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Court of Criminal Appeal 17 June 2015

Tuivaga v R

[2015] NSWCCA 145

Assault & violenceHomicide
CRIMINAL LAW SENTENCE APPEAL MANSLAUGHTER SENTENCE CUSTODY PRINCIPLE OF TOTALITY WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Tuivaga v R [2015] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 17 June 2015
Judge(s): Hoeben CJ at CL; R A Hulme J; Wilson J

Background

The applicant pleaded guilty to manslaughter the day before his murder trial was due to commence. The plea arose from his participation in a joint criminal enterprise to assault the deceased, who lived next door to the applicant's home. Four co-offenders were involved. During the assault, one of them discharged a shotgun, killing the deceased. The applicant was struck by pellets from the shot and was arrested the same evening.

The applicant did not know any co-offender was carrying a firearm. He did not foresee death or grievous bodily harm as a possible consequence, nor that the level of violence applied by the co-offender who fired the shot would occur. He accepted, however, that he had participated in the joint criminal enterprise to assault the deceased and that the deceased had been exposed to an appreciable risk of serious injury.

In November 2013, Price J sentenced the applicant to a non-parole period of 4 years and 6 months, commencing 15 June 2013, with an additional term of 2 years and 23 days. The applicant sought leave to appeal against that sentence on four grounds.

  • Whether the primary judge erred in applying the principle of totality when constructing the sentence
  • Whether the reduction in the non-parole period adequately reflected the finding of special circumstances
  • Whether the applicant had a legitimate sense of grievance under the parity principle when compared to co-offender Barnes, who received a slightly longer sentence
  • Whether the sentence was manifestly excessive

Decision

On totality, the Court found no error in the primary judge's approach. The sentencing judge had correctly identified the relationship between the head sentence, the non-parole period, and the pre-sentence custody already served. The applicant's submissions on this ground did not establish any identifiable legal error.

On special circumstances, the primary judge had expressly found special circumstances based on the applicant's harsh conditions of custody, including segregation for 23 hours a day, restricted access to programs, diagnosed severe depression with active suicidal ideation, and the serious illness of his partner. The Court found that the primary judge had, in fact, reflected those circumstances in the sentence, resulting in a non-parole period of slightly over 66 percent of the total term. No error was established.

On parity, the Court noted that the primary judge had expressly considered the relative positions of the applicant and Barnes when sentencing both. The applicant's own counsel had submitted at first instance that a similar sentence to Barnes, adjusted for the applicant's harsh custodial conditions, would be appropriate. The primary judge did exactly that, imposing a non-parole period 6 months shorter than Barnes'. The Court held there was no gross or marked disparity between the sentences and no legitimate sense of grievance.

On manifest excess, the Court found no error of principle or fact that would warrant intervention. The objective seriousness of the offence, the applicant's prior violence (including an offence committed while on bail), and the limited weight the primary judge was prepared to give rehabilitation prospects all supported the sentence. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A sentence will not be disturbed on totality grounds unless an identifiable legal error can be established; a mere difference in how another court might have balanced the components is insufficient.
  • Where special circumstances are found, the sentencing court must reflect them in the sentence structure, but there is no fixed formula dictating how large the resulting reduction must be.
  • The parity principle requires a "gross or marked disparity" before a legitimate sense of grievance arises; where a primary judge has expressly considered co-offenders' relative positions and offered a reasoned explanation for differential sentencing, appellate intervention is unlikely.
  • Harsh custodial conditions, including prolonged segregation and diagnosed mental illness, can found a finding of special circumstances and justify a lesser sentence than that imposed on a co-offender, even where culpability is assessed as equal.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that submissions made by defence counsel at the original sentencing are a relevant consideration when assessing a parity ground on appeal.

Legislation and Cases Referenced

Legislation:
- No specific legislation cited in the judgment

Cases:
- Corda v R [2014] NSWCCA 281
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- England v R; Phanith v R [2009] NSWCCA 274
- House v R [1936] HCA 40; 55 CLR 499
- Jimmy v R [2010] NSWCCA 60; 269 ALR 115
- Mammone v R [2013] NSWCCA 95
- Postiglione v R [1997] HCA 26; 189 CLR 295
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- R v Simpson [2001] NSWCCA 534; 53 NSWLR 704
- R v Tuivaga [2013] NSWSC 1626
- Stoeski v R [2014] NSWCCA 161
- Tan v R [2014] NSWCCA 96