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Supreme Court 9 July 2015

R v Samu Matagia Telemete

[2015] NSWSC 909

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER

Citation: R v Samu Matagia Telemete [2015] NSWSC 909
Court: Supreme Court of New South Wales
Date: 9 July 2015
Judge: Adams J

Background

In the early hours of 2 September 2012, the offender and a co-accused became involved in a street fight with three other men near Macquarie Fields. One of those men, the deceased, died from injuries sustained in the fight. The offender was charged with murder, causing grievous bodily harm, and actual bodily harm.

At trial in February 2015, the jury acquitted the offender of murder and of both assault charges, but convicted him of manslaughter by an unlawful and dangerous act. The co-accused had earlier pleaded guilty to manslaughter and related charges and had already been sentenced separately.

A contested factual question at sentencing was whether the most serious blows to the deceased's head and neck had been struck by the offender or by the co-accused. That question bore on whether the offender's liability arose from his own direct acts or from participation in a joint criminal enterprise.

  • Whether the most serious injuries to the deceased were inflicted by the offender directly, or by the co-accused as part of a joint criminal enterprise to which the offender was a party
  • What starting term of imprisonment was appropriate for the manslaughter
  • Whether a sentencing discount should be applied to reflect a guilty plea to manslaughter that the Crown had declined at the outset, instead proceeding to a murder trial (of which the offender was acquitted)
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify altering the standard ratio between the non-parole period and the balance of term

Decision

Adams J was unable to resolve beyond doubt which of the two men had struck the most damaging blows to the deceased's head and neck. The expert evidence on the mechanism of death was conflicting, and the eyewitness and victim accounts were affected by intoxication. Because the jury's verdict was consistent with either direct liability or joint enterprise liability, the court declined to sentence on the basis that the offender was the principal striker of those blows.

The court noted that findings made in the co-accused's separate sentencing were not binding and, given the different evidentiary record before the court on this occasion, could not simply be adopted. Adams J found that the objective and subjective features of both men's cases were not materially different in relation to the manslaughter, making the co-accused's sentence a relevant comparator.

Adams J fixed a starting point of 10 years. The prosecutor conceded that a 25 per cent discount was appropriate. The offender had indicated a willingness to plead guilty to manslaughter in the Local Court, but the Crown declined that offer and proceeded to trial on murder. Consistent with the principle in R v Thompson; R v Houlton, the discount recognised the utilitarian value of the foregone plea.

On special circumstances, Adams J found that this was the offender's first term of imprisonment, that the sentence was relatively lengthy, and that he would require substantial supervisory support on release to consolidate rehabilitation gains made in custody. Those factors justified a longer parole period than the standard formula would otherwise produce.

Orders Made

  • Overall sentence of 7 years and 6 months imprisonment for manslaughter
  • Non-parole period of 4 years and 6 months, commencing 17 January 2013 and expiring 16 July 2017
  • Balance of term of 3 years, commencing 17 July 2017 and expiring 16 July 2020
  • Earliest date of release on parole: 16 July 2017

Key Takeaways

  • Where a jury's manslaughter verdict is consistent with either direct liability or joint criminal enterprise, the sentencing court cannot attribute the most serious conduct to the offender unless satisfied of that fact on the evidence before it.
  • Findings of fact made in a co-offender's separate sentencing proceeding do not bind a subsequent sentencing court, particularly where the evidentiary records differ materially between the two proceedings.
  • Under the principle in R v Thompson; R v Houlton, a discount from the sentence is available where the offender offered to plead guilty to a lesser charge, the Crown declined and proceeded to trial on the more serious charge, and the offender was ultimately convicted of the lesser offence only.
  • Special circumstances justifying a departure from the standard non-parole ratio under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can arise from a combination of factors: a first custodial sentence, a relatively lengthy term, and the need for extended post-release supervision to embed rehabilitation.
  • The sentence imposed on a co-accused remains a relevant reference point even when the sentencing court cannot adopt the factual findings made in that earlier proceeding, provided the objective and subjective features of the two cases are not materially different.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (standard non-parole period ratio and special circumstances)

Cases
- R v Previtera (1997) 94 A Crim R 76
- R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 (sentencing discounts for guilty pleas)