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Supreme Court 23 November 2007

R v Jones & Others

[2007] NSWSC 1333

Assault & violenceHomicideFirearms & weapons
SENTENCING CONSIDERATION OF PRINCIPLES OF TOTALITY PARTIAL ACCUMULATION SPECIAL CIRCUMSTANCES PARITY

Citation: R v Jones & Others [2007] NSWSC 1333
Court: Supreme Court of New South Wales
Date: 23 November 2007
Judge(s): Buddin J

Background

Six members of the same family appeared before the Supreme Court for sentencing in connection with the death of William Smith and the wounding of Noah Henry Smith on 9 October 2005 at Kangy Angy, New South Wales. Five of the offenders (Adam Samuel Jones, Adam Jones, Samuel Mark Jones, Samuel Jones, and Elizabeth Jones) were to be sentenced for manslaughter and malicious wounding. The sixth, Lydia Jones, was to be sentenced for being an accessory after the fact to the manslaughter.

The offences arose from a joint criminal enterprise. Adam Jones also faced a charge of common assault against a further victim, Mary Rose Smith. Adam Samuel Jones had four additional firearm and ammunition offences placed before the court on a Form 1 document, to be taken into account in sentencing for the manslaughter.

The sentencing proceedings raised a range of complex issues given the number of offenders, their differing degrees of involvement, and various procedural factors including the rejection by the Crown of guilty pleas that had been offered.

  • On what factual basis should each offender be sentenced, given the nature of the joint criminal enterprise?
  • Whether offenders were entitled to a sentencing discount for guilty pleas that had been offered but not accepted by the Crown
  • How the totality principle should apply when imposing partially accumulated sentences across multiple offences for each offender
  • Whether special circumstances existed justifying an adjustment to the ratio between non-parole periods and total sentences
  • Whether parity required that sentences across the group of offenders reflect their relative culpability consistently

Decision

Buddin J sentenced each offender individually, taking into account their differing roles and levels of culpability within the joint enterprise. The five offenders convicted of manslaughter each received a head sentence for that offence of between 7 years and 8 years 3 months, with the malicious wounding sentences running partly concurrently. The court applied partial accumulation to arrive at total effective sentences.

On the question of guilty plea discounts, the court considered the principles in R v Thomson & Houlton and related authority. The court recognised that where a plea of guilty had been offered but rejected by the Crown, some discount could still be warranted, though the weight given varied across the individual offenders.

The court applied the totality principle carefully to ensure that the combination of partially accumulated sentences did not produce an outcome that was disproportionate to the overall criminality. Where appropriate, the court found special circumstances that justified a longer than standard balance of term, allowing for more extended supervision on parole.

Parity between co-offenders was considered throughout, with differences in sentence reflecting genuine differences in culpability, role, and individual circumstances. Lydia Jones, whose role as accessory after the fact was materially less serious, received a two-year good behaviour bond rather than a custodial sentence.

Orders Made

Adam Samuel Jones:
- Malicious wounding of Noah Henry Smith: fixed term of 18 months imprisonment from 9 October 2005 (no non-parole period imposed)
- Manslaughter of William Smith (Form 1 offences taken into account): 8 years 3 months, non-parole period of 5 years 3 months, commencing 9 July 2006
- Total effective sentence: 9 years imprisonment, non-parole period of 6 years

Adam Jones:
- Malicious wounding: fixed term of 18 months from 26 October 2005 (no non-parole period)
- Common assault of Mary Rose Smith: 4 months from 26 July 2006 (no non-parole period)
- Manslaughter: 8 years 3 months, non-parole period of 5 years 3 months, commencing 26 July 2006
- Total effective sentence: 9 years imprisonment, non-parole period of 6 years

Samuel Mark Jones:
- Malicious wounding: fixed term of 18 months from 27 June 2007 (no non-parole period)
- Manslaughter: 8 years 3 months, non-parole period of 5 years 3 months, commencing 27 March 2008
- Total effective sentence: 9 years imprisonment, non-parole period of 6 years

Samuel Jones:
- Malicious wounding: fixed term of 18 months from 26 October 2005 (no non-parole period)
- Manslaughter: 7 years 9 months, non-parole period of 4 years 9 months, commencing 26 July 2006
- Total effective sentence: 8 years 6 months imprisonment, non-parole period of 5 years 6 months

Elizabeth Jones:
- Malicious wounding: fixed term of 12 months from 30 May 2007 (no non-parole period)
- Manslaughter: 7 years, non-parole period of 4 years 6 months, commencing 30 November 2007
- Total effective sentence: 7 years 6 months imprisonment, non-parole period of 5 years

Lydia Jones:
- Accessory after the fact to manslaughter: released on a two-year good behaviour bond, with supervision by the Probation and Parole Service

Key Takeaways

  • Where multiple offenders are sentenced for offences arising from a joint criminal enterprise, the sentencing court must assess each person's individual role and culpability rather than applying a uniform outcome across the group.
  • A guilty plea offered but not accepted by the Crown may still attract some discount at sentence, though the extent of that discount depends on the circumstances of each individual offender.
  • The totality principle requires the court to assess whether partially accumulated sentences, taken together, are proportionate to the offender's overall criminality, and to adjust accordingly.
  • Special circumstances can justify extending the balance of term beyond the standard ratio, enabling a longer period of post-release supervision where rehabilitation or other factors warrant it.
  • Parity between co-offenders does not demand identical sentences; it requires that differences in sentence be explicable by genuine differences in culpability, role, or relevant personal circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Cameron v The Queen (2002) 209 CLR 339
- GAS v The Queen; SKJ v The Queen (2004) 217 CLR 198
- MAH v R [2006] NSWCCA 226
- Postiglione v The Queen (1997) 189 CLR 295
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Simpson (2001) 53 NSWLR 704
- R v Olbrich (1999) 199 CLR 270
- R v Previtera (1997) 94 A Crim R 76
- R v Isaacs (1997) 41 NSWLR 374
- R v Hill (1981) 3 A Crim R 397
- R v Jules [2007] NSWCCA 243
- R v Yildiz (2006) 160 A Crim R 218
- R v Forbes (2005) 160 A Crim R 1
- R v FD & JD (2006) 160 A Crim R 392
- Williams & Saunders v Regina [2006] NSWCCA 33
- Various other NSW Supreme Court and Court of Criminal Appeal decisions cited in the judgment