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Supreme Court 11 May 2012

R v Jay William COOK

[2012] NSWSC 480

Assault & violenceHomicidePublic order & justice offences
CRIMINAL LAW SENTENCE MANSLAUGHTER SINGLE STAB WOUND DURING AFFRAY GOOD BEHAVIOUR BOND AT TIME OF OFFENCE UNREASONABLE SELF

Citation: R v Jay William Cook [2012] NSWSC 480
Court: Supreme Court of New South Wales
Date: 11 May 2012
Judge: Garling J

Background

In the early hours of 30 October 2010, two rival graffiti gangs, RK and KTS, engaged in a planned street confrontation in Cupar Place, St Andrews, in south-western Sydney. The offender, a member of the KTS gang, had agreed by phone to meet members of the RK gang for a fight. During the ensuing affray, he stabbed the deceased, a member of the RK gang, once in the chest with a knife. The wound penetrated the deceased's heart, and he died before reaching hospital.

The offender was arrested the same evening and has been in custody since. He was originally charged with murder. In 2011, he offered to plead guilty to manslaughter during Local Court proceedings, but the Crown declined that offer at the time.

On 2 April 2012, the day the matter was listed for trial, the Crown accepted the plea. An indictment for manslaughter was presented in substitution for the murder charge, and the offender pleaded guilty on that day. Garling J then proceeded to sentence.

  • What was the appropriate sentence for manslaughter by a single stab wound inflicted during a gang affray?
  • How should the plea of guilty be weighted, given the Crown had earlier rejected the same offer?
  • Whether special circumstances existed to justify departing from the standard statutory non-parole ratio of 75 per cent under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • How to balance general and specific deterrence against the offender's rehabilitation prospects, youth, and other mitigating factors

Decision

Garling J identified the offence as manslaughter on the basis of unreasonable self-defence: the offender had been struck from behind during the affray and stabbed the deceased as he advanced toward him, but the use of a knife in those circumstances exceeded what was reasonably necessary. The maximum penalty for manslaughter is 25 years' imprisonment; there is no standard non-parole period for the offence.

His Honour assessed the objective seriousness of the offence as above the middle of the range, noting that the offender had voluntarily armed himself with a knife, had agreed to participate in a planned fight, and was on a good behaviour bond at the time of the offence. Against this, Garling J accepted a number of mitigating factors: the offender's youth (he was in his late teens at the time), his genuine remorse, the absence of prior violence, good prospects of rehabilitation, and the fact that he had spent time in custody since the night of the offence.

On the plea discount, his Honour noted that the Crown had declined the same offer in 2011 and that the plea was ultimately entered on the day of trial. Garling J allowed a 25 per cent reduction on that basis, bringing the total term from a notional 10 years down to 7 years and 6 months.

Garling J found special circumstances justifying a departure from the statutory 75 per cent non-parole ratio. The offender's youth, the fact that this was his first period of incarceration, and the need for a lengthy period of supervised parole to support rehabilitation all combined to support reducing the non-parole period to approximately 55 per cent of the total sentence, fixing the non-parole period at 4 years.

Orders Made

  • The offender was convicted of manslaughter.
  • Sentenced to imprisonment with a non-parole period of 4 years, commencing 30 October 2010 and concluding 29 October 2014.
  • Balance of term of 3 years and 6 months, concluding 29 April 2018.
  • First eligible date for release: 29 October 2014.

Key Takeaways

  • For manslaughter arising from an affray, a sentencing court must weigh general deterrence and the denunciation of violence that results in death heavily, even where the offending is not at the highest range of objective seriousness.
  • A 25 per cent guilty plea discount was applied where the offender had offered to plead guilty to manslaughter in earlier proceedings and the Crown had declined that offer before ultimately accepting it on the day of trial.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the statutory 75 per cent non-parole ratio can be varied where special circumstances are established; here, the offender's youth, first period of incarceration, and need for extended post-release supervision collectively satisfied that test.
  • Voluntary arming before a planned confrontation and offending while on a good behaviour bond were treated as aggravating features elevating the offence above the mid-range.
  • Reasonable prospects of rehabilitation, genuine remorse, and youth are capable of supporting a significantly extended parole period even in cases involving the loss of life.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18 (manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44

Cases
- Muldrock v The Queen [2011] HCA 39; 85 ALJR 1154
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Cheung v The Queen [2001] HCA 67; 209 CLR 1
- R v Borkowski [2009] NSWCCA 102
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Mill v The Queen [1988] HCA 70; 166 CLR 59
- Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v MacDonell (NSWCCA, 8 December 1995, unreported)
- R v Isaacs (1997) 41 NSWLR 374
- R v Previtera (1997) 94 A Crim R 76
- R v Edwards (1996) 90 A Crim R 510
- R v Oinonen [1999] NSWCCA 310
- R v Johnson [2003] NSWCCA 129