Solicitors for appellant: Director of Public Prosecutions

2 Appeal upheld.

3 Sentence of 6 years' imprisonment quashed and a sentence

of 10 years' imprisonment with effect from 6 September 1991

substituted.

COX J The Attorney-General seeks leave to appeal against the sentence of six years' imprisonment imposed on the respondent on his plea of guilty to the crime of manslaughter. The sole ground is that the sentence is manifestly inadequate having regard to all the circumstances of the case.

2. The respondent and his brother John were convicted in February 1992 of the murder of a resident odd job man at the Wellington Tavern, Launceston in the early hours of the morning of 6 September 1991. The respondent successfully appealed against his conviction for that crime and an order was made on 3 November 1992 for his re-trial. His brother's appeal was dismissed. On his re-arraignment in March 1993, the Crown accepted his plea to manslaughter.

3. The circumstances of the offence were as follows. The respondent consumed a large amount of intoxicating liquor at a family barbecue during the course of Thursday 5 September 1991 and went to the Wellington Tavern about mid-evening where he continued drinking and played 8-ball. About midnight he started to annoy a female patron who moved towards another man whom the respondent thereupon challenged to a fight. That person declined but the respondent then challenged a second man, Mr Norquay, to a fight claiming the latter was staring at him. Norquay and the respondent went out to the back of the hotel where they fought and the respondent was bested by Norquay and suffered a bloodied nose and facial bruising. Returning to the hotel he bumped into the licensee's sixteen year old son Benjamin Neate and told him to get out of the way. Neate responded with a "scoffing" laugh and the respondent struck him on the nose. He was thereupon asked to leave the hotel but refused and was ejected forcibly. Although four men participated in removing him, only sufficient force as was necessary to remove him from the hotel was used, and there is no suggestion that he thereby sustained any further injury other than to his pride.

4. He left uttering a threat which one witness claimed to have been "this pub is fucked" and went to his own home which was nearby. There, according to an unsworn statement he made at his trial for murder, he got a glass of wine and his wife got a towel to clean his face up. She retired to the bedroom crying while he, after drinking the wine, took a baseball bat and the car keys "thinking of going back to the Wellington to abuse them and use the bat to keep them at bay". He then drove to the home of his father who lived not far away and spoke to him and to another brother, Ron. Still looking the worse for his fight with Norquay he told Ron that he wanted help to cause some trouble at the tavern and that he "let him get the impression that the four blokes had done it so he would come with (the respondent) and back (him) up." The learned sentencing judge was told that he asked Ron to help "fix them up", but Ron refused and suggested that he instead drive him to the hospital for attention. The respondent decided to leave and Ron physically restrained him whereupon he agreed to be taken to the hospital, but while his brother was dressing, the respondent went to his car and drove off. According to his unsworn statement before leaving the premises his father had asked him what was going on. The statement continued:

"I explained quickly and he mentioned about going to the

doctors to get checked up. Ron agreed. I told them both to

get stuffed and Ron and dad grabbed me and I told them to

leave me alone. Ron headed back towards the front door so I

went down the steps and got into the car. I then decided to

go and see if (John) would help me."

5. The respondent drove to his brother John's home in Welman Street, woke him up and, asking him for help, told him about "a run in with four blokes that gave me a bad time." From a display stand he grabbed a small samurai sword with a blunt edge but sharp point. His brother John was against taking it but the respondent said it would "help to keep them away" and told his brother he had the bat in the car. John Lyons dressed and the two brothers proceeded by car to the Wellington Tavern which was now closed and where they went to the rear of the premises. The licensee, his son Benjamin and the deceased were by now the only occupants of the bar. They heard a noise on the locked rear door of the bar and saw the point of the sword thrust twice through it from the outside. The respondent had the sword and was responsible for these acts and John Lyons was armed with the baseball bat. The two then went to another locked door which the deceased approached from the inside of the hotel having procured a shortened billiard cue. Foolishly perhaps, (although the door being surrounded by glass entry might have been forced relatively easily) the deceased opened it and the two brothers burst in, the billiard cue immediately flying from the deceased's hand to the floor. While Benjamin Neate was telephoning the police the respondent, without himself sustaining injury, subdued the deceased and John Lyons struck the licensee several blows with the bat rendering him unconscious. He then returned to the lounge bar where the respondent had hold of the deceased with a vice like grip on his arms, pinning them behind his back. While the respondent thus held the deceased, John Lyons struck him at least four blows on the head with the bat and struck him a number of blows on the body. The blows to the head caused severe brain damage which resulted in death a few days later. Not aware that the deceased had received fatal blows, the two brothers decamped and an hour or so later the respondent telephoned the tavern where the call was taken by a police officer. The respondent said, "Did you get the message not to give us a hard time? Are we still invited to drink there?" The officer asked who was calling and the respondent replied, "I can't tell you that but we'll come down in a couple of days and have a drink".

