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[2007] NSWSC 452
Supreme Court of NSW
2007-05-09
Adams J, Mr J
Original judgment source is linked above.
Introduction 1 On 5 February 2007 Richard Hamilton pleaded not guilty to the murder on 22 January 2005 of Johnson Fernandes but guilty of his manslaughter. Mark Sandilands also pleaded not guilty to the murder of Johnson Fernandes but, in his case, pleaded guilty to being an accessory after the fact to his manslaughter. In each case the Crown accepted the pleas of guilty in full discharge of the indictment. These pleas were the result of negotiations that commenced at an early stage. It is not necessary to set them out: the facts are not contentious. The Crown Prosecutor conceded that the pleas had been entered at the earliest practicable time. 2 Following the guilty pleas, proceedings were adjourned to 13 April 2007 for evidence and submissions on sentence. After receiving evidence and hearing submissions on that day, I considered that it was appropriate to grant bail to Sandilands pending sentence. The reason that I came to this opinion will be evident from what follows. 3 It was agreed by the Crown that the basis for the manslaughter plea and its acceptance in discharge of the indictment was that Hamilton killed the deceased in an act of what is conventionally called excessive self-defence. The maximum penalty for manslaughter is twenty-five years' imprisonment but, as has frequently been said, sentences for manslaughter vary widely because the circumstances in which the crime occurs and the culpability of offenders vary widely. The offence of being an accessory after the fact to manslaughter carries a maximum penalty of five years imprisonment. 4 Hamilton has been in custody solely relating to the present offence since his arrest on 17 February 2005. Sandilands was also arrested on 17 February 2005 and was in custody on remand when he was sentenced at the Burwood Local Court on 12 July 2006 for two offences of breaking entering and stealing in respect of which was imposed an effective sentence of twelve months with a non-parole period of six months to commence on 24 May 2006 and expire on 23 November 2006. It follows that he has spent about nineteen months in custody in respect of the present offence. Facts 5 The following narrative is largely taken from the agreed statement of facts and Hamilton's record of interview that were tendered in evidence. The deceased Johnson Fernandes was just over thirty years of age when he was killed. He was born in India and moved to Australia with his family in 1991. By the mid 1990s, unfortunately, he had developed a drug habit. He had told a number of people that he had been assaulted, including by way of a stabbing, in the context of his involvement with drugs and he was known to carry a knife. From the early 2000s the deceased became friendly with Sandilands and from early 2004 stayed over from time to time at the Sandilands' house in West Ryde. On these occasions he would sleep in Sandilands' room and Sandilands would sleep on a couch in the lounge room. Hamilton was a long-standing friend of Sandilands and visited his house from time to time. It was during one of these visits that he met the deceased and they became friends. 6 Although the deceased was killed on 22 January 2005, his body was not found until the early morning of 2 February 2005, when maintenance workers at the Ryde Parramatta Golf Club found a partially clothed body in a creek running through the golf course. The deceased's body was identified by fingerprints and tattoos. The pathologist, Dr Botterill, was of the opinion that the deceased's body had been in the water for some days. A post mortem examination revealed the cause of death as "stab wounds to the chest". A number of other injuries to the deceased were noted by Dr Botterill on autopsy. Of these, the most significant appear to be a 29mm stab wound to the neck which perforated the right jugular, a 45mm stab wound which passed between the first and second ribs, perforating the innominate vein (side of neck), the left pleural cavity and upper lobe of the left lung and a 40mm long stab wound which passed between the third and fourth ribs, perforating the innominate vein (side of neck), the left pleural cavity and upper lobe of the left lung, a ragged stab wound over the left angle of the lower jawbone which entered the left side of the neck and perforated the left side of the trachea with a minimum wound depth of 85mm. There were other stab wounds to the left shoulder and arm and wounds, abrasions and bruising elsewhere. The Crown Prosecutor conceded that that these injuries were consistent with the account given by Hamilton of the struggle (which I set out below), during which he claimed the wounds were inflicted, and the moving of the body after death. 7 Toxicology examinations suggested that the deceased had been drinking before his death although decompositional change may have contributed to the alcohol level detected. Screening for drugs also suggested that he had been using cannabis at some stage before his death. I am satisfied, however, that the deceased had ingested other drugs relatively shortly before he died, probably amphetamines. 