Citation: R v Aslett [2012] NSWSC 711
Court: Supreme Court of New South Wales
Date: 29 June 2012
Judge: Harrison J
Background
The offender was charged with the murder of a man at Cabramatta West on 2 August 2009. The Crown ultimately accepted a plea of guilty to manslaughter, entered in the Parramatta Local Court on 6 September 2011, in full discharge of the murder indictment. Two co-accused, the offender's brother and cousin, faced separate proceedings arising from the same incident.
The events began the previous evening, when a car belonging to the offender's brother was set alight on a nearby vacant block. The offender and his cousin retrieved weapons, the offender arming himself with a large machete, and confronted the deceased, who was unarmed and on his bicycle. A physical altercation followed in the street, during which the offender and his cousin swung their weapons at the deceased. The offender's brother then fired a number of gunshots toward the deceased as he turned away, and one shot struck the deceased in the back, killing him.
The basis of the manslaughter plea was that the offender had entered a joint criminal enterprise with his co-accused to threaten or use unlawful violence against the deceased while each was armed. The offender had contemplated the possibility that one of his co-accused might commit an unlawful and dangerous act carrying an appreciable risk of serious injury, yet continued his participation. The fatal shot was fired by his brother.
Legal Issues
- What is the appropriate sentence for manslaughter committed in the context of a joint criminal enterprise, where the offender did not personally fire the fatal shot but contemplated that a co-accused might commit a dangerous act?
- How should the objective gravity of the offence be assessed within the wide range of culpability that characterises manslaughter?
- What weight should be given to the offender's plea of guilty, his youth, background, and prospects for rehabilitation?
- How should parity with the sentence imposed on the co-accused, James Aslett, be achieved?
Decision
Harrison J placed the offence somewhat below the middle of the range of seriousness for manslaughter. The court recognised that manslaughter encompasses an exceptionally wide variety of circumstances and degrees of culpability, making it impossible to apply a fixed tariff. While the death resulted directly from the co-accused's gunshot, the offender had armed himself with a machete and actively participated in the joint criminal enterprise against an unarmed man, having contemplated the risk that serious harm might be inflicted by one of the others.
On the subjective side, the offender was 19 at the time of the offence and 22 at sentencing, with no prior criminal history. He had a difficult upbringing, having lived in various locations with limited contact with his father. A psychologist's report and a report from the Miruma Indigenous Drug and Alcohol program indicated genuine prospects for rehabilitation. The offender had undertaken educational and vocational programmes in custody.
The court applied a 25 percent discount to the sentence for the guilty plea, noting the plea was entered in the Local Court at a relatively early stage. Harrison J acknowledged that a higher discount than the 15 percent applied to James Aslett was warranted, because the offender's plea was entered earlier. The court also found special circumstances justifying a longer than usual balance of term, to provide adequate supervision on parole given the offender's youth and the need for structured support upon release.
Regarding parity, Harrison J noted that the notional starting points for the offender and James Aslett were almost identical, and the difference between their respective head sentences and non-parole periods reflected differing guilty plea discounts rather than any difference in objective culpability.
Orders Made
- The offender was sentenced to imprisonment for 6 years and 3 months.
- Non-parole period of 4 years, taken to have commenced on 2 August 2009, expiring on 1 August 2013.
- Balance of term of 2 years and 3 months, commencing 2 August 2013 and expiring 1 November 2015.
- First eligible date for release on parole: 2 August 2013.
Key Takeaways
- Manslaughter arising from a joint criminal enterprise, where the offender armed himself and participated in the attack but did not personally deliver the fatal blow, was assessed as falling somewhat below the middle range of seriousness for the offence.
- A wide range of culpability exists within the offence of manslaughter, and sentencing courts must assess each case on its particular objective and subjective circumstances rather than by reference to a fixed tariff.
- Where co-accused are sentenced separately, the parity principle requires the court to align sentences at the notional starting point level where culpability is equivalent, with differences in final sentences reflecting legitimate factors such as the timing and circumstances of each plea.
- Youth, the absence of prior convictions, genuine prospects for rehabilitation, and participation in programmes while in custody are relevant subjective matters in mitigation, and can ground a finding of special circumstances justifying a longer balance of term.
- Victim impact statements are received and acknowledged, but under the principles in R v Previtera and R v Bollen, the court's sentencing discretion is constrained in the weight attributable to such statements.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter: 25 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
Cases
- R v Van Xuan Nguyen [2005] NSWSC 600
- R v MacDonald (Court of Criminal Appeal, 12 December 1995)
- R v Blacklidge (Court of Criminal Appeal, 12 December 1995)
- R v Hill (1981) 3 A Crim R 397
- R v Walsh (2004) 142 A Crim R 140
- R v Mohamad Ali [2005] NSWSC 334
- R v Previtera (1997) 94 A Crim R 76
- R v Bollen (1998) 99 A Crim R 510