6. Interviewed by police later that day, the respondent denied returning to the tavern after his initial expulsion or going to his brother John's place. After the death of the deceased he was re-interviewed and admitted his return and his actions in thrusting the sword through the door. He claimed that the deceased had him pinned against a wall by the throat and released his hold only when John, he thought, may have hit him with the bat. They had both thereupon left. In substance he repeated this claim in his unsworn statement at the murder trial.

7. The Crown put the respondent's liability for manslaughter on the basis that he aided and abetted his brother John in striking the deceased about the head intending that John would cause bodily harm to the deceased but not intending to cause death or bodily harm which he knew to be likely to cause death in the circumstances.

8. Undoubtedly this was a very serious instance of manslaughter. Notwithstanding the efforts of his father and brother Ron to dissuade him from any further confrontation with the occupants of the tavern, he had persisted in his determination to return there, armed with weapons and reinforced by the presence of another, and had secured that help by misrepresenting the circumstances in which he had received his injuries. He displayed considerable aggression in thrusting the sword through the door and induced his brother to behave in a violent way against persons with whom the latter had no quarrel. His violent and unlawful conduct started his brother on a path which culminated in the death of the deceased and in a sentence of life imprisonment being imposed upon that offender. He held the deceased defenceless while his brother inflicted at least four blows to the head with a baseball bat and other blows to the body, intending that bodily harm should be thereby inflicted. No one could reasonably suppose that the harm would be other than likely to cause serious injury to health even though not likely to cause death in the circumstances.

9. There was little advanced by way of mitigation. The respondent was twenty-six years of age at the time of the crime and has a substantial record of previous convictions which have earned him numerous terms of imprisonment. Mostly they are for burglary and stealing, but there is a disturbing number of crimes of violence including three convictions for assault, two of assaulting police and one of robbery with violence which resulted in a sentence of four years' imprisonment being imposed in 1988. He had been out of gaol about eighteen months at the time of the crime. The learned judge passing sentence rejected his contention that he had shown remorse, relying on the evidence of the telephone call, his lies to the police in two interviews and his lies in the unsworn statement. His Honour did however pay regard to the plea of guilty. With respect, I would not consider in the circumstances of this case that the tendering of a plea of guilty for manslaughter, when he was facing trial on a charge of murder, was a matter entitling the respondent to any credit. True, he thereby "entirely relinquished all prospect of acquittal" (a factor which Wright J considered significant in the circumstances of the case in R v Dowie [1989] TASSC 44; (1989) Tas R 167 at 184) but as he was at least at risk of conviction for murder and the likelihood of complete acquittal was remote, the adoption of such a course of itself entitled him to little mitigation of penalty. There was nothing to suggest that his responsibility was diminished by reason of mental disorder or lack of intelligence.

10. Counsel on his behalf emphasised that he had been brought up in a household where due to his father's influence there was a code of sticking together, trusting no one outside the family and having the last word in any altercation with others. Even his father however, together with his elder brother Ron, attempted on that night to dissuade him from acting in accordance with the third aspect of that code. In my view, a lengthy deterrent sentence which reflected the community's disapproval of this kind of outrageous conduct was clearly called for.

11. A sentence of six years' imprisonment was imposed backdated to 6 September 1991, the day upon which he was taken into custody. This is a sentence towards the top of the range of sentences passed in the last twelve years or so in this jurisdiction for the crime of manslaughter. Sentences have ranged from twelve months to seven years, the latter penalty being imposed on three occasions in thirty-six instances of a single count being under consideration (Sentencing in Tasmania, Kate Warner, at 300). In Kearnan v The Queen unreported CCA 80/1968 (a case of provocation) Crawford J noted that the record showed:

"... that since 1952 the sentences imposed on persons

convicted of manslaughter, being murder reduced to

manslaughter by way of provocation have varied from 5 years

to 7 years, and at least in one case the prisoner's record

was far from exemplary. The longest term of imprisonment

for manslaughter, not being murder reduced to manslaughter

by way of provocation, was 8 years."