8 Police interviewed Sandilands on 3 February 2005, the day following discovery of the deceased's body. He provided a statement to police in which he said that he knew the deceased and they sometimes used drugs together and claimed that the last time he had seen the deceased was about two weeks before his body was found. On 5 February 2005 police executed a search warrant at Sandilands' house and discovered evidence linking Sandilands with the deceased's death. Sandilands was interviewed again. He said that he did not kill the deceased and did not know who did. On the following day, 6 February, police recorded a conversation between the two offenders at Sandilands' house in which Hamilton admitted killing the deceased. On 14 February Hamilton provided a written statement to police saying that he was a friend of Sandilands and knew the deceased from seeing him at the Sandilands' house. He said that the last time he had seen the deceased was on 14 or 15 January 2005 and that when he went there a week later the deceased was not there. On 16 February 2005 police recorded a conversation between Sandilands and another person during which Sandilands said, in effect, that the deceased was killed with a knife by Hamilton and that they carried the body through the golf course to get rid of it. 9 On 17 February, Sandilands was arrested when he boarded a bus bound for Melbourne. He took part in a recorded interview in which he told police that he did not kill the deceased but had assisted another person to dispose of the body. Hamilton was arrested on the same day and was also interviewed but denied killing the deceased. On 15 November 2005 Sandilands was further interviewed. He said that on the night of 21/22 January 2005 the deceased was staying at his house and that late in the evening he started to make threats to kill various people and then himself. Sandilands said that he became concerned and telephoned Hamilton to come down and help. Hamilton came to the house and spoke with Sandilands outside. Sandilands told police that Hamilton went inside the house whilst he remained outside and about fifteen minutes later he heard sounds consistent with fighting coming from the house. He said that he ran inside to find the deceased lying on the floor of his bedroom. Hamilton told him to grab a towel to try to stop the bleeding from the deceased's neck. Sandilands said that he got a towel and came back but by that time the deceased was dead. He saw Hamilton with a knife with a blade about 15 to 20cm long. Sandilands told police that he cleaned the room by pulling the carpet up, sanding the floor and painting some of the walls. He purchased a sander for that purpose. He said to police that he had arranged for rubbish to be removed from the house, which included the bloodstained carpet from his room. He then told police that he and Hamilton later disposed of the body in the park. 10 On 5 December 2005 Hamilton was interviewed by police once more and admitted killing the deceased. He told police that, on Saturday 15 January 2005, he had allowed the deceased to stay at his house on condition that he did not bring his dog with him and that Sandilands had asked him to take the deceased for the night as he had been staying with him (Sandilands) and he needed a break. Whilst at Hamilton's house the deceased noticed a knife which he offered to buy. Hamilton declined to sell it to him. Hamilton said that, unknown to him, the deceased took the knife and this was the knife which later caused the injuries to the deceased. About a week later Hamilton received a telephone call from the deceased who, on this occasion, wanted to purchase his DVD player. There was a heated discussion and he hung up on the deceased. Later that evening at about 9:30pm Hamilton received a telephone call from Sandilands stating that the deceased was "going off" and, in effect, seeking help. Hamilton told him that he was too busy and that he had to sort it out himself. Sandilands said that he would ring back. Hamilton was in bed at home when he received another telephone call from Sandilands just after midnight asking if he could come down, repeating that the deceased was "going off" and saying that he was scared. 11 Hamilton caught a cab to Sandilands' house. He said that he had a few drinks before he went to the house but he had not taken any drugs. When he arrived, Sandilands was sitting on the front door step with a chain wrapped around his hand and holding a knife. He could hear the deceased swearing at himself. 