R v SMP

The application 12 In this Court, counsel for the applicant, who did not appear in the sentence proceedings, argued that the sentence is manifestly excessive and that, in any event, his Honour fell into error in ordering that the applicant serve the sentence in a detention centre only until he turns twenty-one. In addition, counsel relied upon what was said to be fresh evidence. As we are satisfied that the sentence is manifestly excessive, we find it unnecessary to determine whether that material qualifies as fresh evidence. However, it is appropriate that we should receive it for the purpose of re-sentence. 13 This Court has commented on a number of occasions on the breadth of the range of sentence for manslaughter, given the wide variety of human conduct which might constitute that crime: see, for example, R v Troja (unreported 16 July 1991) per Kirby P at pp2-3. It is for that reason that guidance is not readily available from other decisions of this Court and the statistics produced by the Judicial Commission of NSW must be approached with particular caution. Nevertheless, those statistics in respect of all offenders, drawn from a large sample of cases, place both the head sentence of seven years and the minimum term of four years in about the middle of the range. This accords with our experience of the pattern of sentence for manslaughter. 14 We were referred to a number of decisions of this Court in cases of manslaughter arising from the use of a knife: Azar (1991) 56 ACrim R 414, Taouk (unreported 20 March 1992), Sofokleous (unreported 13 December 1993), MacDonald (unreported 12 December 1995), Bollen (unreported 9 September 1997). It is unnecessary to analyse those cases in this judgment. It is sufficient to say that they are consistent with our view that the present sentence cannot stand. We have arrived at that view only after careful consideration, as we are mindful of the great experience of the learned sentencing judge. However, given the applicant's youth and his Honour's findings about the level of his culpability, quoted above, a sentence significantly lower in the range was appropriate. 15 We have observed that another complaint in the appeal is his Honour's order that the applicant should serve his sentence in a detention centre until he turns twenty-one, even though the four year minimum term would not then have expired. It may be that his Honour made that order under a misapprehension that, when a person reaches that age, he or she can be detained only in an adult gaol. The decision of this Court in R v Karhani (unreported 14 October 1998) is testament to the fact that that misapprehension is both widespread and understandable. The power to make the order which his Honour did is to be found in s19 of the Children (Criminal Proceedings) Act 1986. The effect of that section is that a court, when dealing with a person who was under eighteen at the time of the offence and is under twenty-one at the time of sentence, may direct that the whole or any part of the sentence imposed be served in a detention centre. The section does not prevent such an order continuing to have effect after the person turns twenty-one.