Jones v R

83 At the time of the offence, the offender was accustomed to consuming alcohol once every two months or so and conceded to Mr Watson-Munro that he was engaged in a 'pattern of heavy binge drinking'. He said that although he had consumed some alcohol on the night in question, he accepted that it 'was not at such a level that he was entirely unaware of his actions or their consequences'.

84 Mr Watson-Munro arrived at the following conclusions about the offender: It is apparent that [the offender] has suffered from a range of psychological issues from early childhood. This arises from the isolation imposed upon him by virture [sic] of a strong family bond dynamic and tradition, according to his Romany heritage. Hence whilst he appears to have been fairly secure in terms of his immediate family, paradoxically the isolation arising from this and his itinerant lifestyle has precluded any real opportunity for this man to establish meaningful peer group relationships beyond this constellation. This no doubt coupled to his limited education has coloured his view of the world, which is of some relevance in terms of his judgment and capacity to critically evaluate problem situations free from emotional bias. Given the strong dependence that [the offender] has had upon his family, it is apparent that he would willingly follow their direction without readily questioning the broader implications arising from this lifestyle. … Arising from a fairly disjointed and itinerant life involving minimal formal education and extensive travel within Australia and the United Kingdom, [the offender] has developed a fairly myopic view of the world, which no doubt has reinforced the strong dependency that he has upon his family unit arising from the fairly intense bonding that has occurred by virtue of their isolation from the broader community. This dynamic has been further aggravated by his relatively young age and attendant immaturity. These issues are of considerable relevance to his mood state, judgment and behaviour at the material time.

85 The offender is described in a testimonial as a 'caring and sensitive young man… [who] is devastated by the result that his actions have caused to both families, a burden that he will carry with him for the rest of his life'. The clergyman who officiated at the offender's wedding to Ellen Smith indicated his 'complete surprise to learn of the events that bring [the offender] to court'. He expressed the view that the offender 'is genuinely sorry and repentant for his actions'.

86 The offender is reported to have been spending his time in custody in a productive fashion. He was originally employed as a sweeper but now works as a spray painter. His supervisor describes him as a good worker who relates well to both staff and inmates. Furthermore, he has completed a number of educational programs, including a TAFE course in carpentry. He has the continuing support of his mother and his younger siblings who visit him and his father on a regular basis.

87 Mr Watson-Munro also observed that: [h] is exposure to the harsh reality of maximum security prison life has had a salutary impact upon him and reinforced a developing resolve to deal with some of his underlying psychological issues. At examination [the offender] expressed remorse for his behaviour which appears to be genuine.

88 His only previous convictions were recorded in the Local Court in March 2006 and in the Children's Court in May 2006 and involved offences of dishonesty rather than violence. In the Local Court matter, he received a one month sentence of imprisonment for obtaining money by deception. In respect of the matters in the Children's Court, he was placed on probation for 18 months for offences of making a false instrument and receiving stolen property."

Applicant's Pleas of Guilty 13 Just prior to the commencement of the trial at which the Applicant (and other members of the Jones family) were charged with the murder of William Smith and wounding Noah Smith with intent to murder, the Applicant offered to plead guilty to manslaughter and malicious wounding. When that offer was refused by the Crown, the Applicant pleaded guilty to manslaughter and malicious wounding upon his arraignment before the jury. The Crown declined to accept those pleas of guilty in discharge of the indictment and the trial of the Applicant (and others) proceeded before the jury between 21 February and 2 July 2007. The jury acquitted the Applicant of murder and wounding with intent to murder and an alternative count of wounding with intent to do grievous bodily harm, but convicted him of manslaughter, malicious wounding and common assault. 14 With respect to the Applicant's pleas of guilty to manslaughter and malicious wounding, which were not accepted by the Crown, Buddin J adverted to the relevant authorities and concluded at [123]: "The Crown submits that a discount in the range of 10% - 15% should be extended to each of the offenders. Counsel for the relevant offenders suggested that a discount of up to 20% was called for. I am inclined to the view that a discount in the order of 15% is appropriate in the circumstances of the present case. In doing so I have had regard to the timeliness of the pleas, and to the observations of the Court of Criminal Appeal in R v FD & JD (supra) in which it was suggested that pleas of guilty offered in circumstances such as the present ought properly to have attracted a discount somewhere around the mid-point of the range in Thomson & Houlton (at 422)."