12 Hamilton said that Sandilands had told him that the deceased had threatened to bash Hamilton and that he thought the deceased wanted to kill Hamilton. Hamilton brushed these threats aside as not serious. He went into the house. He heard the deceased saying, "I'm going to kill that little cunt fucking…setting me up, bringing Richard down here. I'm going to kill that cunt, I'm going to kill his whole family, I'll kill Richard too, I'll kill his whole family. I don't give a fuck" and "just going on", but Hamilton said that he thought that it was just drug talk and he did not take it all that seriously because he knew that the deceased was on drugs. Hamilton was in the hallway at this time and the deceased was in Sandilands' bedroom. Hamilton said that the deceased went on with this kind of talk for well over an hour and that he went in eventually after he heard the deceased getting dressed and sounding like he was ready to go. Hamilton opened the door slowly and went into the room asking what was going on. It was then that the deceased pulled out the knife and then carried on irrationally blaming Hamilton for having taken his dog away. Hamilton grabbed his arm and attempted to induce the deceased to give up the knife. He tried to calm him down and negotiate but the deceased was not to be reasoned with. They struggled over the knife. At one point, the deceased was stabbed in the cheek but he did not seem to notice. Hamilton said, "It was like he felt no pain or anything, it was you couldn't negotiate with him". Hamilton said that, during the struggle, he started to get blurred vision and was starting to sweat and almost fainted and that was when he started pushing the knife towards the deceased. He said that he felt that he had no choice but to hit him in the neck when the deceased had hold of his finger and was attempting to break it. He was asked whether the deceased was still struggling after he stabbed him in the neck and answered - "I, I think after the second one he sort of was. He, he wasn't struggling but he was still holding onto it and then I done it again because, fucking when you try to break this I, I was saying, fuck, this cunts fucking kidding himself. Like, I was, I was, the pain with you you wouldn't believe. I was then going fucking, a lot of pain and so I just felt that I had no choice. I thought that it was going to be either him or me, you know didn't have much of a choice but maybe he's, I don't know if I used excessive force or not but considering the fact I broke my finger, I don't know if I did." 13 He did not see the knife after he stabbed him in the neck but could feel that it hit him again as he fell over the deceased. I think that two of the wounds described by Hamilton as being in the neck were those described by the pathologist as having entered the chest cavity. One blow to the chest was, I think, accidental. Hamilton said that after what he described as stab wounds to the neck the deceased had stopped struggling but he was still holding onto the knife. It appears that it was after the fall which I have mentioned that Sandilands ran in. He told Sandilands to grab a towel and then he saw the deceased's eyes roll back. 14 The following extract from Hamilton's record of interview, which I have not edited, gives the flavour of Hamilton's account. To my mind it is significant that he does not appear to exaggerate the actions of the deceased. "And then I'm sort of, as I'm trying to get the knife off him, I said, 'Come on, man, fucking don't be stupid. Fucking give us the knife', and then he's trying to pull away and then he's just fucking, I've just grabbed the knife and just gone fucking, bang, straight in his cheek and I said, well, fuck, I could see blood coming out. And, it was like he did not feel it and, and, and then I said, I just said, 'Oh, I'm sorry, I'm sorry Johnny I'm sorry. Come on man, please, please don't, don't do this to me, bro, please', and like, I could see blood coming down his face, like there was a fair bit of blood coming down, too. I thought, shit, I'd, I'd call, if he had of left I'd have called a cab, drive him up to hospital, would have only cost about, I don't know, probably 6 or $8. It's not that far, it's not that expensive. I had the money on me. I probably wouldn't have called the ambulance but I would, would have called a cab, you know. But anyway, like, I just said sorry and I said, 'Come on, man, don't be fucking stupid'. He said, 'Fucking, where's my dog, where's my dog?', and he's still going, like, his dog was what maybe flipped it. I said, 'Your fucking dog is all right, man. Come on don't be fucking stupid', and then it just got into a, a thing and both our hands were getting, like, sweaty, like, sweat all over our hands, like, both of us were sweating like a pig, you know, and then I, I managed to get, like, in a position where, well, after. After that he, he started trying to rip my fingers off and he done it with his thumb and then this finger and then this finger and then this, this one got really badly bruised at one stage and this one and then he tried to, like, he was chopping and changing hands and, it got down to a stage where, like, with, even with a knife, like, one of his hands, I started lashing out at one of his hands, like trying to cut him……on the hands. I would have cut his hand off if I had to, if I had to get the knife off him. I don't care, I was going to get that knife off him sooner and later and, and it was like he felt no pain or anything, it was you couldn't negotiate with him. I did everything I possibly could to negotiate with him and then, and then, like, he tried to really rip this one, rip this finger, like, I don't know, and this got caught under the knife and the knife was digging into my finger as the, the mark there