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Supreme Court 13 December 2004

Regina v Hayes

[2004] NSWSC 1195

Homicide
SENTENCE MANSLAUGHTER PLEA PARITY

Citation: Regina v Hayes [2004] NSWSC 1195
Court: Supreme Court of New South Wales (Common Law Division)
Date: 13 December 2004
Judge(s): M W Campbell AJ

Background

Three women were involved in the unlawful killing of a man at Cabramatta on 22 April 2001. The victim was stabbed multiple times during a physical altercation involving all three women. The Crown accepted that it could not prove beyond reasonable doubt which of the three had wielded the knife.

Two co-offenders were sentenced in December 2003 by Whealy J after pleading guilty to manslaughter. Each received six years and nine months imprisonment with a non-parole period of four years. The accused in this matter, the third woman involved, entered the same plea at a later date due to delays not of her own making.

Because it was not practicable for Whealy J to deal with the later plea, a different judge was assigned to the sentencing. The sentencing court was provided with Whealy J's remarks on sentence, the Court of Criminal Appeal's decision dismissing a Crown appeal against the co-offenders' sentences, and the co-offenders' criminal histories.

  • What sentence was appropriate for manslaughter where the offender pleaded guilty and the Crown could not prove she was the stabber?
  • How should the parity principle apply where a co-offender is sentenced by a different judge at a later time?
  • Whether any adjustment to the co-offenders' sentences was warranted given differences in the accused's subjective circumstances, criminal history, and the conditions under which she would serve her sentence.

Decision

The court determined that the same sentence imposed on the co-offenders by Whealy J was appropriate. The parity principle, derived from Postiglione v R (1995) 189 CLR 295, was identified as a central consideration given that all three women participated in the same offence on the same factual basis.

The court acknowledged a potential basis for a lesser sentence, noting that the accused had not taken part in a subsequent assault on a different victim for which the two co-offenders had been convicted, and that her criminal record and prospects of rehabilitation were comparable to or better than those of the other women. However, the court declined to reduce the sentence for three offsetting reasons.

First, the co-offenders had received a concurrency benefit from sentences relating to the unrelated assault, an advantage the accused did not share. Second, the accused was a diagnosed diabetic whose condition made prison harder for her than for the others. Third, her criminal record and subjective circumstances were not so markedly better overall as to justify a departure from the co-offenders' sentences. The court concluded that any potential discount was offset by these factors, and that a lesser sentence would not be appropriate given the gravity of the violent conduct that caused a man's death.

Orders Made

  • The accused was sentenced to six years and nine months imprisonment with a non-parole period of four years, commencing 4 August 2004, with eligibility for parole on 3 August 2008.
  • The sentencing court directed that relevant prison authorities be reminded of the accused's diagnosed diabetes and requirement for treatment.
  • Exhibits may be returned after 28 days.

Key Takeaways

  • The parity principle requires a sentencing court to have close regard to sentences imposed on co-offenders for the same offence, even where those sentences were imposed by a different judge at an earlier time.
  • Where a co-offender has received a concurrency benefit from an unrelated sentence, the absence of that benefit for a later-sentenced offender is a legitimate factor that can offset other grounds for a reduction.
  • An offender's health condition may be acknowledged as making a custodial sentence more burdensome, without that factor alone warranting a reduction in the term imposed.
  • The Supreme Court confirmed that the inability to prove which participant in a joint assault inflicted the fatal wound does not preclude a conviction for manslaughter on the basis of an unlawful and dangerous act.
  • Delays in listing a trial, where not attributable to the accused, do not automatically result in a more favourable sentence; the court examines the full picture of parity and subjective circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter: 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 28(4)(b), 44

Cases:
- Postiglione v R (1995) 189 CLR 295 (parity principle)
- R v Previtera (1997) 94 A Crim R 76
- R v Bollen (1998) 99 A Crim R 510