Citation: R v Edward David Zammit [2008] NSWSC 317
Court: Supreme Court of New South Wales
Date: 9 April 2008
Judge(s): Howie J
Background
The offender, a 55-year-old man, was originally charged with the murder of his de facto partner following a series of events in mid-May 2006. During committal proceedings in May 2007, he indicated a willingness to plead guilty to manslaughter on the basis of an unlawful and dangerous act, and the Crown accepted that plea in September 2007.
The agreed facts described two separate assaults on the deceased at their shared unit in Sydney, both occurring while the offender was intoxicated. On the first occasion, he threw the deceased forcefully into a refrigerator and bench top during an argument; on the second morning, he threw her into a cupboard. The deceased suffered fractured ribs and a fractured hyoid bone, and died in hospital on 22 May 2006 from a hypoxic brain injury.
The offender initially denied any violence to police, claiming the deceased had choked on a sandwich. He later admitted his responsibility prior to a further police interview, telling officers he needed to "get something off his chest."
Legal Issues
- What was the appropriate sentence for manslaughter by an unlawful and dangerous act in a domestic violence context?
- How should the offender's significant criminal history, including prior violence, affect the sentence?
- What weight should be given to the offender's serious medical condition, his history of alcohol addiction, and his background of childhood abuse?
- What discount applied for the guilty plea entered during committal proceedings?
- Was there a basis for finding special circumstances to adjust the ratio of non-parole period to total sentence?
Decision
Howie J assessed the objective seriousness of the offending as below the mid-range for manslaughter. The two assaults were described as forceful throws rather than punches, kicks, or weapon use. Death resulted from a complication of injuries that were not necessarily fatal in themselves, and the intoxication of both parties contributed to delays in seeking medical help.
The court accepted that the offender had a difficult and violent upbringing, had been heavily dependent on alcohol since his mid-twenties, and was in serious ill-health at the time of sentencing. His medical condition was found to make custody more burdensome and to justify a finding of special circumstances, which altered the standard ratio between the non-parole period and the balance of term.
On the criminal history, the court noted prior convictions for assault and grievous bodily harm but observed that the last serious violence offence was some years before the killing. The history did not operate as an aggravating factor on those facts, though the offender gained no benefit from it either.
The court held that denunciation and general deterrence were important sentencing considerations given the significance of domestic violence, citing the Court of Criminal Appeal's decision in R v Hamid. Individual deterrence was not considered a necessary element in the circumstances. A 20 per cent discount was applied for the guilty plea entered during committal, reducing the sentence from a notional eight years to six years and three months.
Orders Made
- The offender sentenced to a total term of imprisonment of 6 years and 3 months.
- Non-parole period of 4 years, commencing 1 June 2006 and expiring 31 May 2010.
- Balance of term of 2 years and 3 months, commencing 1 June 2010.
Key Takeaways
- Howie J placed this manslaughter below the mid-range of objective seriousness, distinguishing it from more serious domestic violence killings involving repeated beatings, weapons, or a sustained pattern of abuse.
- General deterrence and denunciation carry particular weight in domestic violence sentencing, as confirmed by reference to the Court of Criminal Appeal's decision in R v Hamid [2006] NSWCCA 302.
- A serious and ongoing medical condition can constitute special circumstances justifying a departure from the standard non-parole period ratio, particularly where ill-health makes custody more onerous and affects prospects on release.
- A guilty plea entered during committal proceedings attracted a 20 per cent discount from the sentence that would otherwise have been imposed.
- Prior convictions for violence do not automatically operate as an aggravating factor where sufficient time has elapsed since the last serious offence; the court assessed the history as neither aggravating nor mitigating in this instance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW) (manslaughter by unlawful and dangerous act, maximum penalty 25 years imprisonment)
Cases:
- R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 (general deterrence and denunciation in domestic violence sentencing)