Contrition and Remorse 15 Buddin J referred to submissions concerning the Applicant's contrition and found, at [124], that the Applicant accepted responsibility for his actions and that he was "somewhat remorseful for having so conducted himself".

The Role of the Applicant 16 His Honour said with respect to the Applicant at [126]-[127]: "126 Adam Jones was a young man of 19 at the time of these offences. Although he played a pivotal role in the events which led to the fatal incident and is properly to be regarded as an adult so far as his actions are concerned, he is, and was, far from wise in the affairs of the world. Moreover, he was still very much under the influence of his family, particularly his father. His life within that family was a very insular one. I regard his age as having some relevance to the sentencing exercise: s 21A(3)(j). His age cannot however be regarded as having the significance which may have been attributed to it had he been younger and had he not conducted himself in the manner in which he did on the night in question.

127 Given all the features of the case to which I have referred, I am of the view that each of the offenders has 'good prospects of rehabilitation': s 21A(3)(g)." 17 Having referred to issues of accumulation, concurrency and totality, Buddin J turned to the question of parity and made findings, including further findings concerning the role of the Applicant, at [130]-[131]: "130 That leaves the question of parity as between the five main offenders. This aspect of the sentencing task is not without its difficulties. Prima facie, persons who are involved in a joint criminal enterprise to commit a particular offence can expect to have the objective gravity of their offending assessed at the same level. I have already indicated however that the roles played by Samuel Jones and in particular Elizabeth Jones were such as to entitle them to a penalty which is a little less severe than the other three offenders.

131 Notwithstanding the fact that there are differences in the circumstances of each of the other three principal offenders, I am unable to see a basis upon which it would be appropriate to differentiate between the sentences imposed upon them. I should add that counsel who appeared on behalf of each of those offenders, as well as the Crown, indicated that they agreed with that approach. It is nevertheless necessary to briefly explain why I have reached that conclusion. Adam Jones is younger than the other two and I have concluded that his immaturity and dependency on his family played some part in the reason for his having committed these offences. Unlike his father he has no Form 1 offences to be taken into account, although he does have the conviction for common assault which is to be brought into play. However, his role throughout the entirety of the evening which culminated in the fatal incident, was a critical one. Furthermore, he must bear responsibility for having turned the initial argument from a verbal argument into something considerably more serious by having produced the knife and threatening to use it."

Special Circumstances 18 A finding of special circumstances was made with respect to the Applicant (and others) at [137], principally to reflect the fact that each offender was to serve their first term of imprisonment and would need an extended period upon release from custody to re-integrate into society and also because the sentences were to be partly accumulated.

Sentencing for Manslaughter 19 With respect to sentencing for the crime of manslaughter, his Honour said at [135]-[136]: "135 The various authorities to which I earlier referred make plain that there is no established tariff for the offence of manslaughter. Nevertheless, I have derived some assistance from a number of cases which, the Crown submitted, were somewhat comparable to the present case and as such give some indication as to the appropriate range. The cases to which I was referred by the Crown are R v Ladd [2001] NSWSC 1055; R v Bullock [2005] NSWSC 1071; R v Berrier [2006] NSWSC 1421; R v Cavanough [2007] NSWSC 561 and R v Cakovski [2005] NSWSC 1001. For completeness I should indicate that I have had regard to the review of relevant authorities undertaken in R v Forbes (2005) 160 A Crim R 1 at 37-43 and in Cakovski (supra) at pars 35-6.

