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Supreme Court 17 November 2006

R v Clay, Lonsdale and JM

[2006] NSWSC 1220

Assault & violenceHomicide
SENTENCE UNLAWFUL AND DANGEROUS ACT OFFENDERS ACTING IN CONCERT STRONG SUBJECTIVE FEATURES PARITY

Citation: R v Clay, Lonsdale and JM [2006] NSWSC 1220
Court: Supreme Court of New South Wales
Date: 17 November 2006
Judge(s): Buddin J

Background

In the early hours of New Year's Day 2005, a brawl broke out in a residential street at Bidwill in Western Sydney. The victim, a 38-year-old man, had gone to a neighbour's address to apologise for earlier altercations during a street celebration. The situation escalated into a group assault involving multiple offenders.

Two adult offenders (Clay and Lonsdale) and one juvenile offender (JM) were originally charged with murder. All three ultimately pleaded guilty to reduced charges: Clay and Lonsdale to manslaughter, and JM to affray. A fourth co-accused had proceedings against him discontinued before trial.

The sentencing hearing proceeded over multiple dates between August and November 2006. Buddin J was required to assess the appropriate penalty for each offender while accounting for their differing roles, personal circumstances, and the principle of parity between co-offenders.

  • What sentences were appropriate for two adults convicted of manslaughter arising from an unlawful and dangerous act committed in concert?
  • What weight should be given to guilty pleas, including their timing and the evidentiary difficulties the Crown would have faced at trial?
  • How should the court apply the parity principle when co-offenders played different roles in the same fatal incident?
  • What was the appropriate disposition for the juvenile offender convicted of affray, given his time already spent in custody and his subjective circumstances?

Decision

Buddin J sentenced Clay to a total term of five years imprisonment with a non-parole period of three years. Lonsdale received a heavier sentence of six years and eight months, with a non-parole period of four years. The difference reflected Lonsdale's greater culpability: he had arrived at the scene armed with a mattock handle approximately one metre in length and struck the deceased with it while the deceased was on the ground.

Clay's role, while serious, was assessed as less grave than Lonsdale's. Clay had punched the deceased during the initial altercation and remained at the scene lending support to the joint enterprise, but he was not armed. His sentence reflected strong subjective features, including no prior criminal history, evidence of good character, youth, and genuine prospects of rehabilitation. His plea, though not entered at the earliest opportunity, attracted a discount, partly because of the genuine difficulties the Crown would have faced in proving its case.

The juvenile offender JM had kicked and punched the deceased while he was on the ground. However, JM had already spent nearly 12 months in custody before being discharged by a magistrate at committal. The Crown expressly conceded that this pre-sentence custody was sufficient. Buddin J noted JM's youth, lack of prior convictions, continued employment, and contrition, including his voluntary attendances at court when not required to appear.

For the affray conviction, Buddin J exercised the sentencing discretion available under the Children (Criminal Proceedings) Act 1987 and declined to impose a further custodial term on JM.

Orders Made

  • Clay (manslaughter): Non-parole period of 3 years from 5 January 2005, expiring 4 January 2008; total sentence of 5 years expiring 4 January 2010; eligible for parole on 4 January 2008.
  • Lonsdale (manslaughter): Non-parole period of 4 years from 21 January 2005, expiring 20 January 2009; total sentence of 6 years and 8 months expiring 20 September 2011; eligible for parole on 20 January 2009.
  • JM (affray): Convicted; released on a good behaviour bond for 9 months under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987, on condition he appear before the Court if called upon during the bond period.

Key Takeaways

  • Sentences for co-offenders in the same fatal group assault can differ substantially where one offender was armed and delivered blows to a downed victim, even where all acted in concert.
  • A guilty plea attracted a sentencing discount even where it was not entered at the earliest possible stage, where the Crown would have faced genuine evidentiary difficulties establishing the charge at trial.
  • The parity principle required Buddin J to calibrate sentences across co-offenders by reference to their individual culpability and subjective circumstances, not simply their formal charge or plea.
  • Under the Children (Criminal Proceedings) Act 1987, a juvenile offender who had already served substantial pre-sentence custody could appropriately receive a good behaviour bond rather than further imprisonment, particularly where the Crown conceded no additional custodial term was warranted.
  • Strong subjective features, including no prior criminal history, youth, employment, and demonstrated contrition, carried significant weight in mitigation across all three offenders.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases cited (selected):
- MAH v R [2006] NSWCCA 226
- Postiglione v The Queen (1997) 189 CLR 295
- R v AEM (Snr) & Ors [2002] NSWCCA 58
- R v Andrews (2006) 160 A Crim R 505
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- R v Cameron (2002) 209 CLR 339
- R v FD & JD (2006) 160 A Crim R 392
- R v Harmouche (2005) 158 A Crim R 357
- R v MD, BM, NA and JT (2005) 156 A Crim R 372
- R v Simpson (2001) 53 NSWLR 704
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Trevenna (2004) 149 A Crim R 505