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 3-4)
51 So far as each of the offenders is concerned, it is appropriate to have regard to the fact that the offence was committed in company: Crimes (Sentencing Procedure) Act, s 21A(2)(e). That is an important feature of the offence, for it seems inevitable that the victim would have been fearful and would have felt helpless in the face of an attack of the present kind. Nevertheless, it is necessary to have due regard to the fact that the liability of each offender arose precisely because his act or acts occurred as a result of his being in company with others, ie pursuant to a joint criminal enterprise. The offence also apparently involved the use of an item or items which could constitute a weapon or weapons: s 21A(2)(c). However, as I earlier observed the use to which that item or items was put during the attack, and the identity of the person who struck the fatal blow, is far from clear. Nor does the evidence disclose, so far as the adult offenders are concerned, the circumstances in which they acquired those items. In any event, the use of such an item in the context of a homicide is not of any great moment. To that list may be added, but only so far as the offender Bugmy is concerned, the fact that he has prior convictions and that he was on conditional liberty at the time: s 21A(2)(d) and (j).
52 The prior criminal history of the offender Bugmy can be properly characterized as demonstrating a "continuing attitude of disobedience to the law" or as revealing "the moral culpability of the offender", in the sense in which those expressions were used by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. That said, I remind myself that I must approach this aspect of the matter in the manner in which it has been interpreted in a line of cases including R v Wickham [2004] NSWCCA 193 and R v Blair (2005) 152 A Crim R 462.
53 In relation to mitigating factors within the meaning of s 21A(3), I am prepared to find that the offence was not "part of a planned or organised criminal activity": s 21A(3)(b). With the exception of the offender Bugmy, none of the other offenders has a record (or any significant record) of previous convictions: s 21A(3)(e). Each of the offenders, apart from the offender Bugmy is entitled to be regarded as "a person of good character": s 21A(3)(f). This is especially so in the case of CJ and it is to his credit that he should be so regarded, given his deprived background.
54 I am satisfied that each of the offenders, apart from the offender Bugmy has "good prospects of rehabilitation" and is unlikely to re-offend: s 21A(3)(g) and (h). Although the offender Bugmy's prospects on the other hand appear somewhat dim, I am not prepared to conclude, given his plea of guilty and his age that they are non-existent, especially if he is prepared to address issues surrounding his dependency upon alcohol. Each offender is entitled to have his plea of guilty taken into account: s 21A(3)(k). I shall consider the significance of that matter shortly in a little more detail. The offender CJ in particular is also entitled to have weighed in his favour the fact that he has expressed remorse: s 21A(3)(i). I note that the offender King has expressed sympathy and that he has also experienced a sense of loss arising from the victim's death. That cannot however be equated with the type of remorse which the offender CJ has demonstrated.
55 CJ is also entitled to have his youth taken into account: s 21A(3)(j). I will return to consider that matter in a little more detail in due course. Each offender is entitled to some consideration in light of the principles set out in R v Fernando (1992) 76 A Crim R 58 at 62-3.
56 Furthermore, in view of the evidence from Dr Lennings that the offender CJ falls into the "mentally retarded range" so far as his intellectual functioning is concerned, it is appropriate to give less weight to the principle of general deterrence than would otherwise be the case. That being so, I am prepared to find that the offender CJ was not "fully aware of the consequences of his actions" by reason of his impaired mental functioning at the time of the offence: Crimes (Sentencing Procedure) Act, s 21A(3)(j). See also R v Engert (1995) 84 A Crim R 67.
57 In assessing the appropriate discount to be extended to the offenders for their pleas of guilty, I have had regard to what was said by the Court of Criminal Appeal in R v Thomson & Houlton (2000) 49 NSWLR 383. Spigelman CJ (with whom the rest of the Court agreed) said that:
In my opinion, the appropriate range for a discount is from 10-25 per cent.
There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial,
unless there are particular benefits arising from the prospective length and complexity of the trial.
