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Supreme Court 7 December 2012

R v O'Brien; Williams; McManus

[2012] NSWSC 1503

HomicideDrugsTheft & property
CRIMINAL LAW SENTENCING CROWN CONCESSIONS ATTEMPTED ROBBERY

Citation: R v O'Brien; Williams; McManus [2012] NSWSC 1503
Court: Supreme Court of NSW
Date: 7 December 2012
Judge: Price J

Background

Three offenders, originally charged with murder, pleaded guilty to the manslaughter of Alfred Lee and to attempted robbery in company. The pleas were accepted by the Crown in full satisfaction of the indictment. The Crown also accepted that it could not prove who fired the gun that killed Mr Lee, that the offenders knew a gun was present, or that any of them intended to kill or cause grievous bodily harm.

The offenders had arranged to purchase 2,000 ecstasy tablets from a group of suppliers. Rather than pay for the drugs, they travelled in convoy to the agreed meeting point in Stanmore with the intention of robbing the suppliers. During that attempted robbery, Mr Lee, who had arrived with the drugs, was shot in the head and killed.

Each offender was sentenced on the basis that he contemplated only the possibility of some harm below grievous bodily harm occurring during the robbery. The agreed facts did not permit the court to distinguish between the roles each individual played, so all three were treated as equally responsible for both offences, with their subjective circumstances assessed separately.

  • What sentence was appropriate for each offender for manslaughter by unlawful and dangerous act, given the Crown's concessions about knowledge of the weapon and intent?
  • How should the parity principle apply when co-offenders bear equal responsibility but have different subjective circumstances?
  • What guilty plea discount was appropriate, and whether special circumstances warranted a non-standard ratio between non-parole period and balance of term?
  • How should the sentences for manslaughter and attempted robbery be structured (concurrently or cumulatively)?

Decision

Price J approached sentencing by first establishing the agreed factual foundation common to all three offenders. Each was to be sentenced on the basis that he neither fired the gun nor knew of its presence, and that the collective contemplation extended only to some minor harm in the course of the robbery. That factual foundation, flowing from the Crown's concessions, significantly shaped the nature of the criminality assessed.

The court applied the parity principle, noting that while co-offenders' individual roles can sometimes warrant differentiated sentences, the agreed facts here made it impossible to assign distinct roles. All three were treated as equally responsible for the offences. Nonetheless, the court assessed each offender's subjective case separately, consistent with the High Court's guidance in Green v The Queen; Quinn v The Queen.

A guilty plea discount of 15 per cent was applied to each sentence. The court found special circumstances in each case, justifying a longer than usual balance of term relative to the non-parole period, which it linked to the need for supervised reintegration after what would be substantial periods of custody. Williams received a marginally heavier sentence than his co-offenders, reflecting differences in his subjective circumstances.

The sentences for the attempted robbery were structured as fixed terms, running concurrently with the earlier portion of the manslaughter sentences, so that the manslaughter non-parole period effectively governed each offender's earliest release date.

Orders Made

Christopher William O'Brien:
- Manslaughter: non-parole period of 5 years 6 months (commencing 17 December 2010, expiring 16 June 2016); balance of term 2 years 4 months (expiring 16 October 2018)
- Attempted robbery: fixed term of 4 years 3 months (commencing 17 December 2010, expiring 16 March 2015)
- Earliest parole eligibility: 16 June 2016

Thomas Hugh McManus:
- Manslaughter: non-parole period of 5 years 4 months (commencing 3 March 2011, expiring 2 July 2016); balance of term 2 years 4 months (expiring 2 November 2018)
- Attempted robbery: fixed term of 4 years 1 month (commencing 3 March 2011, expiring 2 April 2015)
- Earliest parole eligibility: 2 July 2016

Bryce Marc Williams:
- Manslaughter: non-parole period of 5 years 9 months (commencing 17 December 2010, expiring 16 September 2016); balance of term 2 years 4 months (expiring 16 January 2019)
- Attempted robbery: fixed term of 4 years 6 months (commencing 17 December 2010, expiring 16 June 2015)
- Earliest parole eligibility: 16 September 2016

Key Takeaways

  • Where the Crown concedes it cannot prove beyond reasonable doubt that co-offenders knew a firearm was present or intended to cause grievous bodily harm, the sentencing court must proceed on the most favourable version consistent with those concessions, materially limiting the assessed criminality even for a manslaughter resulting in death by gunshot.

  • The parity principle requires sentences for co-offenders to be broadly consistent, but does not eliminate the need to examine each offender's subjective case individually. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 confirms this dual obligation.

  • A guilty plea to manslaughter in place of a murder charge attracted a 15 per cent discount in this case, with the precise discount informed by the timing and circumstances of the plea.

  • Special circumstances can justify lengthening the balance of term beyond the standard statutory ratio, particularly where offenders will require extended supervision upon release following lengthy custodial sentences.

  • Under the sentencing structure adopted here, concurrent fixed terms for the related attempted robbery offence did not add to the effective time before parole eligibility, which was governed entirely by the manslaughter non-parole periods.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 97(1), 98, 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(3)(g)-(h), 21A(3)(i)(i)-(ii)
- Children (Criminal Proceedings) Act 1987 (NSW) s 33(1)(c2)

Cases:
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- R v Badanjak [2004] NSWCCA 395
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Hill (1981) 3 A Crim R 397
- R v Macdonald (unreported, NSWCCA, 12 December 1995)
- R v M.A.K; R v M.S.K [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
- R v Previtera (1997) 94 A Crim R 76
- R v Smith (1987) 44 SASR 587; (1987) 27 A Crim R 315
- R v Woodland [2001] NSWSC 416