Ground 1 - The Sentencing Judge Erred in the Assessment of the Objective Seriousness of the Manslaughter Offence
Submissions of the Parties
35The Crown accepted that the sentencing Judge had addressed correctly the pertinent features that informed the objective seriousness of the crime of manslaughter. However, challenge was made to the mechanism by which the sentencing Judge determined that this case did not fall within the worst case category.
36The Crown relied upon s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999 as a factor bearing upon the objective seriousness of the Respondent's offences. Section 21A(2)(a) provides:
"(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, ..."
37The sentencing Judge considered whether s.21A(2)(a) required knowledge or belief on the part of an offender that the victim fell within one of the nominated categories, in this case, a police officer exercising public functions with the offence arising because of the victim's occupation.
38In reasoning which is not challenged in this Court, her Honour ruled that knowledge or belief that the victim fell into one of the designated categories was not essential to attract s.21A(2)(a), with that statutory aggravating factor capable of applying if it was reasonably foreseeable to the offender that the victim fell into such a category. The sentencing Judge said at [52]-[53]:
"[52] As I see it, accepting as I must that the offender might actually have believed that the police officers were robbers (indeed, even accepting that he actually held that belief), I am also entitled to find that he could equally have reasonably foreseen that men approaching him in the basement car park might not be robbers. This conclusion is open since it appears to have been conceded by him in the statement of agreed facts that he heard the men announce that they were police but because he thought they were robbers pretending to be police, he obtained his pistol and fired it at one of them without ascertaining whether they were in fact police.
[53] In the result, I propose to take into account s 21A(2)(a) as an aggravating factor in the assessment of objective seriousness, not because the offender knew or believed that Constable Crews was a police officer, but because he ought reasonably to have foreseen the possibility that he might be. Whilst the feature of aggravation put in this way is of slightly less weight than were he to have been actually aware that the man he shot at was a police officer, it does aggravate the objective seriousness of both offences to a significant degree."
39In support of the first ground of appeal, the Crown contended that the sentencing Judge fell into error in the underlined portion of [57] set out hereunder:
"[57] In conclusion, I accept that the offender was unaware that Constable Crews was a police officer when he shot him and that, although he did not fire the shot that killed Constable Crews, he caused his death. I also accept that when he discharged the pistol that caused his death and the wounding he had a genuine belief (entirely misplaced) that he needed to defend himself against a perceived threat of harm. Notwithstanding those findings, the circumstances in which the offences were committed, including the aggravating factors to which I have referred, render both offences objectively serious. I am not persuaded, however, that either offence is in the worst category. It would have been otherwise were the offender to have shot at Constable Crews intending to inflict grievous bodily harm knowing or believing he was a police officer, or were he with that same state of awareness to have pleaded guilty to manslaughter on the basis that Constable Crews was killed by his unlawful and dangerous act in shooting at him."
40The Crown submits that, to the extent that the sentencing Judge used the absence of knowledge or belief by the Respondent of the victim being a police officer as the basis to reduce the perceived seriousness of the offence of manslaughter, error was demonstrated. Had the Respondent known or believed that the victim was a police officer, the Crown submitted that he would not have been able legitimately to rely upon an entirely misplaced but genuine belief that he needed to act as he did to defend himself from a perceived harm. In these circumstances, the appropriate charge would have been murder rather than manslaughter.
41In approaching this issue in this way, the Crown submitted that the comparison of possible scenarios referred to at [57] of the remarks on sentence involved error in accordance with the principles in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 at 389.
42To the extent that the sentencing Judge had evidently assessed the seriousness of the manslaughter offence by factoring in this distinction, it was submitted there would of necessity had been some mitigation of the assessment of objective seriousness. The apparent point of distinction introduced a hierarchy into the assessment between the two possible scenarios that operated in an impermissible way in favour of the Respondent. By factoring into the range of offending, a circumstance that was outside the scope of the offence, it was submitted that the sentencing Judge had reduced erroneously the objective seriousness of the manslaughter offence.