and now it looks like a bit of a Billy Bowden finger now. And, and when he did that I've just gone, 'oh', couldn't handle it any longer. You know, I just fucking, I pushed the knife, I actually, I actually didn't mean to do it but see, in, in the initial struggle, like, like if I wanted to I. I didn't want to get him stabbed in the gut or anything because that's the main torso area sort of thing and it's dangerous for to get stabbed there, sort of thing, so I'd sort kept away from there and sort of lashed out at his hands a bit because he was sort of fucking getting better grips with his other hands and that, and because both our hands were pretty sweaty after this and anyway, I, I, as, like, I ended up at, at that critical, that moment when he'd tried to break this one, like fully trying to break it, that's when I went, 'ah', and just rammed it in his neck. I went, 'Fuck off, fuck off, fuck off', like three times and then, then I nearly fell over him and, and I just fucking, didn't I could feel like, I didn't see it but I could feel the knife hit him somehwere here as well, which fucking was acccident, you know, and then Mark's came, Mark come running in, like, when he heard." 15 Hamilton said that, following the death of the deceased, he wanted the police to be called but Sandilands did not want this as he was frightened of going to gaol. Hamilton believed that the knife used was thrown in the bin by Sandilands. He told police that, following the incident, the two of them placed the deceased in a suitcase and he was left in Sandilands' bedroom, Hamilton leaving at about 7:30 and telling Sandilands to clean up the mess. The following evening Hamilton returned to Sandilands' house and, on the following night, the two men took the deceased's body through the golf course and left it in the pond. 16 Sandilands gave evidence before me. I thought he was a candid witness. He said that, on the day of the offence the deceased had come to his house and the two of them were using drugs together. He went on - "Johnson starts saying, like, all things like he wanted me to help him go kill Nathan, his ex-girlfriend's new boyfriend and yeah - kidnap his daughter and he was just talking all this crazy talk. We were both using amphetamines, prescription pills and he had been drinking alcohol on this night and he starts saying all these things and I got really concerned and I ended up calling Richard and I said, I'm scared, I think Johnson is going to do something stupid, can you come down just in case. Richard was hesitant to come down and then a couple of hours passed and Johnson was still carrying on and I was telling him, I don't want any involvement and he now starts turning against me, I am a traitor, not his friend, and if I were his friend I would help him and I called Richard back again at about 12.00 and said to him - I have called Richard again at about 12.00 at night and I was telling Richard, I am really concerned, you know, come down. So Richard realised that I was quite worried and he comes down and, you know, I was outside with Richard and I have explained everything what Johnson was saying and I am telling him I am worried. Richard goes, well look, I will go have a chat with him and ask him to leave and I said, all right, fair enough.
Richard has gone in and had a chat with him - maybe ten, fifteen minutes pass and then I hear a fight break out and I have come running from the front of my house going through the back door, running around the front yard into the back, through the house and I have come into the room and Johnson was lying on the floor bleeding he was and Richard goes, quick grab a towel to try and stop the bleeding and I have run out and grabbed a towel and I have gone back and Johnson was dead…" 17 Sandilands said that he "helped Richard cover it up because I didn't want him to go to gaol". 18 I should mention here that the Crown accepts that I should sentence the offenders upon the basis that the statements made by Sandilands and Hamilton in particular as to what occurred are factual. I am satisfied that, in the circumstances, this is an appropriate course.
Criminal History 19 Hamilton has a lengthy criminal history dating back to the Children's Court in 1987, his last conviction being in March 2005 for possessing a prohibited drug. His convictions include stealing, malicious damage, breaking entering and stealing, possessing implements to enter a conveyance, fraud, driving offences and self administration of a prohibited drug. However, significantly, he has no convictions for violence. 20 Sandilands also has a criminal history dating back to the Children's Court in 1988 including robbery in company which, however, (judging from the sentencing outcome) does not seem to have been a serious case of its kind. In 2000 he was convicted of demanding money with menaces with intent to steal but (again, judging by the outcome) this seems not to be a serious case of its kind. As I have already mentioned, on 12 July 2006 Sandilands was convicted of two offences of breaking entering and stealing for which he received an effective sentence of twelve months' imprisonment with a non-parole period of six months.