"I am in complete agreement with the view expressed by Crisp

J in Wise v The Queen (1965) Tas SR 196 at p 200 in the

passage where, speaking of crimes of the same generic

character but which differ individually and infinitely both

in degree and circumstances, he said that sentencing is an

art and not a science. Particularly is this so in the case

of a crime such as manslaughter. 'There is no offence in

which the permissible degrees of punishment cover so wide a

range, and none perhaps in which the exercise of so large a

discretion is called for in determining the appropriate

penalty' - per Street CJ in R v Withers (1925) 25 SR (NSW)

382 at p 397."

13. In view of the gravity of the present case, the lack of spontaneity in the respondent's actions, his determination despite urgings to the contrary from those normally having influence over him to involve himself in an unlawful confrontation involving at least an assault by threat when both he and his companion were armed with offensive weapons, and the lack of any significant mitigatory factor, I think a very substantial sentence was called for. Because of the great variation in the seriousness of individual cases of manslaughter it would be wrong for this Court, in determining whether the sentence in this case was or was not manifestly inadequate, to feel unduly constrained by the relatively small number of sentences exceeding it in the last forty years. I agree with the comments of Wright J in R v Dowie (supra) in respect of a tariff approach which postulates that sentences in previous cases for similar crimes constitute a framework within which the challenged sentence must fit or be seen to be manifestly inadequate or excessive as the case may be. He said at 186:

"I find the so called 'tariff' approach to sentencing of

little value, particularly where cases supposedly

illustrative of the tariff are few, or the relevant facts

are not directly comparable. A court may frequently be

aided by the provision of statistical data as to sentences

previously imposed in this State, especially if it

illuminates the dispositions made where a particular type of

relationship exists (see Tracey and Ors v The Queen (1987)

Tas R 108), but in my view, it cannot allow such material to

overshadow or displace its own evaluation of the gravity of

the offence before it in light of all the known facts and

circumstances."

"It may well be that in cases of crimes which fit into a

repetitive format and which are comparatively frequent, such

as burglary and stealing, a tariff may be discerned fairly

readily but in cases of violence, particularly those of

assault which frequently vary tremendously from each other

in quite major respects, a distortion can occur in the

sentencing process if a perceived tariff is applied to

shackle the discretion of the sentencing judge."

15. In any event a consideration of sentences imposed in other Australian States demonstrates that sentences in excess of eight years' imprisonment are not uncommon for manslaughter by intentional bodily harm (Fox and Frieberg, Sentencing State and Federal Law in Victoria, 1985, 500; Carter, Australian Sentencing Digest, 1985, 287; Potas, Sentencing Violent Offenders in New South Wales, 1980 par1-151). In Thomas, Principles of Sentencing, 2nd edn at 85 the author says of the position in the United Kingdom:

"Sentences at the upper limit of the scale for 'unlawful

act' manslaughter, which appears to be about ten years

imprisonment, will be reserved for cases where the accused

has taken part in an enterprise where grave violence was in

contemplation, but has escaped conviction for murder because

the principal has gone beyond the scope of the common

purpose."

16. In my respectful opinion the crime committed by the respondent was of a heinous nature and a sentence of six years' imprisonment was manifestly inadequate. The court has a discretion whether to grant the Crown leave to appeal and in my view we should. Nothing has been advanced which calls for us not to do so. It was submitted that the respondent has been in custody since October 1991, a period of twenty months, and has endured committal proceedings, trial and conviction for murder and an appeal leading to a direction that he be retried therefor and to sentence after a plea to manslaughter. Now he has faced a Crown appeal seeking to increase the sentence. Delay and the anxiety which accompanies it can be a relevant consideration (Rinaldi, Dismissal of Crown Appeals (1983) 7 Crim LR 306) but this is a far cry from the case where a prisoner receives a non-custodial sentence or worse still a short custodial sentence which he serves and is then met with an application by the Crown that he be incarcerated. In my opinion it is in the public interest that the sentence should be quashed and one appropriate to the gravity of the offence substituted. Having regard to the matters I have already mentioned and to those adverted to by my brethren I would agree that a sentence of 10 years' imprisonment is appropriate. I would grant leave to appeal and increase the sentence to 10 years' imprisonment from the date the respondent was taken into custody.

WRIGHT J The Crown seeks leave to appeal against a sentence of six years' imprisonment imposed upon the respondent on 30 March 1993. The sentence was imposed in respect of one count of manslaughter which arose out of the respondent's assisting his brother whilst he struck the deceased man at least four blows around the head with a baseball bat on 6 September 1991. The respondent's brother was convicted of murder. So too was the respondent, but he appealed against that conviction and after the appeal was allowed and a new trial ordered, he entered a plea of guilty to manslaughter and the Crown accepted this plea.

