Citation: R v D'Ambrosio [2014] NSWSC 1685
Court: Supreme Court of New South Wales
Date: 28 November 2014
Judge(s): Adamson J
Background
The offender was a small-time drug dealer living in Redfern on parole for prior supply offences. In May 2013, a group including the deceased (an 18-year-old) came to his unit demanding repayment of a $400 drug debt. The offender was beaten, had a knife held to his face, and was threatened with kidnapping and torture if he did not repay by 6 pm that evening.
Unable to raise the money, the offender travelled to Burwood and enlisted his drug supplier (referred to as "the Boss") and approximately eight men to return with him to Redfern. He knew the group brought a rubber mallet and a baseball bat. When the creditors arrived at the appointed time, the Boss's group stormed the courtyard and attacked the deceased and his associate. The deceased was struck on the head with both a rubber mallet and a baseball bat.
The deceased suffered severe blunt force head injuries, lost consciousness, and died on 5 June 2013. The offender pleaded guilty to manslaughter on the basis of participation in a joint criminal enterprise involving an unlawful and dangerous act that caused the death.
Legal Issues
- What is the appropriate sentence for manslaughter by unlawful and dangerous act where the offender orchestrated a retaliatory group attack?
- What weight should be given to the offender's subjective circumstances, including duress-like context, personal history, and rehabilitation prospects?
- Whether the offending being committed while on parole constitutes a significant aggravating factor.
- Whether the offence being committed "in company" should be treated as a separate aggravating factor given the nature of the joint enterprise plea.
- Whether special circumstances existed justifying a departure from the standard non-parole period ratio.
Decision
Adamson J sentenced the offender on the basis of agreed facts supplemented by unchallenged evidence given by the offender. Consistent with R v Olbrich, facts adverse to the offender had to be established beyond reasonable doubt, while mitigating facts needed only to be proved on the balance of probabilities.
The objective seriousness of the offence was assessed as above the mid-range. The offender had not merely responded impulsively to a threat: he had planned and arranged a group attack, equipped with weapons, to meet his creditors at the appointed time. Adamson J described this conduct as a deliberate resort to group violence that was fundamentally inconsistent with the rule of law, regardless of the genuine fear the offender had experienced earlier that day.
On the subjective side, the court accepted that the offender had been genuinely terrorised before arranging the attack. His background included a difficult post-bereavement history, long-standing drug addiction, and a late reconciliation with his son. However, the court found that his remorse was limited, noting that he had initially lied to police and had characterised the deceased's group as the aggressors without fully acknowledging his own role. Rehabilitation prospects were assessed as no better than fair.
The court declined to treat the "in company" element as a separate aggravating factor because it was already embedded in the joint enterprise basis of the guilty plea. However, the commission of the offence while on parole was treated as a significant aggravating factor. No special circumstances were established to justify a variation from the standard ratio between the non-parole period and the total sentence.
Orders Made
- The offender was sentenced to a term of imprisonment of 9 years and 10 months, commencing 9 October 2013.
- Non-parole period of 7 years and 5 months.
- Earliest eligible parole date: 9 March 2021.
Key Takeaways
- Planning and deliberation in arranging a retaliatory group attack, even when the offender personally feared violence, elevated the objective seriousness of manslaughter above the mid-range.
- A conviction for manslaughter by joint criminal enterprise does not require personal physical participation in the fatal act; presence and a directing role in the enterprise is sufficient.
- Committing an offence while on parole remains a significant aggravating factor, as confirmed in this sentencing.
- Where an offence is charged and pleaded on the basis of a joint criminal enterprise, the "in company" aggravating feature is not counted separately, as it is already inherent in the legal basis of liability.
- Limited remorse, assessed by reference to both the offender's conduct toward police and the nature of his evidence, was weighed against other mitigating factors including personal history and the coercive context that preceded the offending.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
Cases:
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 88 ALJR 372
- D'Ambrosio v R [2010] NSWCCA 120
- Hili v The Queen; Jones v The Queen [2010] HCA 45
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v KP & PR [2008] NSWSC 970
- R v Lavender [2005] HCA 37; 222 CLR 67
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v Taiseni, Motuapuaka, Leota, Tuifua [2007] NSWSC 1090
- RCW v R (No. 2) [2014] NSWCCA 190