Subjective Features 21 At the time of the offences, Hamilton was aged thirty-four and Sandilands was aged twenty-two years. 22 A pre-sentence report in respect of Hamilton was tendered. That report noted that he had been known to the Probation and Parole Service since 1990, and had completed a variety of orders including community service orders and participated in rehabilitation programs both in custody and in the community. The report said that Hamilton had complied with the requirements of his supervision and had participated to the best of his ability in group programs which appear to have been of benefit to him. He was last supervised on both probation and parole for a period ending on 17 January 2005, reporting reliably for the most part and maintaining stable employment and accommodation with his parents. The report said that contact with his family by the supervising officer revealed no evidence of ongoing drug or alcohol issues. The report discloses that Hamilton's childhood and teenage years were unstable and he was assessed from early childhood as having learning difficulties. It appears that he may have suffered anoxic brain damage during birth. His learning difficulties, combined with behavioural problems marred his education and he was expelled from mainstream schooling before being placed in a residential school for the mildly intellectually impaired. It seems that he attained Year 9 level of education, leaving school at the age of fifteen. The report says that psychological testing showed that Mr Hamilton had a borderline level of functioning. At the same time, it appears that Hamilton has held a number of full time positions of employment since leaving school, the longest being nine and a half years as a process worker for a wire products firm. He was last employed between October 2003 and February 2005 as a factory hand. His employer was interviewed by the Probation and Parole Service and indicated that Hamilton was highly regarded as an enthusiastic, hard working and reliable worker. 23 Hamilton described the offence to the Probation and Parole Officer as a "tragic accident", stating in substance that he was defending himself from an attack by the deceased with a knife. The applicant expressed remorse for having killed the deceased, whom he had known for many years. 24 Hamilton told the officer that he had used cannabis extensively since his mid to late teens and occasionally used amphetamines but, as I understand it, he has not had a problem with drugs for some time. A report from Dr Westmore was also tendered on Hamilton's behalf. Hamilton's account to Dr Westmore broadly speaking follows the line of his interview with the police, in particular as to the deceased's irrational behaviour. His personal history was not significantly different from that contained in the probation and parole report. Dr Westmore noted that Hamilton spontaneously said that he felt very sorry for the deceased man, saying that he was not aware that Johnson had so many problems. The principal purpose of Dr Westmore's report was to ascertain whether Hamilton was fit to plead and, not surprisingly, Dr Westmore thought that he was. The mental state examination did not demonstrate any unusual features. Some questions were raised by the various axes of psychiatric diagnosis but I do not think that these are relevant for present purposes. 25 A pre-sentence report was tendered by the Crown in relation to Sandilands. It seems that he had a rather troubled childhood, becoming difficult to manage during his teenage years when he associated with people his mother described as "the wrong crowd". He came into contact with the police and the juvenile justice system. Sandilands completed Year 7 at high school but experienced learning difficulties and had only limited success at special schools which he attended. He has limited literacy and numeracy skills. He has been employed from time to time but has been unemployed for substantial periods. It appears that this offender has had a serious alcohol problem during his mid teens but claims to have stopped consuming alcohol at the age of seventeen. However, he has acknowledged a lengthy history of illicit drug addiction having commenced smoking cannabis on a daily basis at the age of thirteen; from the age of fifteen he began using amphetamines. Although he reduced his intake considerably for a short period when he was eighteen he was using either speed or ice daily at the time of the offence. He has also taken heroin. It appears that Sandilands now enjoys a close and supportive relationship with his parents who remained supportive of him while he has been in custody. 26 Sandilands said that at the time of removing the body he was affected by amphetamines. He said that he realises now that it was a mistake and that he should have just come forward and told the police everything that happened. Although there was some suggestion in a question put to him by his counsel that he acted at Hamilton's instigation he did not give evidence to this effect. I am satisfied that what he said about this was true, namely he was concerned about Hamilton being unfairly punished but also he was concerned about the possibility that he might be implicated in the deceased death. As is clear from what I have already said about what occurred, he took significant steps to attempt to remove evidence from the bedroom of any assault and, of course, the removal of the body was designed to stop him and Hamilton from being implicated. 27 I have briefly referred to Sandilands' criminal antecedents, which include a conviction for robbery in company for which he was charged when he was just over sixteen years of age. It is important to note, however, that the offence for which he is presently being dealt with involved no violence on his part. There is no reason to suppose that he might commit such an offence or a similar offence in the future. 28 Whilst on remand Sandilands commenced the self-management and recovery training (SMART) program that concerned, amongst other things, drug and alcohol abuse, which he feels has been of benefit and I think it probably has. It is clear that this offender has continuing issues that need to be addressed so far as drugs are concerned. Indeed, I have been informed that, whilst on bail, a positive result for amphetamines was obtained on screening and he is, accordingly, in breach of his bail undertaking not to use prohibited drugs. At the same time, it is important to bear in mind that I am not sentencing him for any offence other than that for which he has pleaded guilty before me. Furthermore, the use of a prohibited drug, of itself, will very rarely involve a gaol sentence though of course it must be recognized that users of drugs such as amphetamines often commit other crimes, either to finance their habit or because of the effect of the drug on their judgment and self-control.
