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Supreme Court 17 February 2012

R v SCOTT

[2012] NSWSC 70

Assault & violenceHomicideDrugs
CRIMINAL LAW SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT

Citation: R v Scott [2012] NSWSC 70
Court: Supreme Court of New South Wales
Date: 17 February 2012
Judge(s): Buddin J

Background

The offender was tried for the murder of a 23-year-old woman at Manly on 12 March 2004. After a three-month trial involving more than 70 witnesses and nearly 60 exhibits, the jury acquitted him of murder but convicted him of the alternative charge of manslaughter on the basis of an unlawful and dangerous act. A co-accused was acquitted of both murder and manslaughter, and a further charge against him was ultimately no-billed.

The deceased had suffered serious physical and mental health difficulties from her early teenage years, including heroin addiction and significant physical deterioration. In early March 2004 she was introduced to the offender and spent several days with him. The fatal events occurred in the early hours of 12 March 2004 at a unit in Manly during a prolonged episode of drug use involving methamphetamine ("ice") and marijuana.

The principal Crown witness gave evidence that the offender pursued the deceased when she ran from the premises and that screams were heard shortly after. That witness's evidence was heavily scrutinised at sentencing given her long history of drug addiction, her own involvement in events that night (including stealing from and assaulting the deceased), and significant inconsistencies across multiple police interviews and her trial testimony.

  • What sentence was appropriate for the manslaughter conviction, having regard to the objective seriousness of the offence and all relevant subjective factors?
  • What weight should be given to statistical sentencing data for manslaughter offences?
  • Whether "special circumstances" existed to justify a departure from the standard ratio between the non-parole period and the total sentence, thereby extending the period spent on parole in the community.

Decision

Buddin J sentenced the offender after weighing the objective seriousness of the offending against the applicable subjective factors. His Honour acknowledged that manslaughter encompasses an extremely wide range of conduct and moral culpability, from a joke gone wrong to facts just short of murder, and that this variation applies within categories of manslaughter as much as across them.

On the statistical material, his Honour noted that statistics held by the Judicial Commission must be approached with considerable circumspection. Referring to observations by James J in Scott v R [2011] NSWCCA 221 (an earlier appeal in the same matter), his Honour noted that head sentences for manslaughter for the relevant period ranged from three to twenty years with a median of seven years six months, and non-parole periods ranged from twelve months to sixteen years with a median of three years six months. His Honour treated this material as of some, though limited, utility only.

His Honour found that special circumstances existed, accepting that an extended parole period would facilitate the offender's rehabilitation following what would be his first time in custody. Buddin J emphasised that a human life had been needlessly taken through the offender's unlawful and reprehensible conduct, and that this remained at the forefront of the sentencing task.

Orders Made

  • The offender was sentenced to a total term of 7 years and 6 months imprisonment for the manslaughter of the deceased.
  • A non-parole period of 4 years and 6 months was fixed, commencing 20 January 2010 and expiring 19 July 2014.
  • The balance of the sentence expires 19 July 2017.
  • The offender is eligible for release on parole on 19 July 2014.

Key Takeaways

  • Manslaughter by unlawful and dangerous act carries a maximum of 25 years imprisonment in New South Wales, with no standard non-parole period applicable.
  • Statistical sentencing data from the Judicial Commission can be considered in manslaughter sentencing but must be treated with considerable circumspection and cannot substitute for the exercise of individual sentencing discretion.
  • A finding of special circumstances, justifying a longer-than-standard parole period, may be supported where the offender will be entering custody for the first time and an extended period of supervised reintegration is likely to assist rehabilitation.
  • The Supreme Court confirmed that the category of manslaughter by unlawful and dangerous act covers a very wide spectrum of moral culpability, requiring careful individual assessment of where the particular offending falls within that range.
  • Significant credibility and reliability problems with a Crown witness, including drug-affected perception at the time of events and during testimony, and inconsistencies across multiple accounts, are relevant findings in both the trial and the sentencing context, here informing the overall factual background against which sentence was imposed.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Scott v R [2011] NSWCCA 221
- MAH v R [2006] NSWCCA 226
- R v Blanco (1999) 106 A Crim R 303
- R v FD & JD (2006) 160 A Crim R 392
- R v Forbes [2005] NSWCCA 377
- R v Previtera (1997) 94 A Crim R 76
- R v Weinman (1987) 49 SASR 248
- R v Hoerler (2004) 147 A Crim R 520