Citation: R v Frazer Kevin Tanks [2016] NSWSC 519
Court: Supreme Court of New South Wales
Date: 28 April 2016
Judge: Mathews AJ
Background
The offender was indicted on a charge of murder following the death of the victim, who died on 21 February 2014 after sustaining serious injuries at a Waratah apartment on the night of 10 to 11 February 2014. The offender had spent the evening drinking with two acquaintances before accompanying one of them to the apartment, where the victim was living with his former partner and their young son. After approximately an hour of drinking, the offender without apparent provocation crossed the room and began punching the victim, who fell to the floor, and then stomped on the victim's head multiple times. When others intervened, the offender also punched and kicked a third party, causing him abrasions and contusions.
The offender pleaded not guilty to murder but guilty to the lesser charge of manslaughter. A jury trial proceeded on the murder count, and on 19 February 2016 the jury returned a verdict of not guilty of murder. The conviction for manslaughter was then entered. The offender also pleaded guilty to assault occasioning actual bodily harm against the third party who had tried to intervene, dealt with as a related offence under s 166(1)(b) of the Criminal Procedure Act 1986.
The victim never regained consciousness after the assault. The forensic pathologist found the direct cause of death was hypoxic brain injury resulting from a cardiac arrest immediately following the head injuries. The victim also had serious underlying conditions, including alcohol-induced cardiomyopathy and atrial fibrillation, and an extremely high blood alcohol reading of 0.312 at the time of hospital admission. These pre-existing vulnerabilities materially increased his risk of cardiac arrest.
Legal Issues
- What is the appropriate sentence for the manslaughter, taking into account the victim's particular vulnerability due to pre-existing health conditions?
- What sentence is appropriate for the related offence of assault occasioning actual bodily harm?
- Whether the offender's prospects of rehabilitation constitute special circumstances justifying a departure from the standard non-parole period ratio.
- How should the two sentences be structured and whether they should be accumulated?
Decision
Mathews AJ accepted the medical evidence that the victim's pre-existing conditions, combined with his very high blood alcohol level, made him especially vulnerable to the kind of physical assault inflicted upon him. The pathologist confirmed that blunt force injuries to the head and chest, including fractured ribs and a punctured lung, contributed to a cardiac arrest and the resulting fatal brain injury. The offender's conduct was unprovoked, sustained, and directed at a man who was simply seated in a domestic setting.
The sentencing judge considered the standard purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999, including punishment, deterrence, community protection, rehabilitation, accountability, denunciation, and recognition of harm to the victim and community. Victim impact statements from the deceased's two sisters, former partner, and children were received and described as extremely moving.
Mathews AJ found that the offender had real prospects of rehabilitation and was likely to benefit from a lengthy supervised release period. This finding supported a conclusion that special circumstances existed, warranting a variation from the standard statutory ratio between the head sentence and the non-parole period, resulting in a longer balance of term than would otherwise apply.
Orders Made
- For assault occasioning actual bodily harm to Christopher Curtin: fixed term of six months' imprisonment commencing 11 February 2014.
- For the manslaughter of Stephen Donoghue: non-parole period of four years commencing 11 May 2014 and expiring 10 May 2018, with a balance of term of three years commencing 11 May 2018 and expiring 10 May 2021.
- Total term of imprisonment: seven years and three months.
- Earliest eligible parole date: 10 May 2018.
- The manslaughter sentence was partially accumulated on the assault sentence.
Key Takeaways
- A victim's pre-existing health vulnerabilities are a relevant sentencing consideration in manslaughter cases, as they bear on the gravity of harm flowing from the offender's conduct and the victim's particular susceptibility to serious injury.
- Genuine prospects of rehabilitation may constitute special circumstances under the Crimes (Sentencing Procedure) Act 1999, justifying a non-parole period that departs from the standard statutory ratio in favour of a longer supervised release period.
- Where a manslaughter charge and a related assault charge arise from the same series of events, s 166(1)(b) of the Criminal Procedure Act 1986 permits the related offence to be dealt with by certificate and sentenced on the same occasion.
- Partial accumulation of sentences, rather than full concurrency or full accumulation, was applied here to reflect both the distinct nature of the two offences and the principle of totality.
- An unprovoked, sustained assault in a domestic setting, involving stomping on the victim's head and directed at a particularly vulnerable person, placed this manslaughter at a serious level, notwithstanding the jury's acquittal of murder.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166(1)(b)
Cases
- NLR v R [2011] NSWCCA 246