136 It appears to be common ground that, with the exception of the decision in Ladd (supra) (in which the offender had a significant prior history including a conviction for murder), those cases suggest that a head sentence in the order of 7½ years to 9 years with a non-parole period of 5-6 years may be appropriate in a case such as the present. Notwithstanding the well recognised limitations of that kind of material and although the exercise of the sentencing discretion is for the Court alone, I am disposed, in what the Crown aptly described, as the unique circumstances of the present case, to have some regard to what those authorities indicate." 20 Before moving to pass sentence upon the offenders, Buddin J concluded at [142]: "In the final analysis, it is necessary to impose sentences which properly reflect the objective gravity of the offences in question. Furthermore, the sentences must give effect not only to the various matters referred to in s 3A of the Act but also to the maximum penalty prescribed by the legislature. The considerations to which I have just referred apply equally to the non-parole period and to the overall sentence: see R v Simpson (2001) 53 NSWLR 704. This case involves the death of a man following an unrestrained attack upon him by a number of persons during the course of which a number of dangerous weapons were used. Another man was badly injured when he attempted to assist the deceased. The attack took place in the presence of, and was witnessed by, a number of members of the deceased's family, including relatively young children. A message must be sent out that the community will not tolerate disputes, even those of an apparently private nature, being resolved in the fashion in which the present one was. Notwithstanding the circumstances in which the offenders committed these offences, a human being has needlessly lost his life. Nothing less than custodial sentences of some length can thus be countenanced."

Submissions of the Parties 21 Mr Trevallion, counsel for the Applicant, submitted that having regard to the strong subjective case of the Applicant and the circumstances of the offences:

(a) the overall sentences were manifestly excessive; and

(b) his Honour erred in finding that a discount of 15% for the pleas of guilty was appropriate in the circumstances of the Applicant's case. 22 Mr Trevallion submitted that the learned sentencing Judge had not given appropriate weight to the subjective circumstances of the Applicant, nor the provocative conduct of the deceased and other members of the Smith family. In particular, relying upon R v Fernando (1992) 76 A Crim R 58, it was submitted that his Honour did not give appropriate weight to the way in which the Applicant's membership of the Romany gypsy community helped to explain, or throw light upon, his involvement in the offences and his particular circumstances. 23 With respect to the Applicant's level of culpability, Mr Trevallion pointed to the fact that the initial dispute between the two families arose because of the Applicant's desire to marry Ms Smith and their subsequent elopement and marriage in secrecy, together with the dynamics within the Jones family which influenced the Applicant. Particular reference was made to the report dated 12 September 2007 of Mr Watson-Munro, psychologist, in the passages extracted by Buddin J at [84] of the remarks on sentence (set out at [12] above). 24 Mr Trevallion emphasised the extent of the provocative behaviour of the deceased, and the deceased's family, which served to mitigate the Applicant's culpability. 25 Reliance was placed upon sentencing statistics from the Judicial Commission of New South Wales for manslaughter offences, in support of the contention that the sentence for manslaughter in this case was manifestly excessive. 26 With respect to the discount allowed for the Applicant's pleas of guilty, Mr Trevallion submitted that insufficient weight had been given to what was said to be the very substantial saving of court time and resources and that a greater discount should have been allowed in this case. 27 The Crown submitted that the sentencing Judge gave careful consideration, and appropriate weight, to the Applicant's subjective features. Likewise, the Crown submitted that his Honour had carefully considered the issue of provocation on sentence, recognising the need not to allow the Applicant a double credit in this respect, given that an element of provocation had operated in the Applicant's favour with his acquittal of murder. 28 The Crown pointed to decisions of this Court which have emphasised the need for particular care with respect to the use of sentencing statistics generally (Robertson v R (2007) 177 A Crim R 121 at 127 [36]) and other sentencing decisions for manslaughter: Ward v R (2006) 166 A Crim R 273 at 284-289 [59]-[74]; Salah v R [2009] NSWCCA 2 at [37]-[41]. 29 With respect to the discount allowed for the Applicant's pleas of guilty, the Crown submitted that no error had been demonstrated in this respect, and that a 15% discount lay within the discretion of the sentencing Judge. 30 The Crown submitted that this was a serious case of manslaughter, associated with offences of malicious wounding and assault committed against two other victims. The Applicant had played a significant role in the violent confrontation between the two families, and had escalated the tension directly when he produced a knife and, at a later point, was armed with a sword. 31 The Crown submitted that the appeal ought be dismissed.