Discussion 29 In R v Blacklidge (unreported NSWCCA 12 December 1995) Gleeson CJ, with whom the other members of the Court agreed, said - "The crime of manslaughter comprehends all forms of punishable homicide other than murder…For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as 'involuntary', do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, cause death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for rmanslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any estabished sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." 30 In The Queen v Lavender [2005] HCA 37 Glesson CJ, McHugh, Gummow and Hayne JJ said - "[22] The circumstance that at all material times the legislation as to homicide has expressly recognised [in section 24 of the Crimes Act 1900] that, in a case of manslaughter, a nominal punishment only may be sufficient, is consistent with the common law position that malice is not a necessary element of manslaughter. For more than a hundred years, judges in all Australian jurisdictions, and in England, have observed that, of all serious offences, manslaughter attracts the widest range of possible sentences. The culpability of a person convicted of manslaughter may fall just short of that of a person guilty of murder or, as s 24 recognises, it may be such that a nominal penalty would suffice." 31 I should say at the outset that this is not a case where a nominal penalty would suffice. The starting point must be the seriousness with which the law regards all unlawful taking of human life. Objectively speaking, all unjustifiable killing must be regarded as serious and in only the most exceptional circumstances will a nominal punishment be appropriate. In this case, by his plea in the present circumstances, Hamilton has in effect admitted that he killed the deceased where it was not, as an objective fact, justifiable for him to have used that degree of force. At the same time, it is clear that Hamilton himself believed that it was necessary to do what he did in order to defend himself from what he genuinely and with good reason believed was the threat of an extremely dangerous attack upon him by a man who appeared to be beyond reason. 32 In circumstances where there is a genuine belief that the acts of violence committed by an offender are necessary in self defence, even though, objectively speaking, they were more violent than was reasonably called for, the moral culpability involved places the crime well and truly in the lower range of seriousness. This is very far from a case for example, of gravely reckless driving resulting in the death of an innocent pedestrian or other user of the road. Hamilton did not, I accept, intend to use any violence at all but wished merely to reason with the deceased in an attempt to calm him down. He found himself in a frightening situation that was beyond his control because of the deceased's irrationality which was very likely drug induced. I do not doubt that it was a terrifying experience; it was not an occasion for calm detachment. It was not he who brought the knife into the situation but the deceased and it was the deceased who produced it where to do so was completely unjustified and where there was a real threat to Hamilton's life and limb. 33 There can be little doubt that, in the circumstances that faced him, Hamilton was entirely justified in using a very considerable degree of force, even potentially lethal force, to defend himself. It would seem, however, that a single blow to the neck would have been sufficient for this purpose. But, as I have mentioned, two further very injurious blows were inflicted to the neck and chest. All three were inflicted in quick succession. Hamilton by his plea, in substance, concedes that it was unnecessary as a matter of objective reasonableness for him to use this extent of force resulting in the deceased's death. 34 So far as the aggravating factors as set out in s21A(2) of the Crimes (Sentencing Procedure) Act 1999 are concerned, although the offence involved the actual use of a weapon, it was a weapon produced by the deceased and used by the offender only in self-defence, albeit it with excessive force in the circumstances; the offender has a record of previous convictions but not for violence; and I am quite sure that, in his confrontation with the deceased, he acted solely in response to the threat posed by the irrational behaviour of the deceased. As far as mitigating factors are concerned as mentioned in s21A(3), the offence was not part of any planned or organised criminal activity, the offender was provoked by the victim and I think he has good prospects of rehabilitation and has shown remorse. 35 It is an aggravating feature of the offence that the offender attempted to cover up his involvement in the killing of the deceased. I accept that this was principally at the behest of Sandilands who was worried that he and also in all probability Hamilton would be charged with murder, a crime which was not committed. 