Decision
47Although the delay in the present case between the time of the commission of the offence and the time at which the applicant was sentenced was less than the delay in MJR itself and in some cases in which MJR has been applied, there was a delay between the date of the offence and the date of the sentencing for the offence and the Court must have regard to the principle established by MJR .
48In MJR it was held (by majority) that a sentencing court should take into account sentencing practice at the date of the commission of an offence, when sentencing practice has moved adversely to the offender between the date of the commission of the offence and the date of the sentencing for the offence. In MJR the Court followed its earlier decisions in R v Shore (1992) 66 A Crim R 37 and R v Moon (2000) 117 A Crim R 497 and declined to follow its earlier decision in R v PLV (2001) 51 NSWLR 736 .
49There is likely to be serious practical difficulty in establishing what was the sentencing practice at the time an offence was committed, when the offence was committed a number of years previously. This practical difficulty was adverted to in MJR by Sully J, with whose judgment three of the other four members of the Court agreed, at 383-4 [104] where his Honour said:-
104 As a practical matter, the approach in R v Shore cannot be implemented, as it seems to me either intelligently or intelligibly, unless it happens, as was fortuitously the fact in R v Shore itself, that there exists an authentic and credible body of statistical material that is capable of putting practical flesh upon the theoretical bones of an approach that entails reconstructing what would have been done twenty or so years previously. In that connection, I am in complete and respectful agreement with what was said by Whealy J and by Smart AJ, respectively, in the passages cited by the Chief Justice (at 370[8] and [9] supra).
50At 370[8] in his judgment in MJR the Chief Justice said:-
"The issue has also arisen in this Court in R v Moon (2000) 117 A Crim R 497 at 502[23] where Whealy J applied R v Shore and referred to R v Watson . His Honour also emphasised the difficulty of applying the principle:
[23] Although the principle stated in Shore is clear, its application in a particular appeal is often a difficult matter. First, there is a need to have a clear picture as to the range of penalties imposed at the earlier point of time. In Shore's case for example, there was an extensive analysis of over twenty cases of importation of drugs (see Schedule, shore at 49). Secondly, the perceived difference between the range of sentences disclosed at the earlier point of time and the sentence imposed by the sentencing judge may reveal a discrepancy. Nevertheless it may be one of not so high a kind that the appellate court should interfere ( Shore at 43)."
51At 370[9] in his judgment in MJR the Chief Justice said:-
9 To similar effect, are the observations of Smart AJ (at 746 [107] in R v PLV where his Honour said:
"The judge correctly had regard to the position which existed in 1974 when the offence was committed and the applicant's present position. There are practical difficulties in trying to recapture the situation which existed 25 years ago. Reference to the odd decided case may not be helpful in trying to obtain an overall picture. Whilst it is not perhaps the best source, there are judges who have a reasonably good recollection of the practice in the courts and the sentences imposed in the period 1965 to 1980. There are judges who do not have such knowledge. If there is no substantial evidence as to that practice (and the sentences) and the sentencing judge is not aware of them then they obviously cannot be taken into account."
52The onus is on an offender who contends that sentencing practice has moved adversely to him since the time of the commission of the offence, to establish what was the sentencing practice at the time of the commission of the offence; Moon per Whealy J at 502[25] and per Howie J at 510[64].
53The authorities I have already referred to show that evidentiary materials which can be used to discharge this onus include sentencing statistics, individual sentencing decisions and recollections of judges having knowledge of what was the sentencing practice at the time the offence was committed.
54As I have already noted, the evidentiary materials relied on by the present applicant were paragraph 46 of Hidden J's remarks on sentence in the present case and paragraph 40 of Howie J' remarks on sentence in R v Frazer and Spencer .
55In paragraph 46 of his remarks on sentence in the present case Hidden J said:-
"46 Mr Dalton referred me to three cases of sentence for manslaughter arising from a killing in the course of a criminal enterprise: R v Puta and Ors [2001] NSWSC 225, R v Fraser and Spencer [2007] NSWSC 1449 and R v Jackson [2009] NSWSC 168. The first two cases involved shootings. Puta and Ors was a decision of my own, while the other two cases were decisions of Howie J. It is not necessary to analyse them. I have had regard to them but, obviously, every sentencing exercise turns on its own facts and circumstances and little assistance can be gained from reference to a small number of other cases. It should be said, however, that there has been an increase in sentences for manslaughter in recent years. I would have to acknowledge that the sentences passed in Puta and Ors in 2001 would not accord with contemporary sentencing standards."
56In Puta and Others Hidden J on 30 March 2001 had sentenced a number of offenders for a manslaughter committed on 5 April 1998.
