R v SMP [1999] NSWCCA 318 | Case summary

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.

Re-sentence 16 As we have said, for the purpose of re-sentence it is necessary to examine the new material upon which the applicant relies. That material discloses his experience of custody at Long Bay and Silverwater before he was sentenced, and in detention centres since that time. 17 It appears that he found incarceration at Long Bay terrifying. He feared sexual abuse and he alleges that on one occasion he was physically assaulted by prison officers. However, when he was moved to Silverwater he felt that he was treated fairly and he was given a part-time job as a sweeper. Unfortunately, the situation deteriorated after he was transferred to Kariong Juvenile Justice Centre in December 1998, when he was sentenced. He was at that institution during its notoriously turbulent period in March and April of this year, although it is not suggested that he took part in any of the violent or destructive behaviour which occurred at that time. 18 On 23 April 1999 the applicant was moved to the Juvenile Justice Centre at Mount Penang. There, he was involved in two violent incidents. In one of them he was acting honourably, attempting to protect one young man from being assaulted by others. He was seriously injured, requiring surgery for a fractured cheekbone. In the other he was the aggressor, assaulting another resident who was abusing him verbally. However, a report of the Department of Juvenile Justice described his behaviour as having been "compliant and cooperative" since that time. In a report of a departmental psychologist it is said that he is "a thoughtful, mature young man", who is "not a management problem". 19 Since being sentenced the applicant has set about furthering his eduction. Apart from basic tuition in English and mathematics, he has undertaken a number of specific courses, including visual arts. Reports speak very favourably of his application and progress. He would be able to undertake the School Certificate at Mount Penang next year, and would be eligible for Higher School Certificate candidature at that institution in 2001. 20 In one sense, it would be desirable for the applicant to remain in the custody of the Department of Juvenile Justice so as to complete his education. However, that is no reason to fix a minimum term which, having regard to ordinary sentencing principles and the circumstances of the case, would be excessive. It is to be hoped that, with his new found maturity and the support of his family, he would be able to achieve his educational goals while at liberty. In arriving at what we consider to be the appropriate sentence, we have had regard to all the material that was before his Honour, together with the new material before this Court evidencing the hardship he has experienced in custody since being sentenced, as well as the significant progress he has made. Clearly, as his Honour found, there are special circumstances warranting a departure from the usual proportion between minimum and additional terms. 21 Leave to appeal should be granted, the appeal allowed, and the sentence passed by his Honour quashed. We re-sentence the applicant to penal servitude for five and a half years, comprising a minimum term of two years and nine months, commencing on 14 May 1997 and expiring on 13 February 2000, and an additional term of two years and nine months. We direct that the whole of the custodial component of the sentence be served in a detention centre.

R v SMP

At a glance

Court

Decision date

Before

Source

Judgment (3 paragraphs)

Parties

Cases Cited (1)

Cited By (1)