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Supreme Court 11 April 2012

R v HT

[2012] NSWSC 656

Assault & violenceHomicideTheft & property
CRIMINAL LAW SENTENCE OFFENDER UNDERTAKING TO GIVE EVIDENCE AGAINST CO OFFENDER AND ACCESSORY AFTER THE FACT

Citation: R v HT [2012] NSWSC 656
Court: Supreme Court of New South Wales
Date: 11 April 2012
Judge(s): Hidden J

Background

The offender was 17 years old in August 1995 when he and a co-offender, who had since fled the country, committed a robbery on a 16-year-old schoolboy walking home from sports training. The offender had supplied the co-offender with a knife, which the co-offender used to fatally stab the victim after the victim resisted the robbery. The offender then kicked the victim in the head before both fled the scene. The victim's wallet and its small amount of cash were the proceeds of the robbery.

The offender was not arrested until August 2009, after admissions he had made to friends and a former partner over the intervening years led investigators to him. He was tried for murder and robbery in company with wounding. At trial, he gave evidence denying participation in any plan to rob and claiming he only witnessed the aftermath from a public phone box.

The jury rejected that account and convicted the offender of manslaughter and robbery in company (the alternative charge). The offender stood for sentence on those two offences.

  • What sentence was appropriate for manslaughter where the offender was complicit in a fatal stabbing by a co-offender, having supplied the knife and participated in the assault?
  • What discount, if any, was warranted for the offender's pre-trial offer to plead guilty to manslaughter?
  • What weight should be given to the offender's undertaking to give evidence against the co-offender and against an alleged accessory after the fact?
  • How should the non-parole period be calibrated given findings of special circumstances and the need to reflect the seriousness of the offending?

Decision

Hidden J identified the objective seriousness of the offending as considerable. The offender had supplied the knife, participated in the robbery, and kicked the victim in the head after the stabbing. The jury's verdict established that the offender contemplated the knife might be used to scare the victim, but not that it would be used to stab him. Even so, His Honour found the facts significantly more serious than comparable cases where the objective circumstances were less grave.

On subjective factors, the court accepted that the offender had no prior criminal history at the time of the offences, had a difficult upbringing in which he bore significant family responsibility, had since worked to address drug and alcohol issues, and had the support of family. A psychiatrist diagnosed him with major depressive disorder. His Honour accepted that expressions of remorse to a prison chaplain, a psychiatrist, family and friends were genuine, though the sanitised account he gave at trial weighed against him to some degree in assessing that remorse.

Hidden J accepted that a 30% sentencing discount was appropriate, combining recognition of the pre-trial offer to plead guilty to manslaughter (which would have saved considerable court time and resources) and the offender's undertaking to give evidence against the co-offender and the alleged accessory. His Honour acknowledged the offender's proposed evidence would not depart from his trial testimony, meaning his credibility would remain open to challenge, but concluded the evidence would nonetheless be of significant assistance to prosecutions that lacked independent eyewitness evidence.

Starting from a notional sentence of nine years for the manslaughter, the 30% discount produced a head sentence of six and a half years. The court found special circumstances justifying a modest reduction in the non-parole period below the statutory proportion, but declined a larger reduction on the basis that it would inadequately reflect the offender's criminality. A concurrent fixed term of three and a half years was imposed for the robbery in company.

Orders Made

  • Manslaughter: imprisonment with a non-parole period of 4 years and 3 months (18 August 2009 to 17 November 2013) and a balance of term of 2 years and 3 months (18 November 2013 to 17 February 2016).
  • Robbery in company: fixed term of 3 years and 6 months (18 August 2009 to 17 February 2013), to be served concurrently.
  • Eligible for release on parole on 17 November 2013.

Key Takeaways

  • A pre-trial offer to plead guilty to manslaughter, combined with an undertaking to give evidence against co-offenders, can together attract a significant sentencing discount even where the offender's proposed evidence would not differ from testimony already given at trial.
  • Supplying the weapon used in a fatal stabbing and actively participating in the assault are objective factors that place a manslaughter of this kind toward the more serious end of the range, even where the jury was not satisfied the offender foresaw that the weapon would actually be used.
  • Hidden J treated the offender's post-trial criminal record (since 2000) as of little or no significance in sentencing for offences committed in 1995, while acknowledging that post-offence criminal history is in principle relevant.
  • Where special circumstances are found to exist, the court retains discretion to limit any reduction in the non-parole period to a modest adjustment, preserving the adequacy of that period as a reflection of objective and subjective criminality.
  • Three comparable manslaughter cases involving offenders complicit in fatal stabbings by co-offenders were noted as consistent with a discernible sentencing pattern for this type of offending, typically involving young offenders.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW)

Cases:
- Scott v R [2011] NSWCCA 221
- R v VDN [2004] NSWSC 426
- R v Pham (unreported, 15 May 1998)
- R v Siose [2007] NSWSC 1202