43As a result, the Crown submitted that the Respondent's manslaughter offence was assessed as being at a lower level of objective seriousness than its true position.
44Submissions advanced for the Respondent did not seek to challenge this analysis, nor the suggested error which the Crown asserted had been revealed. Rather, the submission concentrated upon the discretionary nature of an assessment of objective seriousness.
Decision
45In imposing sentence, a Judge is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted conviction for a more serious offence: The Queen v De Simoni at 389 (Gibbs CJ).
46The sentencing proceedings were conducted upon the basis that what would otherwise have rendered the Respondent liable to conviction for murder ought be reduced to manslaughter as the Crown could not negative the Respondent's belief that his conduct was necessary to defend himself, although the conduct was not a reasonable response in the circumstances as he perceived them: s.421 Crimes Act 1900. In these circumstances, the Respondent was guilty of manslaughter and the Respondent's plea was approached upon this basis.
47If the Respondent had known or believed that he was shooting at a police officer, the basis upon which he was rendered liable to conviction for manslaughter, and not murder, would have been removed.
48If the Respondent stood for sentence for the murder of a police officer exercising public functions with the offence arising because of the victim's occupation, the maximum penalty would have been imprisonment for life: s.19A(1), (3). A standard non-parole period of 25 years would have applied: s.54A(1); Item 1A, Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act 1999. The provision permitting a mandatory life sentence for the murder of a police officer contained in s.19B Crimes Act 1900 could not apply to the Respondent's case as it extends only to offences committed after 23 June 2011.
49Claims of breaches of the De Simoni principle occur from time to time in the context of the escalating statutory scheme for assault and wounding offences in the Crimes Act 1900, where it is said that a sentencing court has taken into account, as an aggravating factor, a circumstance that would warrant conviction for a more serious offence. A sentencing court is entitled to consider all the conduct of the offender, but cannot take into account, as an aggravating factor, circumstances which would have warranted conviction for a more serious offence: McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 557 [34].
50The De Simoni principle would be breached as well if, for example, the sentencing court took into account the absence of grievous bodily harm in assessing the objective seriousness of an offender for an offence of assault occasioning actual bodily harm.
51The sentencing of offenders for public justice offences lying within the statutory hierarchy of offences contained in Part 7 Crimes Act 1900 has also given rise to breaches of the De Simoni principle: R v Mobbs [2005] NSWCCA 371 at [30]-[33]. This Court has held that in assessing the objective seriousness of an offence of influencing a witness under s.323(a) Crimes Act 1900, it was wrong to have regard to the absence of a feature (the absence of threats) which, if it were present, would constitute a different and more serious offence of threatening to cause injury or detriment to a person intending to influence a person as a witness contrary to s.322(a) Crimes Act 1900: R v Burton [2008] NSWCCA 128 at [66], [89]-[90].
52We are satisfied that error of this type has been demonstrated in this case. For the purpose of assessing the objective seriousness of the Respondent's crime of manslaughter, it was erroneous to have regard to the absence of a factor which, if it existed, would have rendered the Respondent guilty of murder. In this way, an extraneous or irrelevant consideration has affected the sentencing decision: House v The King [1936] HCA 40; 55 CLR 499 at 505.
53An additional difficulty arises in the remarks on sentence at [57], where reference is made to a different approach being available if the Respondent had "pleaded guilty to manslaughter on the basis that Constable Crews was killed by his unlawful and dangerous act in shooting at him". This distinction had not been adverted to at the sentencing hearing. As mentioned in the course of argument before this Court (T3-4, 31 July 2013), it is difficult to see how the act of shooting at a police officer with intent to inflict grievous bodily harm could be characterised merely as an unlawful and dangerous act for the purpose of the law of manslaughter. This aspect is secondary to the Crown's principal complaint that a breach of the De Simoni principle has occurred in this case.
54The Crown has demonstrated error in the finding of reduced objective seriousness by reference to an impermissible factor. Accordingly, the first ground of appeal is made good.