Citation: R v Harley Page [2013] NSWSC 1711
Court: Supreme Court of New South Wales
Date: 30 October 2013
Judge: Latham J
Background
A jury convicted the offender of assault with intent to rob in company with wounding (under s 98 of the Crimes Act 1900) and manslaughter, following an attack on an elderly homeless man on a train travelling between Newcastle and Sydney in the early hours of 26 August 2011. The offender and his co-offender, who was intoxicated, approached the deceased and participated in an assault with the intention of robbing him. The co-offender struck the deceased in the head with a large reinforced pane of glass, causing fatal injuries, and had separately pleaded guilty to murder.
The offender maintained at trial that he had no intention to rob the deceased and that his co-offender acted independently. The jury rejected that account and found that the offender either made the demand himself or was jointly liable for the co-offender's conduct through his presence, assistance, and encouragement.
At the time of the offence, the offender was on bail for two other similar offences. He had a short but serious criminal history, including prior convictions for robbery in company and aggravated assault with intent to rob, and had been in custody since 29 August 2011.
Legal Issues
- Whether the criminality inherent in the s 98 offence and the manslaughter offence could be meaningfully separated for sentencing purposes, or whether the sentences should be concurrent
- What discount, if any, was warranted for the offender's early offer to plead guilty to manslaughter, which the Crown had rejected
- Whether special circumstances existed to justify departing from the standard statutory ratio between non-parole period and head sentence
- How to achieve an appropriate sentence that respected totality, given the offender was already serving two sentences of four years each for related prior offending
Decision
Latham J found that the criminality in the manslaughter offence and the s 98 offence could not be meaningfully separated. The Crown had charged the offender with murder on the basis that the s 98 offence was the foundational "felony murder" offence, and the Crown did not oppose the submission that both sentences should be entirely concurrent. The court accepted that approach and declined to assess the s 98 offence's objective seriousness as a separate exercise, treating it as subsumed within the manslaughter.
On the question of plea discount, the court accepted that the offender had offered to plead guilty to manslaughter before committal, an offer the Crown rejected both then and during trial. Because a plea at that early stage would have represented a considerable saving to the criminal justice system, and because of the complete correspondence between the two charges, the offender was entitled to a 25% discount on that utilitarian basis.
The court found special circumstances on three grounds: the offender's youth (then 24), the partial accumulation of the present sentences on top of those already being served, and the demonstrated need for extended supervision to support reintegration. However, the departure from the standard statutory ratio was kept moderate, to ensure the non-parole period continued to reflect the objective gravity of the offending.
Assessing totality, the court noted the offender had been in custody since August 2011 and had an earliest release date of February 2015 under existing sentences. The court sentenced the offender on the basis that he contemplated that the co-offender might cause some harm to the deceased, though short of grievous bodily harm, and that it had not been proved beyond reasonable doubt that the offender's own punching was extensive or sustained. Both sentences were made concurrent, commencing 29 February 2012.
Orders Made
- Assault with intent to rob in company with wounding (s 98): Non-parole period of 4 years, commencing 29 February 2012 and expiring 28 February 2016; balance of term of 2 years, expiring 28 February 2018
- Manslaughter: Non-parole period of 6 years, commencing 29 February 2012 and expiring 28 February 2018; balance of term expiring 28 February 2021
- The offender was eligible for release to parole on 29 February 2018
- Both sentences run concurrently from 29 February 2012
Key Takeaways
- Where two offences are so closely linked that one is subsumed within the other, the Supreme Court may decline to assess their criminality separately and instead synthesise the objective and subjective factors into concurrent sentences reflecting the totality of the offending.
- An early offer to plead guilty, even if rejected by the Crown, can still attract a significant utilitarian discount at sentencing. Here, the court awarded 25% because the offer, if accepted before committal, would have produced a substantial saving to the criminal justice system.
- Special circumstances justifying a departure from the standard non-parole period ratio are assessed cumulatively. Youth, partial accumulation of sentences, and a demonstrated need for supervised reintegration together supported a finding here, though the departure was kept moderate given the seriousness of the conduct.
- Intoxication neither excuses nor justifies violent offending, but may be relevant to the sentencing court's assessment of the risk of reoffending, particularly where it points to an underlying problem with alcohol consumption.
- Both general and specific deterrence remain relevant in sentencing for manslaughter arising from random, alcohol-fuelled violence in public. The court noted the community's awareness of, and denunciation towards, this type of offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 98 (assault with intent to rob in company with wounding; maximum penalty 25 years; standard non-parole period 7 years)
Cases
No cases were cited in the portions of the judgment provided.