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Supreme Court 21 November 2003

Regina v Avakian

[2003] NSWSC 1042

Assault & violenceHomicide
PLEA TO MANSLAUGHTER

Citation: Regina v Avakian [2003] NSWSC 1042
Court: Supreme Court of New South Wales
Date: 21 November 2003
Judge(s): Whealy J

Background

The offender, a young man aged 21 at the time of sentencing, was charged with the murder of a man who was waiting for a taxi in Cartright, New South Wales, in the early hours of 26 January 2002. The offender was part of a group of four males who approached the deceased and two companions. An altercation followed in which the offender confronted the deceased, brandished a mobile phone while claiming it was a gun, and repeatedly stated that the deceased was going to die that night.

The deceased was punched by members of the group, including the offender, and was stabbed during the assault. The stabbing was not carried out by the present offender, and there was no evidence he knew any member of the group was carrying a knife. The deceased was taken to Liverpool Hospital and pronounced dead from a stab wound to the heart.

The offender surrendered to police on 7 February 2002, after learning he was being sought in connection with the assault. During a jury trial in August 2003, he was re-arraigned and pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment.

  • The appropriate factual basis and category of manslaughter for sentencing purposes, given the offender's role in a group assault in which another person inflicted the fatal stab wound
  • How the offender's role as the instigator of the incident should be reflected in the sentence
  • The weight to be given to subjective factors, including the offender's criminal history, personal circumstances, and prospects of rehabilitation
  • The appropriate discount for the guilty plea
  • Whether special circumstances existed to justify a non-parole period departing from the standard ratio

Decision

Whealy J found that the offender was to be sentenced for manslaughter by an unlawful and dangerous act. The basis was that he was acting in concert with the other men, sharing an intention to assault the deceased in circumstances carrying an appreciable risk of serious injury. His direct participation was punching the deceased several times.

Comparing the offender to his co-accused O'Connor, whose sentence was imposed on the same day, the court identified two aggravating features specific to the present offender. First, he was the instigator of the confrontation that led to the assault. Second, at the time of the offence he was serving periodic detention and subject to a bond, both of which required specific recognition in the sentence.

The court assessed the offender's subjective circumstances as evoking somewhat greater sympathy than those of O'Connor, given his background and personal history, though the differences were not considered major. The offender's criminal record, which included prior convictions for assault, drug offences, and offences against police, was taken into account and weighed against him.

Before applying any discount, the court set a starting sentence of six years and six months imprisonment. A 15 percent discount was then applied for the guilty plea, producing a head sentence of five years and six months. Special circumstances were found to justify a non-parole period of three years and six months, with the sentence backdated to 21 October 2002 to reflect time already served in custody.

Orders Made

  • Sentenced to five years and six months imprisonment, commencing 21 October 2002
  • Non-parole period of three years and six months, commencing 21 October 2002 and ending 20 April 2006, with eligibility for parole from that date
  • Recommendation that the offender receive psychiatric counselling, anger management counselling, and counselling regarding drug and alcohol abuse while in custody
  • Recommendation that the Probation and Parole Service require the offender, upon release, to receive continuing counselling including anger management, and to accept directions regarding alcohol and illicit drug use during the parole period

Key Takeaways

  • Where an offender participates in a group assault in which a co-offender inflicts the fatal injury, manslaughter by unlawful and dangerous act remains the appropriate charge provided the offender shared an intention to assault in circumstances carrying an appreciable risk of serious injury, even without knowledge that another member of the group was armed.
  • Acting as the instigator of an incident leading to a fatal assault is a distinct aggravating factor that warrants specific recognition in sentencing, separate from the offender's degree of physical participation.
  • Committing an offence while serving periodic detention and subject to a court bond is an additional aggravating circumstance that the sentencing court must expressly account for.
  • A 15 percent discount for a guilty plea to manslaughter entered mid-trial was applied by the Supreme Court, reflecting the utilitarian value of the plea notwithstanding that it came after proceedings had commenced.
  • Special circumstances justifying a non-parole period below the standard statutory proportion can be found where the offender's background and rehabilitation needs warrant an extended period on supervised parole.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Criminal Procedure Act (NSW), s 157
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Hill (1981) 3 A Crim R 397
- MacDonald (NSW Court of Criminal Appeal, 12 December 1985)
- Cardosa [2003] NSWCCA 15