Rare cases involving exceptional complexity and trial duration may justify a higher discount. (pars 152 - 156)
58 Earlier his Honour observed:
Furthermore the plea is, of itself, equivocal with respect to remorse. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case a plea does not indicate genuine remorse or contrition. …
The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing
judge, then the diminution of sentence is given for contrition, not for the plea of guilty. …
As noted above, a factor identified as a benefit from a plea of guilty is the avoidance of the need for witnesses to give evidence, particularly victims and their families and, especially, sexual assault victims. In Siganto (at 664 [23]), the High Court regarded such benefits as relevant to the aspect of remorse.
…
Like the element of remorse, this consideration depends on the specific circumstances of the offence and overlaps to a substantial extent with other aspects of the specific case which are relevant to the sentencing task.
These conclusions are reinforced by consideration of the "instinctive synthesis" approach to the sentencing process which has generally been accepted as the appropriate approach. The aspects of the guilty plea that go to remorse and witness vulnerability are much more closely associated with other
factors concerning the circumstances of the offender and of the offence, including other evidence relating to contrition, than the element of advantage to the administration of criminal justice. The public interest served by encouraging pleas of guilty for their utilitarian value is a distinct interest (pars 117-119, 121-122).
59 I referred earlier to the fact that the offenders entered pleas several weeks into their trial. Clearly then they could not be described as early pleas. Nevertheless, I was informed that the offenders entered their pleas immediately upon being informed, for the first time, that the Crown was prepared to accept them. I intend no criticism of the Crown in making that observation. In some trials, of which this may have been a prime example, the Crown's view about the strength or otherwise of its case can only be gleaned once the trial proceedings have been underway for some period of time. In the circumstances, it is common ground that the pleas of guilty were entered at the first reasonable opportunity available to the offenders. In arriving at that conclusion, it is appropriate to observe that the Crown originally saw fit to proceed with a charge of murder against the three present offenders notwithstanding its decision to proceed only with a charge of manslaughter against the other four accused. Nevertheless, in considering the significance of the conclusion that the pleas were entered at the first reasonable opportunity I have had regard to what was said by the Court of Criminal Appeal in R v Dib [2003] NSWCCA 117 and R v Harmouche [2005] NSWCCA 398.
60 I was also informed that had the trial continued, it would have occupied an estimated further 12 weeks of hearing time. That may be a rather conservative estimate given the time which had been consumed taking the evidence of the witnesses who had given evidence at the time when the pleas were entered, and also given the large number of witnesses who were still to give evidence. Nor should it be overlooked that each of the then accused was separately represented. The critical witnesses who had been called had been closely cross-examined by most, if not all counsel. Moreover, a number of legal arguments had been foreshadowed. Finally, on this aspect of the matter, the addresses and summing-up would, it seems, have occupied at least a couple of weeks' court time.
61 As I understand the situation, the Crown case depended for its proof upon eyewitness accounts of the incident. There was, for example, no forensic evidence which linked any of the offenders with the incident and nor, with the exception of CJ, did any of them make any statement to police which could be relied upon as an admission of their involvement in it.
62 The entering of the pleas obviated the need for a very large number of other civilian witnesses having to be transported to Sydney from the Wilcannia area to give evidence. Several of those prospective witnesses, whom it was anticipated would have been in a position to give eyewitness accounts of the incident which led to the death of Doolan Jones, were as young as 12 years of age.
63 It is clear that the witnesses who did give evidence were traumatised by the experience of having to do so. That is hardly surprising given that they were Aboriginals who resided in the isolated community of Wilcannia. They were in totally alien surroundings in a large international city, a situation which was exacerbated by having to appear in what no doubt seemed to them to be a hostile court environment. There is no reason to suspect that the prospective witnesses would not have had a similar reaction to having to give evidence. I also have no hesitation in accepting that the trial itself was heightening anxiety in the town of Wilcannia as many of its residents inevitably got caught up in the tension created by the proceedings. The fact that many of the parties and witnesses are related to each other served only to heighten the tension to which this trial gave rise. Hopefully the pleas of guilty will go some way towards reducing that tension and enabling the "healing process to commence": see Thomson & Houlton (supra) at par 120.