57In R v Frazer and Spencer Howie J on 11 December 2007 sentenced two offenders for a manslaughter committed on 11 January 2005. In paragraph 40 of his remarks on sentence Howie J said:-
"I believe that the manslaughter here is as serious as it could be save for the fact that the offenders are not professional robbers. By that I mean as serious as an offence of unlawful and dangerous act manslaughter can be. As I indicated in the course of submissions, I believe there has been an increase in sentences for manslaughter in more recent times, perhaps not for unlawful and dangerous act manslaughters to the same degree, having regard to the cases presented to me. I find it difficult, having regard to the range of sentences imposed in other somewhat similar cases, to mark sufficiently the distinction between committing an offence of armed robbery in the circumstance of this case and where the same acts are done, but resulting in the death of the householder."
58At the time the applicant's offence was committed Hidden J was a judge of the Supreme Court. Howie J, who had been a judge of the District Court and who had also been for a time an acting judge of the Supreme Court, was appointed a judge of the Supreme Court on 11 October 2000. It can be accepted that Hidden J in 2010 and Howie J at the time he sentenced Frazer and Spencer would have had some recollection of some sentences for manslaughter in earlier times.
59I make the following comments about paragraph 40 of Howie J's remarks. His Honour used tentative language "I believe", his Honour thought that any tendency had been less in the case of manslaughter by unlawful and dangerous act and it is unclear what his Honour meant by "in more recent times".
60As already indicated, the evidentiary materials principally relied on by the Crown were the statistics of sentences for manslaughter between 1994 and 2001 in the Judicial Commission's publication "Sentencing Homicides in New South Wales 1994-2001" and the statistics of sentences for manslaughter between April 2003 and March 2010 kept by the Judicial Commission.
61The statistics for the period 1994-2001 were for 231 offenders. Head sentences varied between 18 months and 20 years. The median head sentence was seven years. Non-parole periods varied between eight months and 14 1/2 years. The median non-parole period was four years three months. Twenty offenders received head sentences of more than ten years. Nine offenders received non-parole periods of eight years or more.
62Statistics for the period between April 2003 and March 2010, some of which were for 234 offenders and some of which were for only 193 of those offenders, showed that head sentences varied between three years and 20 years, that the median head sentence was seven years six months and that non-parole periods varied between 12 months and 16 years, the median non-parole period being three years six months.
63It seems to me that the comparative statistics, whilst suggesting that there may have been some upward trend in the lowest sentences for manslaughter, do not establish that sentencing practice has moved adversely to offenders for more serious offences of manslaughter.
64The Crown also relied on some sentencing decisions made at about the time of the commission of the applicant's offence. In R v Nikau [1999] NSWCCA 322 the Court of Criminal Appeal by majority dismissed a prisoner's appeal against a sentence passed on 30 October 1998 for an offence of manslaughter committed on 28 November 1995, being a head sentence of 12 years with a minimum of eight years. In R v Marsh [2001] NSWSC 1109 McClellan J, as his Honour then was, on 29 November 2001 imposed a sentence of ten years four months with a non-parole period of seven years nine months for an offence of manslaughter committed on 3-4 August 2000. In R v Clissold [2002] NSWCCA 356 the Court of Criminal Appeal on 19 August 2002 dismissed a Crown appeal against a sentence of 14 years with a non-parole period of eight years for an offence of manslaughter committed on 4 August 1999. Clissold had this similarity to this present case that the offender was sentenced on the basis of having been an accessory before the fact to manslaughter by unlawful and dangerous act.
65In my opinion, these three decisions are only of very limited assistance. The facts of each of the cases were very different from the facts of the present case and tend to confirm the truism that the facts of offences of manslaughter vary widely.
66Howie J in his judgment in Moon , with which Fitzgerald JA agreed, observed at 510 [65] that, if sentencing practice has moved adversely to an offender since the time of the offending, this will probably be a reflection of changes in the attitude of the legislature to the type of offending, evidenced by legislative changes in the nature of the offence or offences and increases in the maximum penalty for the offence or offences. Evidence of such changes in the attitude of the legislature can be observed in the case of some offences, such as offences of child sexual assault. However, the offence of manslaughter remained unchanged, with the same maximum penalty, between 2000 and 2010. While standard non-parole periods have been enacted for many offences, with a resulting increase in the level of sentences for some offences, there is no standard non-parole period for manslaughter.
67On the whole of the evidentiary materials placed before the Court on this application and particularly the statistical evidence adduced by the Crown, I am not satisfied that it has been established that there was any change, or at least any significant change, in sentencing practice for the offence of manslaughter between the time of the applicant's offence and the time of the sentencing of the applicant.
68This conclusion is sufficient to dispose of the first ground of appeal. It would not have been an error for the sentencing judge not to sentence the applicant in accordance with sentencing patterns prevailing at the time of the offence, if it has not been shown that there was any significant difference between sentencing patterns prevailing at the time of the offence and sentencing patterns prevailing at the time of the sentencing.
