Citation: R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79
Court: Supreme Court of New South Wales
Date: 8 February 2018
Judge: Adamson J
Background
Two offenders were tried jointly for the murder of a man who had allowed them to live in his housing commission unit in western Sydney. The deceased had recently met one offender (his half-brother) for the first time, and the other offender was the half-brother's girlfriend. Both offenders were heavily using methamphetamine during the relevant period, and the deceased had become frightened of them in the weeks before his death.
The jury acquitted both offenders of murder but convicted them of manslaughter by unlawful and dangerous act. The verdicts indicated that the jury was satisfied the two had agreed to hit, hog-tie, and gag the deceased, and participated in carrying out that plan, but was not satisfied either offender intended to kill him or cause grievous bodily harm, or foresaw death as a probable consequence.
The deceased died approximately two hours after sustaining blunt force head injuries inflicted with a cooking pot. He also suffered stab wounds and had been bound and gagged. The sentencing judgment concerned the appropriate penalties for both offenders, who had been in custody since their arrest on 31 August 2015.
Legal Issues
- What factual findings could properly be made at sentence, given the limitations imposed by the standard of proof applicable to adverse findings (beyond reasonable doubt) and favourable findings (balance of probabilities)?
- What were the objective circumstances of the offending, including the degree of each offender's participation in the joint criminal enterprise?
- What subjective circumstances applied to each offender, including criminal history, remorse, cooperation with authorities, and personal background?
- Whether a discount was available to the male offender for his early offer to plead guilty to manslaughter and his agreement to give evidence against the female offender.
- How the parity principle applied to produce sentences that were consistent as between the two co-offenders, while reflecting their differing culpability and circumstances.
Decision
Adamson J accepted that many facts relevant to the precise roles each offender played could not be determined to the requisite standard. Her Honour applied the established principle from The Queen v Olbrich that adverse findings at sentence require proof beyond reasonable doubt, while matters favourable to an offender need only be established on the balance of probabilities.
On objective seriousness, the court found the offending was serious. The act of hog-tying and gagging the deceased was the direct cause of death, and both offenders were party to that arrangement. The male offender's prior acts of violence against the deceased (including assaulting him during a visit to Mackay and threatening others) were treated as aggravating his personal culpability. His prior criminal history also disentitled him to leniency available to a first offender.
The male offender received a total discount of 35 per cent on his sentence, reflecting his early offer to plead guilty to manslaughter and his agreement to give evidence against the female offender. The court applied the principles from GAS v The Queen in assessing the value of that cooperation. The female offender did not attract the same discount, but the court made a finding of special circumstances in her favour, which justified a longer than usual ratio of parole to head sentence, allowing for a more structured period of supervision on release.
On parity, the court held that the male offender's starting point was marginally higher than the female offender's, due to his initial acts of violence and his criminal history. However, once the 35 per cent discount for his plea and cooperation was applied, his ultimate sentence was lower than hers. The court was satisfied the differences in sentence were explicable and did not give rise to a justifiable sense of grievance.
Orders Made
Rhiannon Bloodsworth (manslaughter):
- Sentence of imprisonment commencing 31 August 2015
- Non-parole period: 7 years and 6 months (first eligible for parole 27 February 2023)
- Total term: 11 years (expiring 30 August 2026)
Trent Errington (manslaughter):
- Sentence of imprisonment commencing 31 August 2015
- Non-parole period: 6 years and 4 months (first eligible for parole 30 December 2021)
- Total term: 8 years and 5 months (expiring 30 January 2024)
Key Takeaways
- A sentencing court cannot make adverse factual findings against an offender unless those facts are proved beyond reasonable doubt; facts to be taken in the offender's favour need only be established on the balance of probabilities, following The Queen v Olbrich.
- Where co-offenders are sentenced for manslaughter arising from a joint criminal enterprise, the parity principle requires that differences in sentence be explicable by reference to genuine differences in culpability or subjective circumstances, not arbitrary variation.
- A substantial discount (here, 35 per cent) may be available to an offender who makes an early offer to plead guilty to a lesser charge and agrees to give evidence against a co-offender, provided the utilitarian value and the circumstances of the cooperation are properly assessed in accordance with GAS v The Queen.
- The court's approach to manslaughter sentencing reflects the offence's wide factual range: as confirmed by reference to Hili v The Queen, comparisons with sentences imposed in other manslaughter cases carry limited weight given how differently the offence can be committed.
- A finding of special circumstances, which extends the parole period relative to the total head sentence, may be warranted where an offender's personal history and rehabilitation prospects justify a longer supervised transition into the community.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 22, 23
Cases:
- GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McAuliffe v The Queen (1995) 183 CLR 108; [1995] HCA 37
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Oinonen [1999] NSWCCA 310
- The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Weininger v The Queen (2003) 212 CLR 629; [2003] HCA 14