2. There is no real dispute as to the relevant facts. The respondent created a disturbance at a hotel in Launceston and, following a fight with another patron, he was ejected by the licensee's son with the assistance of other patrons. He attempted then to enlist the aid of his elder brother, Ronald to return to the hotel to help "fix them up". He lied to his brother as to the events which had led up to his ejection from the hotel. His brother however refused to assist and suggested that he go to hospital for medical treatment. After this rebuff the respondent visited another brother, John. After a brief conversation John and the respondent returned to the hotel armed with a baseball bat and a replica samurai sword. The respondent was carrying the sword and his brother the baseball bat. It was about 1.30am. The hotel had closed and the licensee, his son and the deceased man, Dobson were in the bar having a beer together after cleaning up the hotel. The hotel doors were all locked.

3. The respondent and his brother went to a side door and beat upon it. It was not opened to them. Shortly after this the respondent thrust the samurai sword through the door on two separate occasions. They then went to a rear door of the hotel. Mr Dobson, apparently anticipating this manoeuvre, picked up a broken 8-ball cue from the bar and went to the door to confront them. Although warned by the licensee not to open the door, Mr Dobson did open it and was then assaulted by either the respondent or his brother. The respondent and John Lyons entered the hotel. The respondent was still carrying the sword and John still had the baseball bat. The licensee's son went to the telephone to call the police and the licensee himself approached the rear door. He was struck a number of times with the baseball bat by John Lyons and knocked unconscious. John Lyons then returned to the lounge bar where Barry Lyons, the respondent, had the deceased, Dobson, in a firm grip, pinning his arms behind his back. His grip was so strong that the pathologist found bruising upon Mr Dobson's forearms when he subsequently conducted the post mortem examination.

4. Whilst Barry Lyons was holding the deceased, John Lyons struck at least four blows at the deceased's head with the baseball bat. One of these blows apparently caused death. Other marks of injury were found upon Mr Dobson's body after death, including marks across the stomach suggestive of blows to that area of his anatomy with the samurai sword. It was by no means clear however that this was the implement which caused those injuries.

5. There is no need to detail subsequent events save to say that the respondent's conduct since then is in no way indicative of remorse or contrition.

6. The Crown prosecutor submitted to the learned sentencing judge, Crawford J, that it was a very serious case of manslaughter requiring a significant sentence. There can be no doubt that this submission was correct. Upon applying for leave to appeal, the Crown did not seek to draw a parallel between this sentence and others imposed by judges at first instance or approved by this Court on appeal. Whilst this approach was criticised by counsel for the respondent, I think it was the correct approach in the circumstances. I adhere to what I said in The Queen v Dowie [1989] TASSC 44; (1989) Tas R 167 at 186 where I observed:

"I find the so called 'tariff' approach to sentencing of

little value, particularly where cases supposedly

illustrative of the tariff are few, or the relevant facts

are not directly comparable. A court may frequently be

aided by the provision of statistical data as to sentences

previously imposed in this State, especially if it

illuminates the dispositions made where a particular type of

relationship exists (see Tracey and Ors v The Queen (1987)

Tas R 108), but in my view, it cannot allow such material to

overshadow or displace its own evaluation of the gravity of

the offence before it in light of all the known facts and

circumstances."

7. It is appropriate I think to recall those words on this occasion because the number of cases available for comparison in respect of what is inappropriately called "involuntary" manslaughter are relatively few, and those which are available are factually diverse.

8. As Chambers J said in Kearnan's case, 80/1968 at 2, quoting the words of Street CJ in R v Withers (1925) 25 SR (NSW) 382 at 397:

"There is no offence in which the permissible degrees of

punishment cover so wide a range, and none perhaps in which

the exercise of so large a discretion is called for in

determining the appropriate penalty".

9. The remarks of the Court of Appeal in R v Cascoe (1970) 2 All ER 833 at 837 are also worth noting:

"As for sentence, manslaughter is, of course, a crime which

varies very greatly in its seriousness. It may sometimes

come very close to inadvertence. This is one end of the

scale. At the other end of the scale, it may sometimes come

very close to murder."

