upon release, the Probation and Parole Service consider requiring the offender to undertake continuing counselling (including anger management) and receive direction regarding alcohol and illicit drug use as conditions of any parole supervision

Key Takeaways

  • Manslaughter by an unlawful and dangerous act can be established against a participant in a group assault even where that participant did not inflict the fatal injury, provided the shared intention to assault carried an appreciable risk of serious injury.
  • A guilty plea attracted a 15 percent discount on the head sentence, consistent with the approach in cases such as R v Dib [2003] NSWCCA 117.
  • Where an offender's rehabilitation prospects are meaningful and structured supervision is likely to assist, a sentencing court may find special circumstances justifying a longer parole period relative to the statutory proportion.
  • Voluntary surrender to police, expressions of remorse shortly after the offence, and evidence of distress were treated as relevant subjective factors, though they did not displace the need for a custodial sentence reflecting the seriousness of the offending.
  • The Supreme Court used its sentencing recommendations to flag the importance of psychiatric support, anger management, and drug and alcohol counselling both during custody and as part of any post-release parole regime.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Children's (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Hill (1981) 3 A Crim R 397 at 402 per Street CJ
- Macdonald (NSWCCA, 12 December 1985)
- R v Dib [2003] NSWCCA 117
- The Queen v Rutter [2003] NSWCCA 306