36 Hamilton has expressed remorse on a number of occasions. It was not submitted by the prosecutor that I should not accept those expressions as genuine. Hamilton's criminal record does not stand him in good stead. On the other hand the Probation and Parole Service report shows he has responded well to supervision in the past. It should be noted as well that the Crown case depends in large part upon what the offender himself told the police in his record of interview. 37 Hamilton has spent some two years and three months in custody on remand in respect of this offence. Remand custody is spent in maximum security in conditions significantly harsher than would have applied to him had he served that period by way of a sentence. Consequently, the allowance to be made for this period of gaol should be more than merely day for day. Having regard to his history, I think it is desirable that, on his release, a longer than usual time for supervision ought to be available to assist in his continued rehabilitation. In my view, an appropriate non-parole period, after allowing a twenty-five percent discount for the utilitarian value of the plea and special circumstances justifying a variation in the ratio provided by s44 of the Crimes (Sentencing Procedure) Act 1999 is a term of two years and six months with a balance of term of three years. The sentence is back-dated to commence on 17 February 2005. The offender is eligible to be considered for release on parole on expiration of the non-parole period on 16 August 2007. 38 The offence committed by the offender Sandilands is not a trivial one. The aggravating features are that he assisted in covering up a serious crime involving an unjustifiable homicide. However, I think at the time he believed Hamilton had acted in self-defence and hence had not committed any crime at all. Generally speaking, offences of this kind that are undertaken for reward would be regarded very seriously but this is not the situation here. On the other hand, Sandilands was frightened that he might be suspected of a crime of which he believed he might wrongly be blamed. It was a decision made after some consideration but without any real opportunity for reflection, though two days passed before it was put into effect. Sandilands was no youth but he was not a mature adult and was faced with a frightening and, indeed, overwhelming situation. 39 This is not in the most serious category of offences of its kind and, accordingly, a starting point of five years, which is the maximum fixed for the offence, is not appropriate. If one considered that an appropriate overall sentence was three years, applying the utilitarian discount would reduce that sentence to one of two years and three months, which would imply a non-parole period of one year and something over eight months on the assumption that there were no special circumstances warranting a variation of the statutory ratio. 40 I have been referred to a number of decisions of this Court dealing with accessory after the fact to manslaughter. The three cases that have been cited do not indicate any range. However, in two cases not markedly dissimilar from the present, terms of imprisonment to be served by way of periodic detention were imposed whilst in the third of the cases, in my view a significantly more serious case than this, a sentence of two years' imprisonment with a nineteen month non-parole period was imposed. 41 If this case were not complicated by the period that the offender has already spent in custody on remand, I would have imposed an overall sentence of two and a half years' imprisonment with a one-year non-parole period. The special circumstance is that he is in need of a longer term of supervision than the statutory ratio would provide. He has already served, however, close to one year and nine months in custody. 42 The reason that I thought it appropriate to grant Sandilands bail when this matter came before me on 13 April 2007 was, essentially, that the non-parole period which I would have imposed (in the absence of his imprisonment whilst on remand) would have been significantly less than the period he has already served on remand. The sentence that I impose requires the offender to spend additional time on parole. I am fortified in the correctness of this outcome by his breach of the bail undertaking. I should add that, although the resulting effective sentence is greater than that which I would have imposed had there been a shorter period on remand, I consider that the sentence is within the available discretionary range, though at the very top of that range. 43 In my view, in all the circumstances, the appropriate sentence is a non-parole period commencing on 17 February 2005 and ending on 13 April 2007. The appropriate balance of term that he should spend under supervision whilst on parole commenced on 14 April 2007 and ends on 16 February 2008. In accordance with s50 of the Crimes (Sentencing Procedure) Act 1999, I order his immediate release on parole. **********
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CITATION : R v Hamilton; R v Sandilands [2007] NSWSC 452
CASES CITED : R v Blacklidge (unreported NSWCCA 12 December 1995) The Queen v Lavender [2005] HCA 37