Citation: Daniel Clayton Scott v R [2011] NSWCCA 221
Court: Court of Criminal Appeal, NSW
Date: 7 October 2011
Judge(s): Bathurst CJ, James J, Johnson J
Background
The appellant pleaded guilty in the Supreme Court to two offences arising from events in May 2000: being an accessory before the fact to aggravated assault with intent to rob while armed with a dangerous weapon, and being an accessory before the fact to manslaughter. The victim was a business associate with whom the appellant had a long-running commercial dispute over a brothel business and the transfer of the appellant's family home.
The appellant had arranged for two former army acquaintances to confront, intimidate, and rob the victim. He provided them with a pistol, a photograph of the victim, and a plan of the victim's house. The two principal offenders went further than the appellant anticipated: during the confrontation, they shot the victim multiple times while he lay on the ground, killing him. The appellant was sentenced on the basis that a reasonable person in his position would have appreciated an appreciable risk of serious injury, though he neither intended nor anticipated the victim's death.
Hidden J in the Supreme Court imposed a fixed term of five years for the assault offence and a sentence of 11 years (with an eight-year non-parole period) for the manslaughter offence, with the sentences partly cumulative, producing a total head sentence of 12 years and a combined non-parole period and fixed term of nine years. The appellant sought leave to appeal against those sentences.
Legal Issues
- Whether the sentencing judge erred by failing to apply the sentencing range applicable at the time of the offences in 2000, rather than the range prevailing at the time of sentencing
- Whether the sentencing judge erred by making the sentences for the two offences partly cumulative, given the argument that the criminality of the assault offence was wholly subsumed within the criminality of the manslaughter offence
Decision
Sentencing range at time of offence: James J (with whom Bathurst CJ and Johnson J agreed) examined the sentencing practice for manslaughter in New South Wales as it stood around 2000, drawing on a range of comparable cases. His Honour concluded that the sentences imposed by Hidden J were within the range that would have been appropriate at the time the offences were committed, and that no error was established on this ground.
Partial cumulation of sentences: The appellant argued that the assault offence arose from the same criminal enterprise as the manslaughter, and that making the sentences partly cumulative amounted to double punishment for the same conduct. The court noted that counsel for the appellant at the original sentencing had in fact accepted that some cumulation (of around one year) was appropriate, which explained why the sentencing judge did not address the issue in his remarks.
James J held it was open to the sentencing judge to identify separate criminality within each offence. Although both offences arose from one plan, that plan contained a distinct component directed at robbery and a distinct component directed at intimidation and physical harm. The robbery component involved a specific aggravating feature, namely that the attack was to occur at the victim's home where cash was believed to be concealed, which was not an element of the manslaughter charge. Partial cumulation was therefore within the sentencing judge's discretion.
Both grounds of appeal were rejected.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- Where a significant delay separates the commission of an offence from sentencing, the sentencing court is required to have regard to the sentencing range applicable at the time the offence was committed, not simply the range prevailing at the date of sentence.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may make sentences for two offences arising from the same general plan partly cumulative, provided separate criminality can be identified within each offence.
- Aggravating features that attach to one offence but not another can be sufficient to distinguish the criminality of each charge, even where both offences arise from a single criminal enterprise.
- A concession made by an appellant's counsel at the original sentencing proceedings may be relevant on appeal: the court treated the prior acceptance of partial cumulation as explaining the absence of reasons on that point in the sentencing remarks.
- Under s 346 of the Crimes Act, an accessory before the fact to a serious indictable offence is liable to the same maximum penalty as the principal offender.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), ss 18, 24, 97(2), 346
- Criminal Appeal Act (NSW), s 6(3)
Cases:
- R v MJR (2002) 54 NSWLR 368
- R v Frazer and Spencer [2007] NSWSC 1449
- R v Shore (1992) 66 A Crim R 37
- R v Moon (2000) 117 A Crim R 497
- R v PLV (2001) 51 NSWLR 736
- R v Puta and Ors [2001] NSWSC 225
- R v Nikau [1999] NSWCCA 322
- R v Marsh [2001] NSWSC 1109
- R v Clissold [2002] NSWCCA 356
- Cahyadi v R (2007) 168 A Crim R 41
- Pearce v The Queen (1998) 194 CLR 610