10. Counsel for the respondent submitted that a comparison with other sentences, especially those sentences passed in respect of Hutt, Bell and Jeffrey by Underwood J on 9 October 1989 would reveal that the sentence imposed in the present case was at the higher end of the scale in this State. It was suggested that Hutt, Bell and Jeffrey was a worse case than the present case but the sentences there imposed were lower. I cannot agree with this submission. Whilst a bad case for many reasons, Hutt was no worse than the present. The three individuals sentenced on that occasion had not joined in holding the deceased man while their colleague beat him about the head, furthermore, their entry onto his premises was a spur of the moment decision whereas in the present case there was an element of preplanning and finally, the offenders were generally younger and had shorter records than the present respondent. However, as I say, I do not feel a case by case comparison in this way is either helpful or productive of an appropriate result in cases of this kind. I think it fair to observe that in all the circumstances of the present case, though lacking the requisite intent to murder, the respondent's culpability for the criminal attack upon Mr Dobson which resulted in his death, fell little short of that of his co-offender, John Lyons who was convicted of murder. Nonetheless it is plain law that recognition must be given to the fact that the conviction under appeal was in respect of a lesser offence than murder. See Lovegrove v The Queen (1961) Tas SR 100.

11. Counsel for the respondent also submitted that in the present case the learned sentencing judge was entitled to reduce an otherwise appropriate sentence in light of the fact that the accused had entered a plea of guilty. In aid of this proposition he referred again to what I had said in Dowie's case (supra) at 184 where I expressed the view that a plea of guilty, whether accompanied by remorse or not, entitled the offender to some discount. However, as I also observed in the passage referred to, the effect of a plea of guilty may have different weight in individual cases and this weight may vary quite significantly from one case to another. In the present circumstances I think that the respondent is entitled to little, if any, weight for this factor.

12. The Crown case as to all external ingredients of the offence charged was strong. Notwithstanding that for proof of those events heavy reliance was placed upon the evidence of Benjamin Neate, a jury may well have convicted the respondent of murder. Such a prospect was by no means remote. On the other hand, the respondent's prospect of an outright acquittal was very remote indeed. In these circumstances I do not believe that the respondent's plea of guilty entitled him to any significant discount of his sentence.

13. The Crown maintains that the sentence imposed is manifestly inadequate. This was undoubtedly a bad case of manslaughter, indeed it was one of the worst which I have had to consider, but as I have already observed, cases for comparison are few and far between. As I said in The Queen v Rouse 64/1990:

"It is trite to observe that this court should only

intervene in the clearest cases. A sentencing judge has a

wide discretion and this court should not be seen as a

tribunal where punishments are refashioned as a matter of

course to reflect the predilections or idiosyncrasies of its

individual members."

13. After carefully weighing all aspects of the offence committed by the respondent with the above considerations in mind, I have concluded that the sentence actually imposed in this case should properly be characterized as manifestly inadequate. I have had the opportunity of reading what my learned brother Cox J has had to say regarding the exercise of this Court's discretion to grant the Crown leave to appeal. Like him I agree that leave should be granted. In my opinion the appeal should be allowed and the respondent's sentence should be increased to ten years' imprisonment to date from the day he was taken into custody in October 1991.

ZEEMAN J This is an application by the Attorney-General for leave to appeal against a sentence of six years' imprisonment which was imposed on the respondent on his plea of guilty to the crime of manslaughter. Leave is sought to appeal on the ground that the sentence is manifestly inadequate having regard to all the circumstances of the case.

2. The relevant facts have been stated by my learned brother Cox J in his reasons for judgment which I have had the opportunity of reading. It is unnecessary for me to repeat those facts. I am content to adopt his statement of them. I also agree, for the reasons expressed by his Honour, with his conclusions that the sentence which was imposed upon the respondent was manifestly inadequate and that it is appropriate to grant the application and to uphold the appeal.

3. The respondent fell to be sentenced upon the basis that he had assisted his brother in the application of violence to the deceased, which violence caused the death of the deceased, the respondent intending that bodily harm would be caused but not having any state of mind as is referred to in the Criminal Code, s157(1)(a), (b) or (c).

4. Although it is true to say, as is disclosed by Professor Warner in her work Sentencing in Tasmania at 300, that during the period reviewed by her, namely 1978 to 1989, the most severe sentence imposed on a single count of manslaughter was one of seven years' imprisonment, that cannot be taken as establishing the upper level of sentence appropriate for manslaughter. Culpable homicide falling short of murder but constituting manslaughter may take a variety of forms. The true explanation for the range disclosed by the statistical data assembled by Professor Warner may be that, having regard to the relatively small size of the sample, it is impossible to derive any form of tariff from the sentences imposed. The particular sentences imposed during this period which were referred to by counsel on both sides would indicate that none of the cases referred to were of the same degree of seriousness as the present case.