64 It must be recognised that it is not possible, given the stage at which the pleas were entered, to make an accurate assessment of the strength of the Crown case. I was however provided with a document setting out the manner in which the Crown case was to be put and thus was able, to some extent at least, to gauge its likely strength. Moreover, I had the advantage of hearing a number of witnesses give evidence.
65 It may be observed that those eyewitnesses who had given evidence in the trial, of whom there were about 8, were without exception open to criticism upon the basis that they were either unreliable and/or had problems with their credibility and demeanour. The evidence of at least some of those witnesses appeared to have been coloured by which "camp" in Wilcannia they belonged to. Indeed, it would also have been difficult in the circumstances for the witnesses not to have felt under some form of pressure to take sides in the ongoing dispute which precipitated the incident that led in turn to the present proceedings. Moreover, many of the witnesses were affected at the time of the incident by their having consumed intoxicating liquor, a matter which affected their capacity to both accurately observe and then later recall the details of it.
66 The jury had the benefit of a view of the area in which the fatal incident took place. Suffice it to say that the fatal incident occurred at night in an area that was dimly lit. It is common ground that the incident itself was over very quickly and that it took place in circumstances of considerable confusion. The capacity of eyewitnesses to have accurately observed the incident must have been significantly diminished, especially given the distance from which the observations were made. In those circumstances it is not surprising that the evidence of the witnesses who had given evidence was in the most general of terms.
67 Various other difficulties were also identified. Several of the witnesses maintained that one of the offender King's sons had been involved in the incident. Other material however, I am informed, established that he was elsewhere at the time. Indeed the proceedings which had been commenced against him were terminated. Evidence from a number of witnesses which suggested that there had been an attack of sustained ferocity upon the deceased could not be reconciled with the forensic evidence. Finally, the indications are that the witnesses had, as is to expected, discussed between themselves their recollections of events prior to giving evidence.
68 Given the evidence which was given in the trial the Crown case could not be regarded as particularly strong, and each of the offenders could have reasonably entertained some optimism as to the ultimate verdicts had the matter run its full course. That is a factor to be weighed in the balance in assessing the value of their pleas of guilty. In all those circumstances it can be said that the offenders have each significantly "facilitated the course of justice": see R v Cameron (2002) 187 ALR 65. The pleas of guilty, and the contrition which is implicit in them especially given the challenges facing the Crown, are thus matters that I expressly take into account in the case of each offender: see s 22 of the Crimes (Sentencing Procedure) Act.
69 I have already referred to the length of the trial and, by inference, to "the difficulty of assembling the relevant evidence" given the problems associated with both marshalling the witnesses and the quality of their evidence. This was not a case involving exceptional complexity in the ordinary sense. However, the fact that the Crown was seeking to establish that arising from the same incident, three offenders were party to a joint criminal enterprise to commit murder whilst four others were party to a joint criminal enterprise to commit manslaughter had already given rise to issues of both factual and legal complexity, and was likely to continue to do so.
70 As can be seen, this was a most unusual case which presented almost unique challenges. The Crown expressly conceded that notwithstanding the time at which the pleas were entered, they still had a "significant utilitarian value". In my view, it is appropriate to allow a discount in excess of 20% for all aspects of the pleas of guilty, which includes their utilitarian value, the contrition implicit in them and other matters such as "witness vulnerability". As I have already observed, the evidence reveals that CJ has displayed genuine remorse for his actions, and accordingly he is entitled to some further consideration to reflect that fact.
71 The offender CJ was 16 years at the time of the offence. His age brings into play the provisions of the Children (Criminal Proceedings) Act, and in particular s 6 of that Act. As the offence which he committed meets the description of a "serious children's indictable offence" it will be necessary to deal with him "according to law": s 17.
72 I accept that the age of the offender CJ, whom the legislation regards as having been a child at the time, is a relevant consideration in the present sentencing exercise. The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established. In R v AEM (Snr) & Ors [2002] NSWCCA 58, the Court of Criminal Appeal said:
It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society. (at par 97)
73 In R v Hearne (2001) 124 A Crim R 451, the Court of Criminal Appeal cited, with apparent approval, the principle that:
In sentencing young people…the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed. (at 458)
74 The court then went to observe that: