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Supreme Court 13 October 2006

Regina v Jukes

[2006] NSWSC 1065

HomicideDomestic & family violence
CRIMINAL LAW SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT OFFENDER PLEADED GUILTY TO MANSLAUGHTER DOMESTIC SITUATION

Citation: Regina v Jukes [2006] NSWSC 1065
Court: Supreme Court of New South Wales
Date: 13 October 2006
Judge(s): Hoeben J

Background

The offender, a 20-year-old Aboriginal woman, pleaded guilty to the manslaughter of her mother's de facto partner following a violent domestic confrontation at a rural property near Tamworth on 13 September 2003. The deceased had been drinking heavily that day and had pushed both the offender and her mother during an argument about household cleanliness. The offender grabbed a kitchen knife from the bench; the deceased moved towards her, and the knife entered his chest, causing fatal damage to his lung and major blood vessels.

The offender was originally charged with murder. She spent 90 days in pre-sentence custody and then remained on conditional bail with twice-weekly reporting conditions for over two and a half years before sentencing. At the time of sentencing she had five young children entirely dependent on her.

There was no agreed factual basis for the plea. The Crown contended that sentencing should proceed on the basis of manslaughter by provocation or excessive self-defence, while the offender submitted the more favourable basis of manslaughter by unlawful and dangerous act. Hoeben J was required to determine the correct factual basis before proceeding to sentence.

  • On what factual basis should the offender be sentenced: manslaughter by unlawful and dangerous act, by provocation, or by excessive self-defence?
  • What weight should be given to the significant mitigating factors, including the offender's youth, Aboriginality, personal circumstances, guilty plea, and time already spent in custody and on restrictive bail?
  • Whether, notwithstanding that a sentence of imprisonment was required, that sentence should be wholly suspended under section 9 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether special circumstances existed justifying an alteration to the standard ratio of non-parole period to balance of term.

Decision

Hoeben J resolved the factual dispute in the offender's favour, finding that the appropriate basis for sentencing was manslaughter by unlawful and dangerous act. His Honour concluded that the evidence supported a finding that the offender grabbed and held the knife in the course of the altercation rather than deliberately stabbing the deceased, and that the requisite intent for provocation or excessive self-defence could not be established with sufficient confidence.

His Honour identified a substantial range of mitigating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999. These included the guilty plea entered at an early stage, the absence of prior criminal history, genuine remorse, the offender's youth and disadvantaged background, her Aboriginality (which the court treated as capable of giving rise to particular difficulties, following R v Fernando), the presence of five young children entirely dependent upon her, and the time already served in pre-sentence custody combined with the lengthy period of restrictive conditional bail.

Despite those mitigating factors, Hoeben J held that the sanctity of human life and the statutory purposes of sentencing, particularly denunciation and accountability, required that a sentence of imprisonment be imposed. A good behaviour bond alone was not considered adequate. His Honour determined that a total sentence of two years was appropriate, structured as a minimum term of 12 months followed by a balance of term of 12 months.

However, taking all mitigating circumstances together, Hoeben J exercised the discretion to suspend the sentence in full pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999. The suspension was conditioned on good behaviour for two years and on supervision by the Probation and Parole Service at Tamworth.

Orders Made

  • The offender was sentenced to imprisonment for 12 months commencing 13 October 2006 and expiring 12 October 2007, with a balance of term of 12 months expiring 12 October 2008.
  • The sentence was wholly suspended for a period of two years.
  • Conditions of suspension included: good behaviour for two years; reporting to the Probation and Parole Service at Tamworth within 48 hours of release; and compliance with the supervision and reasonable directions of that Service for two years or such lesser period as specified by the Service.

Key Takeaways

  • A sentence of imprisonment remains appropriate for manslaughter even where mitigating factors are numerous and weighty; a good behaviour bond will not always suffice to address the statutory purposes of denunciation and accountability under section 3A of the Crimes (Sentencing Procedure) Act 1999.
  • Full suspension of a term of imprisonment under section 9 is available in manslaughter cases where the accumulation of mitigating circumstances is sufficiently compelling, including factors such as youth, Aboriginality, dependent children, a guilty plea, time in pre-sentence custody, and an extended period on restrictive bail.
  • Under R v Fernando, an offender's Aboriginality is a recognised sentencing consideration that may contribute to a finding of special circumstances or otherwise inform the sentencing exercise.
  • Where no agreed factual basis for a guilty plea exists, the sentencing judge must independently determine the factual basis and may adopt the basis most favourable to the offender if the evidence does not clearly establish a more serious category of the offence.
  • The extended period the offender spent on restrictive conditional bail, over two and a half years with twice-weekly reporting, formed a material part of the sentencing calculus alongside the 90 days of pre-sentence custody already served.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 12, 21A

Cases
- R v Bogunovich (Maxwell J, 30 May 1985, unreported)
- R v Stanley Edward Fernando (1992) 76 A Crim R 58
- R v Hill (1980) 3 A Crim R 397
- R v Kennedy [2000] NSWSC 109
- R v Melrose [2001] NSWSC 847
- R v Previtera (1997) 94 A Crim R 76
- R v Roberts (Hunt J, 31 August 1989, unreported)
- R v Zamagias [2002] NSWCCA 17