Citation: R v J Shedden [2012] NSWSC 759
Court: Supreme Court of New South Wales
Date: 6 July 2012
Judge(s): Fullerton J
Background
The offender was charged with the murder of a 20-year-old man at Raymond Terrace on 29 June 2010. The killing arose from a retaliatory attack organised after the offender received a phone call from a younger friend who had been assaulted by the deceased and his companions. The offender used his home as a base, gathered a group of armed men, and helped plan and launch a surprise ambush on the deceased's vehicle in a suburban street.
The offender did not discharge the firearm. His older brother, Chad Shedden, produced a shortened shotgun and ultimately fired the fatal shot. The offender was charged on the basis that he participated in a joint criminal enterprise to assault the deceased and his companions using weapons including knives and metal bars, knowing that at least one person in the group had a gun.
At trial, the offender pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment, on the basis that the Crown could not prove beyond reasonable doubt that the offender contemplated the possibility that his brother might kill or cause grievous bodily harm to the deceased.
Legal Issues
- What were the objective facts of the offending, including the offender's precise role in the joint criminal enterprise?
- What weight should be given to the guilty plea, and at what point it was entered?
- What discount applied for the offender's past assistance to authorities, and how should that be quantified alongside conditions of remand?
- What sentence was appropriate having regard to the objective seriousness of the offending, parity with co-offenders, and relevant subjective factors?
Decision
Fullerton J found that the facts, as ultimately agreed by the parties, disclosed a high degree of objective criminality. The offender had taken a leading role in organising the retaliatory assault: he mobilised the group, arranged for his brother and another friend to attend, permitted his home to be used as the operational base, and personally armed himself with a metal rod that he threw at the deceased's vehicle. He was aware before the attack that someone in the group possessed a gun, though there was no evidence he knew it was loaded or that he was present when his brother displayed the weapon.
The court noted significant deficiencies in the initial materials tendered by the parties under section 35A of the Crimes (Sentencing Procedure) Act 1999. The original "Summary of Crown Evidence" obscured the offender's actual role and failed to identify his criminality with sufficient clarity for sentencing purposes. Fullerton J directed that an addendum be produced before proceeding, observing that it is not the sentencing judge's function to search through a body of material to reconstruct what an offender's role actually was.
On the plea discount, the court found that only a 10 per cent utilitarian discount applied. The Crown had offered the manslaughter plea at committal, and the offender did not accept it until the day of trial, meaning no early plea discount was available. An additional reduction was afforded for the offender's past assistance to authorities, with the extent of that reduction expressly stated to comply with section 23 of the Crimes (Sentencing Procedure) Act, as required by R v Ehrlich. The court also took into account the conditions of the offender's remand since arrest, consistent with Kauwenberghs v R.
Fullerton J found no mitigating factors of substance. The offence was planned, carried out in company, involved weapons, and demonstrated a disregard for public safety. The death, though not contemplated by the offender, arose from an armed attack in a suburban street conducted on two separate occasions in the same evening. The court imposed a total sentence of 9 years imprisonment after applying the combined discounts.
Orders Made
- The offender sentenced to 9 years imprisonment for manslaughter.
- Non-parole period of 6 years and 9 months, commencing 7 July 2010 and expiring 6 April 2017.
- Balance of term of 2 years and 3 months, expiring 6 July 2019.
Key Takeaways
- A guilty plea entered only on the day of trial, where the Crown had offered the same plea at the time of committal proceedings, does not attract the full sentencing discount available for an early plea. Only a 10 per cent utilitarian discount applied in these circumstances.
- Under section 23 of the Crimes (Sentencing Procedure) Act 1999, the discount afforded for an offender's assistance to authorities must be expressly stated in the sentencing remarks, as confirmed in R v Ehrlich.
- Where sentence facts are to be established under section 35A of the Crimes (Sentencing Procedure) Act 1999 following charge negotiations, the agreed material must clearly identify the offender's objective criminality by reference to relevant and provable facts. Fullerton J stated plainly that it is not the sentencing judge's role to reconstruct an offender's role from inadequate or ambiguous materials.
- Participation in a joint criminal enterprise to assault victims with dangerous weapons, where the offender knew a firearm was present in the group, supported a finding of manslaughter liability even where the offender did not fire the weapon and did not contemplate that death would result.
- The statutory maximum of 25 years for manslaughter reflects the gravity of offences resulting in loss of life, and sentences in this category must address denunciation, punishment, and general deterrence, particularly where the offending was planned and involved multiple armed participants.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23, 35A
Cases
- R v Taufahema [2007] HCA 11; 228 CLR 232
- Wilson v R (1992) 174 CLR 313
- R v Ehrlich [2012] NSWCCA 38
- Kauwenberghs v R (Cth) [2008] NSWCCA 98
- Ibrahim v R [2009] NSWCCA 15
- R v Forbes [2011] NSWSC 1547