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Supreme Court 2 September 2005

R v Percy, Arnold, Isaacs, Sulman

[2005] NSWSC 1244

Assault & violenceHomicide
SENTENCE MANSLAUGHTER ACCESSORY BEFORE AND AFTER FACT.

Citation: R v Percy, Arnold, Isaacs, Sulman [2005] NSWSC 1244
Court: Supreme Court of New South Wales
Date: 2 September 2005
Judge(s): Latham J

Background

In the late afternoon of 11 September 2003, Grant Whitney was lured to a home in Mortdale under the pretence of a social visit. The offender Shane Percy then fatally assaulted Whitney with an implement, most likely a pool cue, striking him repeatedly to the head and body. Percy subsequently bound Whitney's wrists and ankles, wrapped his body in a sheet, and disposed of it in the boot of a vehicle at a truck stop in Lucas Heights.

The assault was motivated by two grievances: a mistaken belief that Whitney had sexually assaulted the teenage daughter of Percy and his de facto partner Vicki Arnold, and Whitney's earlier theft of items from their home. The three remaining offenders, Arnold, Gillian Isaacs, and Jason Sulman, each played roles either in facilitating the events leading to the killing or in helping Percy avoid detection afterward.

Isaacs had invited Whitney to her home knowing he would be assaulted, then left to create an alibi. Arnold had played a role in drawing Whitney to the location and subsequently assisted Percy in covering up the crime. Sulman assisted after the fact by participating in the disposal or concealment of evidence. All four were sentenced on the same day.

  • What sentence was appropriate for Percy on the charge of manslaughter, having regard to the objective seriousness of the offence and his personal circumstances?
  • What sentences were appropriate for Arnold and Isaacs, each convicted of both accessory before the fact and accessory after the fact to manslaughter?
  • What sentence was appropriate for Sulman, convicted as an accessory after the fact to manslaughter?
  • How should the discount for late guilty pleas be applied across the four offenders?
  • What weight should be given to each offender's personal circumstances, remorse, rehabilitation prospects, and the relative culpability of each?

Decision

Latham J sentenced Percy to a total term of nine years for manslaughter, comprising a five-year non-parole period commencing 4 August 2004. Her Honour treated the offence as objectively serious: the killing was premeditated, deliberately brutal, and followed by calculated steps to conceal the crime. Notwithstanding Percy's personal circumstances and any discount for his plea, the gravity of taking a human life by repeated, sustained violence warranted a substantial custodial sentence.

Arnold was sentenced on two charges: accessory before the fact and accessory after the fact to manslaughter. Her role in the lead-up to the killing, including helping lure Whitney and then assisting Percy afterward, placed her culpability above that of Isaacs. Her Honour imposed a three-year term for the accessory before the fact (with an 18-month non-parole period) and a three-year term for the accessory after the fact (with a 12-month non-parole period), structured to reflect the totality of her offending.

Isaacs received shorter sentences on both accessory charges, reflecting that her culpability was assessed as somewhat lower than Arnold's. Her role in inviting Whitney to her home while knowing he would be assaulted, and then manufacturing an alibi, was nonetheless treated as serious facilitation of a killing. Her Honour noted Isaacs' otherwise productive life and positive rehabilitation prospects, but confirmed that a custodial sentence was the only appropriate outcome.

Sulman's involvement arose entirely after the killing. His assistance in concealing the offence, and his failure to report it to police, attracted a sentence of 32 months with a non-parole period of 19 months. His culpability was assessed as the lowest among the four. A 15 percent discount applied to his sentence, as with the others, reflecting that his guilty plea was entered on the date fixed for trial rather than at an early stage. His time served in protective custody was acknowledged as making his imprisonment more onerous.

Orders Made

  • Shane Percy (manslaughter): Non-parole period of 5 years from 4 August 2004, expiring 3 August 2009; balance of term 4 years, expiring 3 August 2013.
  • Vicki Arnold (accessory before the fact): Non-parole period of 18 months from 5 February 2004, expiring 4 August 2005; balance of 18 months, expiring 4 February 2007.
  • Vicki Arnold (accessory after the fact): Non-parole period of 12 months from 5 February 2005, expiring 4 February 2006; balance of 2 years, expiring 4 February 2008.
  • Gillian Isaacs (accessory before the fact): Non-parole period of 12 months from 5 February 2004, expiring 4 February 2005; balance of 12 months, expiring 4 February 2006.
  • Gillian Isaacs (accessory after the fact): Non-parole period of 13 months from 5 August 2004, expiring 4 September 2005; balance of 11 months, expiring 4 August 2006.
  • Jason Sulman (accessory after the fact): Non-parole period of 19 months from 5 February 2004, expiring 4 September 2005; balance of term expiring 4 February 2006.

Key Takeaways

  • Latham J confirmed that a premeditated, brutal killing followed by deliberate concealment of the body attracts a substantial head sentence for manslaughter, even where the offender raises matters of personal mitigation.
  • Accessory before the fact liability, where an offender actively facilitates the circumstances of a killing by luring the victim, was treated as materially more serious than accessory after the fact liability arising from concealment and non-disclosure.
  • A guilty plea entered on the date fixed for trial attracted only a 15 percent discount across all four offenders, reflecting the limited utilitarian value of a late plea.
  • Relative culpability among co-offenders was carefully calibrated: the principal offender received the longest sentence, with accessory sentences graded according to the nature, timing, and degree of each participant's involvement.
  • The fact that an offender served part of remand in protective custody was recognised as a factor making the period of incarceration more onerous, and was taken into account in the overall sentencing exercise.

Legislation and Cases Referenced

Cases:
- The Queen v Hill (1981) 3 A Crim R 397
- Regina v Woodland [2001] NSWSC 416

Legislation: No specific legislation was cited in the text of the judgment provided.