69It is, however, necessary to deal with a matter which arose in the course of the hearing of the application and is within the general purview of the first ground of appeal or at least closely related to it.
70I have already quoted paragraph 46 of the sentencing judge's remarks on sentence. In paragraph 46 his Honour said that little assistance could be gained from three cases to which his Honour had been referred, including his Honour's own sentencing decisions in R v Puta and Ors , because each case turns on its own facts and little can be gained from referring to a small number of other cases. However, his Honour then asserted that there had been an increase in sentences for manslaughter and acknowledged that the sentences he had passed in Puta would not accord with contemporary sentencing standards.
71Earlier, in paragraph 44 of his remarks the sentencing judge had said:-
"I shall arrive at the appropriate sentence ......... having regard to prevailing standards of sentences for manslaughter".
72His Honour did not expressly say whether by "prevailing standards" he meant standards prevailing at the time of the sentencing or standards prevailing at the time of the offence. However, if his Honour had meant standards prevailing at the time of the offence, I would have expected him to have expressly said so.
73It is necessary to exercise caution before concluding that so experienced a criminal judge as his Honour might have misdirected himself but the conclusion I consider I should form is that what his Honour said in paragraphs 44 and 46 of his remarks should be interpreted as conveying that his Honour considered that he should sentence the applicant in accordance with standards of sentencing prevailing at the time of the sentencing and not in accordance with standards of sentencing prevailing in 2001, and that an additional reason for not being able to derive any assistance from the sentences in Puta was that those sentences did not accord with sentencing standards at the time at which his Honour was sentencing the applicant.
74On this interpretation of his Honour's remarks his Honour did misdirect himself, that he should sentence the applicant in accordance with sentencing standards at the time the applicant was being sentenced and, as a result of this misdirection, his Honour, believing that there had been a change in sentencing standards, might have imposed a heavier sentence on the applicant than he would have done, if he had applied his recollection of sentencing standards at the time of the offence.
75In these circumstances, I consider that it is necessary for this Court to determine whether it is of the opinion that a less severe sentence than that imposed by his Honour would be warranted; ( Criminal Appeal Act s 6(3)). In making this determination I consider that this Court should proceed on the basis that it has not been established that sentencing practice has moved adversely to the applicant to any significant degree since the time of the offence.
76I have already referred to the objective facts of the offence and the subjective features of the applicant. I have already quoted paragraph 39 of the sentencing judge's remarks in which his Honour found that the offence was in the more serious category of offences of manslaughter and gave reasons for that finding.
77In my opinion, this Court should find that no less severe a sentence than that imposed by the sentencing judge would be warranted.
78I would reject the first ground of appeal against sentence.
2. The sentencing judge erred in failing to make the sentence in relation to the assault with intent to rob wholly concurrent with the sentence in relation to the manslaughter count.
79In support of this ground of appeal it was submitted by counsel for the applicant that both the offences for which the applicant was sentenced were "part and parcel" of the same plan; that the culpability for the offence of assault with intent to rob being armed with a dangerous weapon was wholly subsumed within the culpability for the manslaughter offence (counsel referred to Cahyadi v R (2007) 168 A Crim R 41 at 47 [27] per Howie J) and that in making the sentences for the two offences partly concurrent the sentencing judge had infringed the principle that an offender should not be doubly punished for the same conduct (counsel referred to Pearce v The Queen (1998) 194 CLR 610 at 623). Counsel for the applicant said that the sentencing judge had not given any reasons in his remarks on sentence for making the sentences for the two offences partly cumulative.
80Counsel for the Crown pointed out that in the proceedings on sentence counsel then appearing for the applicant had accepted that the sentences for the two offences should be partly cumulative and that cumulation to the extent of one year would be appropriate. Accordingly, it was not surprising that there had been no discussion in the sentencing judge's remarks on sentence about whether the sentences for the two offences should be wholly concurrent or partly cumulative.
81It was submitted by counsel for the Crown that it had been within the sentencing judge's discretion to make the sentences for the two offences cumulative to the extent to which he had.
82In my opinion, it was open to the sentencing judge to consider that there had been some separate criminality in the offence of assault with intent to rob which was not comprehended within the criminality for the manslaughter offence and hence to make the sentences partly cumulative.
83Even if there was only one plan, that plan was capable of being dissected into a part of the plan that Mr Elliot should be intimidated and physically harmed and a part of the plan that Mr Elliot should be robbed. The sentencing judge noted in his remarks on sentence that it was an aggravating factor of the offence of assault with intent to rob (but not of the manslaughter offence) that the offence should be committed in the home of the victim where his cash was believed to be hidden. It was not part of the plan for the manslaughter offence that Mr Elliott was to be intimidated and physically harmed in any particular place.
84I would reject the second ground of appeal.