5. Longer sentences have been imposed in this Court for the crime of manslaughter. In Zsebe-Takacs v R 51/1960, this Court, with some apparent reluctance, dismissed an application for leave to appeal on the basis of the inadequacy of a sentence of eight years' imprisonment imposed in respect of one count of manslaughter which was a serious case of intentional wounding constituting use of excessive force in self defence. In Kearnan v R 80/1968, this Court dismissed an application for leave to appeal on the basis of excessiveness against a sentence of twelve years' imprisonment imposed in respect of the manslaughter of the applicant's wife and her alleged lover in circumstances where the verdicts of manslaughter appear to have been as the result of the jury having found provocation.

6. The observations made by Neasey J in the latter case, at 16-17, are of general application and are of relevance to the present case. I adopt them. His Honour observed as follows:

"Learned counsel for the applicant also contended that the

12 years sentence imposed greatly exceeded any sentence

imposed for manslaughter by the Supreme court of this State

in recent years in cases in which reduction from murder by

way of provocation was a reasonable hypothesis. It is true

that in the more recent cases, of which there are not many,

and in all of which I think there was a single killing, 7

years seems to have been a maximum. Within the post-war

period, however, considerably longer sentences have been

imposed. I support the view that as a general rule, insofar

as it is possible to do so, similar punishments ought to be

imposed for similar crimes. But the possibility is

inevitably limited and circumscribed. For crimes which are

common, and which occur from week to week without a great

deal of variation in the circumstances in which they are

committed, such as in this community breaking entering and

stealing, it is possible to set a fairly standardised upper

limit of punishment; and this Court has followed that

policy. The lower limit of course in such cases will vary

according to the character and circumstances of the

offender. That must be so, since the objectives of reform

and rehabilitation are so important.

But where the circumstances in which a given crime is

committed tend to vary greatly, it is difficult to apply any

standardised upper limits of punishment other than those

which the law prescribes. The Full Court in R v Withers

(1925) 25 SR(NSW) 382 mentioned above, has stressed the

particular insusceptibility of the crime of manslaughter to

any such standardisation, and I fully subscribe to that

view."

7. In my view this was a particularly bad case of manslaughter. The respondent had been evicted from the Wellington Tavern in circumstances where he could not legitimately complain at having been evicted. He thereupon set off to obtain assistance so that he and whoever assisted him could return to the tavern to help "fix them up". Initially one of his brothers refused to assist the respondent and endeavoured to restrain him from returning to the tavern. Undeterred the respondent then visited another brother who agreed to accompany him back to the tavern. They arrived there armed with a baseball bat and a sword in the early hours of the morning when the tavern was closed for business. The victim was a person employed about the tavern. The respondent and his brother obtained entry to the tavern. There various violent acts occurred culminating in the brother striking the deceased about the head with four measured blows with a baseball bat whilst the respondent held the deceased in what was described as a vice like grip. It was not a case of one blow being struck whilst the respondent held the deceased. It was a case where there the respondent continued to hold the deceased in a position where he was powerless to evade the measured blows being administered to him. The accused's conduct can only be explained by a determination on his part to inflict very serious systematic violence upon the occupants of the tavern whoever they might be. In my view there was little, if anything, which went in mitigation. Counsel for the respondent referred to his plea of guilty. I do not consider that that plea operated in mitigation. The circumstances of the case were such that the respondent's plea of guilty amounted to no more than an acceptance of the inevitable. Counsel for the respondent referred to the length of time which had elapsed since the final disposition of the matter and the anxiety suffered by him as a result. Little weight ought to be attached to that. One thing ought to have been clear to the respondent at all times, namely, that he would be convicted of murder or manslaughter. In either event he could not but have expected to spend a significant period in gaol. The only matter which might have caused him anxiety was not knowing whether ultimately he would suffer a life sentence or a sentence for a term of years and, if so, for what term.

8. The ultimate conclusion I have reached is that the respondent's crime was one of the most serious instances of the crime of manslaughter with no significant mitigating factors. The respondent showed no mercy to the deceased and no occasion arises to extend any mercy to the respondent. In my view a sentence of ten years' imprisonment is appropriate.

9. I would grant the application for leave to appeal, uphold the appeal and in lieu of the sentence imposed, impose a sentence of ten years' imprisonment to commence from the date upon which the respondent was taken into custody.