AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
5
Court of Criminal Appeal 26 June 2009

Jones v R

[2009] NSWCCA 169

Assault & violenceHomicideDomestic & family violence
CRIMINAL LAW SENTENCING WHETHER SENTENCES MANIFESTLY EXCESSIVE

Citation: Jones v R [2009] NSWCCA 169
Court: NSW Court of Criminal Appeal
Date: 26 June 2009
Judge(s): Young JA, Johnson J, Latham J

Background

The applicant was a young member of a Romany gypsy family who became embroiled in a violent confrontation with members of a related family at a caravan park on the NSW Central Coast in the early hours of 9 October 2005. The trouble began the previous evening as a trivial argument, which escalated when the applicant produced a knife and threatened to use it against the deceased. After an apparent truce, members of both families regrouped, and a large-scale violent incident followed.

The applicant was convicted of the manslaughter of one man, the malicious wounding of another, and the common assault of a teenage girl. He was sentenced in the NSW Supreme Court by Buddin J in November 2007. His total effective sentence was nine years' imprisonment with a non-parole period of six years, running from 26 October 2005.

The applicant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the sentences were manifestly excessive.

  • Whether the sentences imposed by Buddin J were manifestly excessive, having regard to both the objective circumstances of the offences and the subjective circumstances of the applicant.
  • Whether the 15% discount applied for the applicant's guilty pleas was appropriate, given that those pleas were first offered just prior to the commencement of trial.

Decision

Johnson J (with whom Young JA and Latham J agreed) dismissed the appeal, finding that no error in Buddin J's sentencing exercise had been demonstrated. The sentencing judge had carefully assessed the objective and subjective circumstances of the case, including the applicant's youth, his insular family environment and his degree of influence by his father, as well as his significant role in escalating the confrontation.

The Court noted that Buddin J had specifically found the applicant bore responsibility for turning the initial verbal argument into something far more serious by producing the knife. The applicant was also found to have been part of a joint criminal enterprise, having committed offences of violence against three separate victims, including being criminally responsible for a death in circumstances of clearly excessive self-defence.

On the guilty plea discount, the Court found no error in the 15% reduction applied, noting that the pleas were first offered on the eve of trial. The Court observed this figure fell within the available discretionary range consistent with established principles.

The Court also noted that sentencing statistics for manslaughter provide little assistance in such cases. The circumstances and degree of criminality in manslaughter cases can vary enormously, making the sentencing judge's assessment a highly individualised exercise. The sentences were found to be well within the available discretionary range and plainly open on the facts.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a ground of manifest excess requires an applicant to demonstrate that the sentence was unreasonable or plainly unjust, not merely arguable or at the higher end of the range.
  • Sentencing statistics for manslaughter carry limited weight in appellate review, because the circumstances and criminality of such offences vary so widely that comparisons between cases offer little reliable guidance.
  • A guilty plea discount of 15% was upheld as within the proper discretionary range where pleas were entered for the first time immediately before trial, consistent with the principles summarised in Borkowski v R [2009] NSWCCA 102.
  • Participation in a joint criminal enterprise involving a public affray, where an offender is armed and commits violence against multiple victims, represents a serious category of offending that warrants substantial cumulative sentences.
  • Where an applicant's youth and family influence are acknowledged as mitigating factors, those considerations do not necessarily reduce a sentence where the applicant nonetheless played a significant and causative role in the violence.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- R v Jones and Ors [2007] NSWSC 1333
- R v Fernando (1992) 76 A Crim R 58
- Robertson v R (2007) 177 A Crim R 121
- Ward v R (2006) 166 A Crim R 273
- Salah v R [2009] NSWCCA 2
- R v Vachalec (1981) 1 NSWLR 351
- R v O'Donoghue (1988) 34 A Crim R 397
- House v The King (1936) 55 CLR 499
- Kardoulias v The Queen (2005) 159 A Crim R 252
- R v Baker [2000] NSWCCA 85
- Markarian v The Queen (2005) 228 CLR 357
- R v Kelly (2005) 155 A Crim R 499
- Borkowski v R [2009] NSWCCA 102
- Stewart v R [2009] NSWCCA 152
- Hopley v R [2008] NSWCCA 105