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Court of Criminal Appeal 12 April 2011

R v WEST, Justin

[2011] NSWCCA 91

Homicide
CRIMINAL LAW SENTENCE CROWN APPEAL MANSLAUGHTER 18 YEAR OLD OFFENDER SPONTANEOUS KILLING WHILE INTOXICATED

Citation: R v West [2011] NSWCCA 91
Court: Court of Criminal Appeal, New South Wales
Date: 12 April 2011
Judge(s): Whealy JA, Hidden J, Johnson J

Background

The respondent, an 18-year-old man, pleaded guilty to manslaughter arising from the death of his sister's partner at the family home in Orange on 4 September 2009. After a day of heavy drinking and cannabis use, a fight broke out between the two men in the kitchen. During the scuffle, the respondent grabbed a pair of scissors and stabbed the victim once in the chest, fatally penetrating his heart.

The basis of the manslaughter charge was an unlawful and dangerous act. There was no prior animosity between the men, and it was accepted that the respondent had no intention to kill or cause serious injury. The sentencing judge in the District Court described it as a tragic outcome of a prolonged drinking and drug-taking session.

The respondent had a criminal history dealt with in the Children's Court, including two counts of assault occasioning actual bodily harm. Psychological evidence indicated low intelligence, a history of substance abuse since age 15, and a risk of re-offending. The District Court sentenced him to six years' imprisonment with a non-parole period of two years. The Crown appealed on the ground that the non-parole period was manifestly inadequate.

  • Whether the non-parole period of two years, against a head sentence of six years, was manifestly inadequate for manslaughter.
  • Whether the disproportion between the non-parole period and the head sentence (one-third versus the statutory norm of three-quarters) was justified by a finding of special circumstances.
  • Whether the Court of Criminal Appeal should intervene and resentence the respondent, or decline to do so in the exercise of its discretion.

Decision

The Court found that the non-parole period of two years was manifestly inadequate. Although the sentencing judge was entitled to find special circumstances given the respondent's youth, intellectual limitations, and need for rehabilitation, that finding could not justify reducing the non-parole period to such a degree. The head sentence itself was not challenged; the Crown's complaint was directed solely at the disproportionately short minimum term.

Johnson J, with whom the other judges agreed, observed that the non-parole period must still reflect the objective gravity of the offending and the need for general deterrence. This is particularly so for alcohol-fuelled manslaughter, a category of offending where general deterrence carries significant weight. A non-parole period of two years, representing only one-third of the six-year head sentence, fell well short of what the justice of the case required.

The Court rejected any discretionary basis for declining to intervene. Johnson J was satisfied that the departure from an appropriate non-parole period was sufficient to make intervention both necessary and appropriate. The respondent was resentenced with a non-parole period of three years, preserving the head sentence of six years and confirming the sentencing judge's recommendation that the respondent have access to drug and alcohol counselling and education programmes while in custody.

Orders Made

  • Crown appeal allowed.
  • Sentence imposed in the District Court quashed.
  • Respondent resentenced to imprisonment with a non-parole period of three years, commencing 4 September 2009 and expiring 3 September 2012, with a balance of term of three years commencing 4 September 2012 and expiring 3 September 2015.
  • Earliest eligible parole date confirmed as 3 September 2012.
  • Recommendation confirmed that the respondent have access in custody to drug and alcohol counselling, education, and skills training.

Key Takeaways

  • A finding of special circumstances can justify a non-parole period below the statutory proportion, but it cannot reduce the minimum term to a level that fails to reflect the objective gravity of the offence or the requirements of general deterrence.
  • General deterrence holds particular weight in sentencing for alcohol-fuelled involuntary manslaughter, and a non-parole period must not be so low as to undermine that purpose even where significant subjective factors favour leniency.
  • The Court of Criminal Appeal confirmed that youth, low intellectual capacity, and a need for post-release rehabilitation are relevant factors supporting special circumstances, but these do not operate without limit on the length of the non-parole period.
  • In dismissing the discretionary case for non-intervention, the Court applied the principle that where a non-parole period is so far below what justice requires, intervention is both necessary and appropriate regardless of other discretionary considerations.
  • Sufficient weight must be given to the interests of justice in fixing an appropriate minimum term, especially in cases of serious violence resulting in death.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW)

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Wilson v The Queen (1991-2) 174 CLR 313
- R v Carroll [2010] NSWCCA 55; 200 A Crim R 284
- R v JW [2010] NSWCCA 49; 199 A Crim R 486
- R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
- R v Burton [2008] NSWCCA 128
- Maglis v R [2010] NSWCCA 247
- Hejazi v R [2009] NSWCCA 282
- R v Simpson [2001] NSWCCA 535; 53 NSWLR 704
- R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
- R v MD [2005] NSWCCA 156
- R v Ceissman [2004] NSWCCA 466
- R v Fidow [2004] NSWCCA 172
- R v Cramp [2004] NSWCCA 264
- R v Harris [2007] NSWSC 1417
- R v Kennedy [2008] NSWSC 703
- R v Mills [2009] NSWSC 521
- R v Doolan [2010] NSWSC 615
- R v Hamshere [2005] NSWSC 1319