The Appropriate Sentence
27 The prisoner's offence rendered him liable to imprisonment for 25 years - see Crimes Act 1900, section 24. The difficulty lies in deciding where, within the range available under the section, one should place the prisoner's sentence to reflect his criminality, subjective circumstances and the various purposes of sentencing. In this connection it is appropriate to recall the oft quoted remarks of the Court of Criminal Appeal in R v Blacklidge (Unreported, CCA, 12 December 1995):
"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. ( R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)"
28 It can fairly be said on the prisoner's behalf that he did not strike the fatal blows and that what occurred - at least three blows, one or more of which was sufficient to result in blood spatter on the bed-head and adjacent wall - is not what would commonly be expected to flow from an intention merely to knock someone out. However, blows to the head designed to render a victim unconscious are not something capable of precise measurement in advance and do have the clear potential to do more damage than intended. It is hard to believe that proposition is not one of which every adult would be aware. The prisoner joined in an enterprise with those risks and left the others, over whom he then lost all relevant control, to carry out the task.
29 While at liberty on condition he be of good behaviour, he chose to participate in the invasion of the deceased's home and the intention to render by violence the deceased unconscious. Although no doubt this was not the prisoner's intention, in consequence the deceased died. Without intending to be melodramatic, the deceased lost everything. In my view it would not be appropriate to take as a starting point anything less than ten years. That is but 40% of the statutory maximum. I am not persuaded however that it should be more.
30 In arriving at that figure I have, of course, taken into account the subjective features referred to above other than the prisoner's plea and offer of assistance. It also reflects my consideration over the years of numerous sentences imposed in other cases. It also falls within the range of starting points apparent in five cases to which I was referred by the parties and summaries of which I have annexed to these reasons.
31 I acknowledge that it is higher than the starting point in some of those decisions, but sentencing is not so precise that all Judges will arrive at the same conclusion. It may be that in some of those cases I would have imposed a somewhat heavier sentence. There are of course differences between the circumstances of the prisoner and those of the offenders in those other cases.
32 I should say also that I have reflected on the result of the combination of the ten-year period and the discount I have selected as sentencing principles and section 23(3) of the Crimes (Sentencing Procedure) Act require.
33 This is the prisoner's first time in custody and he is relatively young. I do not regard him as needing an extended period on parole, but I do think the circumstances justify a finding of special circumstances.
34 Mr Charman, would you stand up, please. I sentence you to imprisonment for a non-parole period of four years dating from 17 April 2006, together with a further term of two years dating from 17 April 2010.
35 People at the Bar table, are there any matters that I have neglected to deal with?
36 SMITH: No, your Honour.
37 HALPIN: No, your Honour.
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APPENDIX
38 In R v Sandnes [2001] NSWCCA 385, the offender and his girlfriend had entered the house of the latter's grandmother to steal money with which to buy drugs. The grandmother was home. A struggle ensued and the offender struck the grandmother twice to the head with a half brick he had taken into the house, presumably to use as a weapon. Dunford J sentenced the offender to imprisonment for a total term of 11 years with a non-parole period of 8½ years, periods which reflected discounts of respectively 1 year and 6 months for the offender's plea. The Court of Criminal Appeal regarded the sentence as towards the top, perhaps the very top, of a permissible range but nonetheless declined to intervene.
39 In R v Stelfox [2002] NSWCCA 331, the offender had been sentenced to imprisonment for a total term of 5 years including a non-parole period of 2½ years. Prior to arriving at these periods the sentencing judge had allowed a discount of 45% for the offender's plea, his contrition, an offer of assistance and the fact he would spend much of his sentence on protection. The starting point used was thus about 9 years. A co-offender had shot the victim. The Applicant learned on the way to the area the victim was believed to be that the co-offender had in his possession a gun. He also subsequently armed himself with a broom handle that, during the course of a melee, was used to strike the victim. The Court of Criminal Appeal dismissed an appeal against sentence.
40 In R v Hampton [2004] NSWSC 1215, the offender was sentenced by Bell J in respect of two offences, one of them manslaughter. On that charge the sentence imposed was for a total term of 6 years and 4 months including a non-parole period of three years and four months, a discount of 20% having been allowed for the offender's plea. Her Honour's starting point must thus have been about 8 years. The offender had been part of a group that entered a house with the intent of assaulting an occupier who, during the course of events was killed. The offender was aged 18 at the time of the offence. There was evidence in this case of a substantially disadvantaged background and the involvement of alcohol which the offender had commenced drinking when he was 12, not long after his father dies.
41 In R v VDN [2004] NSWSC 426, the offender was sentenced by Whealy J to imprisonment for 6 years and 9 months including a non-parole period of 3 years imprisonment with a balance of term of 3 years, discount of 15% having been allowed for the offender's plea. The offence was manslaughter. The starting point must thus have been approximately 8 years. He took part in an armed robbery with knowledge that a knife was to be presented, an event which would be an unlawful and dangerous act. A knife was presented and caused the death of the victim. At the time of the offence VDN was aged 17 years and 7 months. He had a small criminal history but the judge described his subjective case as strong.
42 In R v Hung Duc Dang [2001] NSWCCA 321, the sentence imposed for manslaughter was of imprisonment for 7½ years including a non-parole period of 4 years. It was cumulative to another sentence of 2½ years. The circumstances of the offence were, for present purposes, materially similar to those in R v VDN. The offender was 18 or 19 at the time of the offence. He came from a good background and had a supportive family. He had no criminal record, had expressed remorse, although he was assessed as having limited insight.
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