Citation: R v Owen Henry FRAZER, R v William Wayne SPENCER [2007] NSWSC 1449
Court: Supreme Court of New South Wales
Date: 11 December 2007
Judge(s): Howie J
Background
In the early hours of 11 January 2005, the deceased was shot dead in his bedroom during what the Crown established was a planned armed robbery at his home. Three men were charged with murder: Spencer, who orchestrated the plan; Wilson, who carried a firearm; and Frazer, who accompanied Wilson into the premises. A jury acquitted all three of murder but convicted Wilson of murder and convicted Spencer and Frazer of manslaughter.
The Crown's case was that the deceased had recently returned from Queensland carrying a large sum of money obtained through an armed robbery of his own. Spencer, who was living at the deceased's home, arranged for Wilson and Frazer to enter the premises and rob him. Spencer cleared other occupants from the house, left the front door ajar for his co-offenders, and was in telephone contact throughout. Two shots were fired inside the residence, killing the deceased.
Each offender gave evidence at trial that the shooting was accidental and arose from a drug transaction rather than a robbery. The jury rejected those accounts, and Howie J sentenced the two manslaughter offenders on the basis that they participated in a planned armed robbery during which the deceased was killed.
Legal Issues
- What factual basis should govern sentencing given the jury's verdicts convicting the offenders of manslaughter rather than murder?
- What sentences were appropriate for each offender, having regard to their respective degrees of culpability, criminal histories, and personal circumstances?
- Whether special circumstances existed justifying an adjustment to the standard ratio between the non-parole period and the balance of the sentence.
Decision
Howie J found no doubt about the factual basis for sentencing: this was a planned armed robbery during which the deceased was killed. The court rejected the suggestion that the offenders should be sentenced on a more favourable basis consistent with their (rejected) trial account. The killing occurred in the context of deliberate, organised criminal conduct, which significantly elevated the seriousness of the offences.
Spencer was found to bear greater culpability. He devised and instigated the plan, arranged entry to the premises, warned his co-offenders that the deceased was armed, and actively misled associates to assist in carrying it out. His criminal history was also worse than Frazer's. His sentence of 13 years reflected both his higher moral responsibility and his prior offending. Because the manslaughter sentence was cumulative on sentences he was already serving, the court calibrated the non-parole period so that it broadly represented the statutory ratio applied to his total sentencing burden.
Frazer, aged 51 at the time of sentencing, was serving his first custodial sentence in approximately 20 years. The court found special circumstances in his case on the basis that, after a lengthy sentence, he would need an extended period of supervised parole to readjust to the community. This justified a modest reduction to the non-parole period, but the gravity of the offence meant the reduction could only be small. His sentence of 11 years reflected his lesser, though still significant, role in the enterprise.
Both sentences commenced from 19 May 2006, the date each offender was taken into custody.
Orders Made
- Frazer sentenced to 11 years imprisonment, comprising a non-parole period of 7 years and 6 months and a balance of term of 3 years and 6 months, commencing 19 May 2006, with parole eligibility from 18 November 2013.
- Spencer sentenced to 13 years imprisonment, comprising a non-parole period of 9 years and 6 months and a balance of term of 3 years and 6 months, commencing 19 May 2006, with parole eligibility from 18 November 2015.
Key Takeaways
- Where a jury's verdict necessarily rejects the accused's account of events, the sentencing court is entitled to proceed on the factual basis consistent with that verdict, even where the offence of conviction is manslaughter rather than murder.
- Manslaughter arising in the course of a planned armed robbery is treated as a serious instance of the offence, even though the offender was not convicted of a form of manslaughter requiring intent to cause grievous bodily harm or death.
- Greater culpability as the instigator and organiser of a joint criminal enterprise, combined with a worse criminal history, will attract a meaningfully heavier sentence than that imposed on a less central participant.
- Special circumstances justifying a departure from the standard non-parole ratio can arise where an older offender is serving a first lengthy sentence after a long gap, given the extended supervision likely to be needed upon release.
- Where a manslaughter sentence is imposed cumulatively upon existing sentences, the court may adjust the non-parole period to produce a result consistent with the statutory ratio applied to the offender's total period of imprisonment.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 112(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)
Cases
- R v Mostyn (2004) 145 A Crim R 304
- R v Way (2004) 60 NSWLR 168
- R v Charman [2007] NSWSC 1177
- R v Dang [2001] NSWCCA 321
- R v Denton [2001] NSWSC 850