AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 6 December 2024

R v Oliver

[2024] NSWSC 1571

Assault & violenceHomicideTheft & property
SENTENCING MANSLAUGHTER GUILTY PLEA S PERPETRATOR OFFENDER PRESENT WHEN CO PERPETRATOR RENDERED THE FATAL ASSAULT

Citation: R v Oliver [2024] NSWSC 1571
Court: Supreme Court of New South Wales
Date: 6 December 2024
Judge: Ierace J

Background

The offender, a 25-year-old Indigenous man, pleaded guilty to the manslaughter of a 54-year-old man and to intentionally damaging property by means of fire in company. The offending occurred in the early hours of 26 July 2021 in Stockton, New South Wales, when the offender was 21 years old. The deceased had allowed the offender to stay at his apartment on one or two occasions during a period when the offender was effectively homeless and couch-surfing in the area.

On the night of the offending, the offender and a 17-year-old co-perpetrator formed an agreement to assault the deceased, with the offender present to assist if necessary. Before they arrived at the deceased's apartment, the offender became aware that the co-perpetrator was carrying a knife, and although he recognised this created an appreciable risk of serious injury, he continued. The co-perpetrator stabbed the deceased three times, killing him. The offender and co-perpetrator then set fire to the deceased's apartment and burned clothing near the Hunter River in an attempt to destroy evidence.

The Crown accepted the guilty plea to manslaughter on the basis that the offender had not foreseen the possibility that the co-perpetrator would act with intent to kill or inflict grievous bodily harm. This placed the offending outside the doctrine of extended joint criminal enterprise, which would otherwise have supported a murder conviction.

  • Whether the offender's participation in the joint criminal enterprise, combined with his awareness that the co-perpetrator was armed with a knife, extended his liability to murder under the doctrine of extended joint criminal enterprise
  • The appropriate weight to give to the offender's deprived Indigenous background under the principles in Bugmy v The Queen (2013) 249 CLR 571 and DPP (Cth) v De La Rosa [2010] NSWCCA 194, particularly whether a significant nexus existed between that background and the offending
  • The appropriate indicative and aggregate sentences for manslaughter and damaging property by fire in company, including the discount for guilty pleas
  • Whether special circumstances existed to justify a non-parole period that departed from the statutory default ratio

Decision

Ierace J sentenced the offender on the basis of the agreed facts, which the Crown accepted it could not disprove beyond reasonable doubt. The central finding on the manslaughter count was that the offender had not contemplated that the co-perpetrator would use force with intent to kill or cause grievous bodily harm. Awareness that a knife was present, and that serious injury was an appreciable risk, was insufficient to bring the offender within the extended joint criminal enterprise doctrine that would render him guilty of murder.

On the question of the offender's Indigenous background and deprived upbringing, the court applied the Bugmy principle that the effects of profound childhood deprivation do not diminish with the passage of time. However, Ierace J did not find a significant nexus between the offender's background and the specific offending in this case. His Honour nonetheless took the background into account as part of the instinctive synthesis of sentencing, which is the process by which a court considers all relevant factors together rather than mechanically adjusting from a starting point.

The indicative sentence for manslaughter was 9 years, and for damaging property by fire in company was 5 years and 4 months. Both figures reflected a 10 per cent discount for the guilty pleas. The court found special circumstances, warranting a longer than usual parole period, on two grounds: the entrenched nature of the offender's criminogenic factors required extended supervision upon re-entry into the community, and his diagnosis of chronic PTSD made the prison experience more onerous for him.

An aggregate sentence of 11 years was imposed, with a non-parole period of 7 years, backdated to the date the offender entered custody on 5 October 2022.

Orders Made

  • The offender was sentenced to an aggregate term of imprisonment of 11 years, commencing 5 October 2022 and expiring 4 October 2033, with a non-parole period of 7 years expiring 4 October 2029.
  • The court recommended that the offender's legal representatives provide Justice Heath with a copy of the report of Dr Emma Collins dated 16 September 2024.
  • Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the court directed the offender's legal representatives to advise him of the existence of that Act and its application to the offence.

Key Takeaways

  • Awareness that a co-perpetrator is armed with a knife, and recognition that serious injury is an appreciable risk, does not automatically extend liability to murder under the doctrine of extended joint criminal enterprise. The critical question remains whether the offender foresaw the possibility that the co-perpetrator would act with intent to kill or cause grievous bodily harm.
  • Under the Bugmy principle, the effects of a deprived Indigenous background do not diminish over time and must be considered in sentencing. However, the Supreme Court here declined to find a significant nexus between that background and the specific offending, taking it into account only as part of the broader instinctive synthesis rather than as a distinct mitigating factor.
  • A guilty plea entered at arraignment attracted only a 10 per cent discount, reflecting the relatively late stage at which the plea was entered.
  • Special circumstances justifying a longer parole period can rest on the combination of entrenched criminogenic factors requiring extended post-release supervision and a diagnosis that makes custody more onerous than usual, such as chronic PTSD.
  • The court directed compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), which requires that offenders sentenced for certain serious offences be advised of the Act's potential application to them following release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(a), 18(1)(b), 195(1A)(b)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), (j), (n), 25D(2)(b)(i)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Du Plessis v R [2024] NSWCCA 164
- Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
- R v Sumpton (No 4) [2015] NSWSC 684
- R v Wilkinson (No 5) [2009] NSWSC 432
- Sumpton v R [2016] NSWCCA 162