Sentencing Manifestly Excessive
12 Senior counsel for the applicant submitted that, having regard to her Honour's finding that the applicant's intent was not to kill or do grievous bodily harm to the deceased but to scare him, his culpability should be measured by reference to that intent. He sought to contrast this case, on the basis of the findings made by her Honour in that regard, with that of Isaacs v R (1997) 41 NSWLR 374.
13 In Isaacs, the victim had been beaten around the head by the convicted prisoner with a piece of dowel. He had placed tape around the dowel before the attack, explaining that he had done so because he expected to end up with skin and blood on the weapon and that by removing the tape he would be able, subsequently, to destroy the evidence. An effort was in fact made to destroy evidence of the violence. Isaacs was sentenced on the basis that he had intended to cause grievous bodily harm. He had not offered any plea and the sentencing judge had found that the prisoner's conduct following the killing was "not only inconsistent with contrition, but indicated a callous attitude which made the case even more serious", but that he was otherwise a person of prior good character. He was sentenced to penal servitude for 9 years, involving a minimum term of 5 years and an additional term of 4 years. The prisoner's appeal was dismissed.
14 In this case, the applicant had consistently and from an early time offered to plead guilty to manslaughter and her Honour had accepted that he was genuinely remorseful. It was submitted therefore, that Isaacs was a more serious case warranting more severe punishment than ought to have been imposed on this applicant.
15 The Crown, however, in supporting the trial judge's sentence, submitted that it has always been accepted and, as was expressly stated by the Court in Isaacs at 381, that
"The range of sentencing available in the case of manslaughter is notoriously wide … sentencing on the basis of manslaughter by an unlawful and dangerous act would need to pay due regard to the [relevant] circumstance."
16 The Crown provided to the Court a number of cases which not only demonstrated this point but also, it was submitted, clearly demonstrated that her Honour's sentence was not outside a proper discretionary range. See for example: R v Bryant [1999] NSWCCA 181; R v Esposito [2000] NSWSC 284; R v MacDonald (unreported, New South Wales Court of Criminal Appeal, 12 December 1995); R v Oinonen [1999] NSWCCA 310.
17 The Crown further pointed out that there were other relevant circumstances here which reinforced its submission as to the appropriateness of the trial judge's sentence. In particular, it referred to the fact that the killing had occurred in circumstances where the applicant was attempting to dissuade the deceased from using the civil court system to assert his legal rights. In R v Chetcuti (unreported, New South Wales Court of Criminal Appeal, 24 December 1993) Loveday AJ (Finlay and Smart JJ agreeing) said at 27:
"It is the utmost importance in the administration of justice that persons who seek to circumvent due court process by violent action should be severely punished so that others who might contemplate the like action should be deterred."
18 In addition, the Crown pointed to the extreme objective gravity of the applicant's conduct, and in particular to the facts that the applicant loaded the rifle at the scene and repeatedly fired it in the direction of the deceased. It was submitted that it was difficult to envisage a more serious example of manslaughter by an unlawful and dangerous act.
19 We do not consider that the sentence imposed by her Honour was outside an appropriate discretionary range, given the extreme objective gravity of the offence and the applicant's intention to scare the deceased out of proceeding with the legal action against him by threatening the deceased with a gun. Accordingly, no error has been demonstrated in this part of her Honour's judgment.