Decision 32 In view of submissions made in support of the application, it is appropriate to recite some basic principles. 33 The Court of Criminal Appeal functions within well-established jurisdictional boundaries and is concerned, on an application for leave to appeal against sentence, primarily to ascertain whether the decision of the first-instance Judge was in error: R v Vachalec (1981) 1 NSWLR 351 at 353. An appeal to this Court is not by way of rehearing, and error must be established before the Court may intervene: R v O'Donoghue (1988) 34 A Crim R 397 at 401. This Court is bound by findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504: Kardoulias v The Queen (2005) 159 A Crim R 252 at 265 [56]. 34 To the extent that some of the Applicant's submissions assert that "insufficient weight" was given to a factor or that "appropriate weight" had not been given to another factor, it is timely to refer to the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11] that "questions of weight in the exercise of a discretion are matters for the first instance judge" and that "the circumstances in which matters of 'weight' will justify intervention by an appellate court are narrowly confined". 35 The Applicant does not contend that there is patent error in this case, but submits that there is latent error in that, having regard to the findings of fact made, the sentences imposed upon the Applicant were manifestly excessive. The real question is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25]. 36 As is apparent from the extracts from the remarks on sentence set out earlier in this judgment, the learned sentencing Judge made careful and detailed findings with respect to the objective seriousness of the offences and the Applicant's subjective circumstances. No error, either patent or latent, has been demonstrated with respect to his Honour's assessment of the level of the Applicant's culpability for his crimes and his subjective circumstances. 37 In my view, the decision in R v Fernando does not assist the present Applicant. Mr Trevallion confirmed that the decision had not been relied upon before Buddin J. In R v Fernando, Wood J made clear, at 62, that the same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or his membership of an ethnic or other group, although the Court should not ignore those facts which exist only by reason of the offender's membership of such a group. The principles in R v Fernando have particular application where deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry exist, which bear upon the commission of the crime, although the application of the principles will depend upon the circumstances of the case: see R v Kelly (2005) 155 A Crim R 499 at 503-504 [17]-[19] (and the cases cited therein). 38 It is apparent that his Honour had regard to the Applicant's family and social dynamics insofar as they played a part in his involvement in these serious crimes. No error has been demonstrated in his Honour's approach in this respect. 39 It is apparent from his Honour's findings of fact that the Applicant had played "a pivotal role" (at [126]) and that his part throughout the entirety of the evening, culminating in the fatal incident, was "a critical one" and that "he must bear responsibility for having turned the initial argument from a verbal argument into something considerably more serious by having produced the knife and threatening to use it" (at [131]). Whilst acknowledging that the Applicant's life within the family was "a very insular one" and that he was "still very much under the influence of his family, particularly his father" (at [126]), Buddin J found that the Applicant had played a significant role in the violent confrontation, in which the Applicant was criminally responsible for the death of one man, the wounding of another and the assault of a teenage girl. 40 No error has been demonstrated in his Honour's allowance of a 15% discount for the Applicant's pleas of guilty. Bearing in mind that these pleas were offered, for the first time, just prior to the commencement of the trial, the discount allowed fell within the available discretionary range in accordance with the principles summarised recently in Borkowski v R [2009] NSWCCA 102 at [32]. 41 References to sentencing statistics for manslaughter offences provide little assistance: Salah v R at [40]; Stewart v R [2009] NSWCCA 152 at [16]-[18]. In manslaughter cases, the circumstances of the offence and criminality involved can vary enormously, and the assessment of these circumstances, and of the criminality, is very much a matter for the judgment of a sentencing judge: Stewart v R at [17]. 42 This case is a further example of the disastrous consequences which can flow from a public affray: Hopley v R [2008] NSWCCA 105 at [47]. The Applicant was armed with a weapon and was part of a joint criminal enterprise which saw the killing of a man in circumstances of clearly excessive self-defence. He committed offences of violence against three separate victims. 43 In the present case, the learned sentencing Judge undertook a careful appraisal of the objective circumstances of the offence, and the subjective circumstances of the Applicant, and reached a decision with respect to sentence which was clearly open in all the circumstances of the case. It has not been demonstrated that the sentences passed were unreasonable or plainly unjust so as to make good a ground of appeal based upon a claim of manifest excess. To the contrary, the sentences passed were plainly open and were well within the discretionary range available in the circumstances of the case. 44 I propose that leave to appeal be granted, but that the appeal be dismissed.

45 LATHAM J: I agree with Johnson J. **********

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