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Court of Criminal Appeal 1 December 1999

R v TJP [1999] NSWCCA 408 revised - 09

[1999] NSWCCA 408

Homicide
DECISION : LEAVE TO APPEAL GRANTED APPEAL DISMISSED SENTENCE CONFIRMED

Citation: R v TJP [1999] NSWCCA 408 revised - 09/12/99
Court: NSW Court of Criminal Appeal
Date: 1 December 1999
Judge(s): Wood CJ at CL; Sully J; Simpson J

Background

The appellant, a young Aboriginal woman aged sixteen at the time of the offence, pleaded guilty to manslaughter following the fatal beating of a 67-year-old man near an ATM in Taree in February 1998. She had been drinking with two other people before the three set out to rob someone. One co-offender, Wilson, delivered the primary attack, punching the deceased repeatedly around the head. The trial judge found the appellant had joined in by kicking the victim while he was on the ground.

At first instance, Newman J sentenced the appellant to six years' penal servitude, comprising a minimum term of two years and eleven months and an additional term of three years, with one month's pre-sentence custody taken into account. The co-offender Wilson received a minimum term of four years and an additional term of four years for manslaughter, alongside a fixed term for a separate offence. Wilson's culpability had been reduced from murder to manslaughter on the basis of diminished responsibility arising from schizophrenia.

The appellant sought leave to appeal against her sentence on four grounds, arguing the sentencing judge failed to give sufficient weight to her subjective circumstances, failed to credit her assistance to police, imposed a sentence out of parity with Wilson's, and imposed a sentence that was manifestly excessive given her limited role.

  • Whether the sentencing judge gave sufficient weight to the appellant's subjective features, including her age, Aboriginal background, limited intellectual capacity, alcohol use, guilty plea, contrition, and rehabilitation prospects
  • Whether the sentencing judge was required under s 442B of the Crimes Act to give credit for the assistance the appellant provided to police in identifying a co-offender, and whether any failure to do so warranted appellate intervention
  • Whether the disparity between the appellant's sentence and that imposed on Wilson gave rise to a legitimate sense of grievance
  • Whether the sentence was manifestly excessive having regard to the appellant's lesser role and the circumstances of the offence

Decision

Subjective circumstances: The Court accepted that Newman J had expressly noted the appellant's age, background, alcohol and substance abuse history, and rehabilitation prospects, and had already departed from the standard ratio between minimum and additional terms to reflect those matters. Although the sentencing judge made no express mention of the weight given to the guilty plea, the appellant's borderline intellectual capacity, or her impulsivity, the Court of Criminal Appeal declined to infer error from that omission alone. After reviewing additional material showing the appellant's continued progress in custody, the Court was not persuaded a different outcome was warranted.

Assistance to police: The sentencing judge made no reference to the assistance the appellant provided in identifying the third co-offender, DK, leaving it unclear whether any credit was given under s 442B of the Crimes Act. The Court noted the assistance was of doubtful value, however, given the appellant had provided contradictory accounts and subsequently refused to honour her undertaking to give evidence against DK. As a result, DK was charged but later discharged. In those circumstances, the absence of any reference to the assistance did not produce a different outcome on appeal.

Parity: The Court assessed the parity argument by reference to the established tests from Lowe and Postiglione. Wilson's significantly longer sentence reflected his primary role as the person who delivered the fatal blows, the fact that his plea was entered on the basis of murder reduced to manslaughter by diminished responsibility, his greater criminal history including prior offences involving assault and robbery, and his older age. The appellant, by contrast, had a minor prior record, pleaded guilty on the lower basis of unlawful and dangerous act manslaughter, and was younger. The Court found no proper basis for a parity grievance.

Manifest excess: The Court noted that accepted statistics placed the sentence in the mid-range for offenders sentenced to imprisonment for manslaughter, making it difficult to establish the sentence fell outside the proper discretionary range. The gravity of killing a person during a robbery, combined with the appellant's willing participation in kicking an elderly and defenceless victim who was already on the ground, and her own acknowledgment in record of interview that she knew exactly what she was doing, supported the sentence as imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Sentence confirmed

Key Takeaways

  • A sentencing judge's failure to expressly mention every relevant subjective factor does not automatically establish appellate error; the Court of Criminal Appeal will examine the judgment as a whole and will not infer error from omission alone.
  • Where an appellant provides assistance to police but subsequently refuses to honour an undertaking to give evidence, and that refusal results in the co-offender's discharge, the practical value of the assistance is significantly diminished for the purposes of s 442B of the Crimes Act.
  • In dismissing the parity ground, the Court confirmed that differences in sentence between co-offenders are justified where those offenders differ materially in their roles, the basis of their pleas, their ages, and their prior criminal histories.
  • Manslaughter statistics are of limited utility in assessing manifest excess, given the wide range of factual circumstances the offence encompasses, but counsel's concession that a sentence falls within the mid-range for comparable offenders substantially weakens an argument of manifest excessiveness.
  • The principles in Fernando concerning the sentencing of Aboriginal offenders, and those in GDP and Gordon concerning young offenders, remain relevant considerations, but their application does not automatically produce a reduction where the objective gravity of the offending is high.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 442B (credit for assistance to authorities)

Cases
- R v Fernando (1992) 76 A Crim R 58
- R v GDP (1991) 53 A Crim R 112
- R v Gordon (1994) 71 A Crim R 459
- Lowe v The Queen (1984) 154 CLR 606 (parity in sentencing)
- Postiglione v The Queen (1997) 71 ALJR 875 (parity in sentencing)
- R v Boo Too (NSW CCA, 16 July 1992, unreported)
- R v Astill (No 2) (1992) 64 A Crim R 289
- R v Campbell (NSW CCA, 20 October 1999, unreported)
- R v Maguire (NSW CCA, 30 August 1995, unreported)
- R v Bloomfield (NSW CCA, 15 July 1990, unreported)