1 MASON P: The applicant was charged with the murder of Mitchell Wilder. He pleaded guilty to manslaughter at what was found to be the first practicable opportunity, and that plea was accepted by the Crown. Adams J sentenced him to eight years imprisonment with a non-parole period of four years and six months. The sentence commenced on 1 April 2000.
2 His Honour described the facts of the offence in the following terms: [quoted from paras 2-4 and para 7]
The offender, who has been an alcoholic for many years, together with some friends, including the deceased, was involved in a drinking bout over a period of something like two days. During the night of the day in question, 11 April 2000, an argument broke out between the offender and the deceased at about 9 o'clock. It appears that the offender walked over to where the deceased was sitting on a bed and punched him hard with a fist, knocking him back on to the bed. One or more blows were again inflicted at that point.
The deceased left the room and walked outside with the offender following him calling on him to fight. It seems most unlikely that the deceased attempted to fight the offender who, however, punched him again. The deceased fell to the ground and the offender tried to kick him although, no doubt having regard to his drunken state, he did not succeed and his foot did not reach the deceased's body. The offender walked away from the deceased who was still then alive and returned to his unit which is part of the complex in which this event occurred.
No-one appreciated the fact that the deceased had suffered a subdural haemorrhage. I accept the fact that the offender did not for one moment think that he had inflicted lethal blows. Unfortunately, some six hours or so later, the deceased, who remained lying where he was outside his unit, died from a subdural haemorrhage….
The deceased died as a result of blows of significant violence inflicted on him by the offender when they were both affected adversely by alcohol. The autopsy reveals that the deceased suffered a number of injuries to his head and face. Although not all of those were inflicted by the offender, I am satisfied beyond a reasonable doubt that the offender was the aggressor, relying mainly on the evidence of the eyewitness, the lack of any defensive injuries to the deceased, and the lack of any injury to the offender.
3 The applicant had a very limited formal education and his reading age is consistent with that of an 11 year old child. At some stage he was placed in an institution as a state ward because he was considered uncontrollable. He has a record of convictions for assault and theft and robberies. He is now aged 37. He has spent a considerable part of his adult life in prison. Otherwise he has been unemployed.
4 There is a history of alcohol abuse and physical fighting. The concluding paragraphs of Adams J's remarks on sentence were as follows:
The offender has expressed no contrition for Mr Wilder's death except in so far it may be fair to infer a level of contrition from his plea. I am bound to say, however, that in the circumstances, the plea was an acceptance of the inevitable, as there could have been no doubt that he was at least guilty of manslaughter.
I have some misgivings about whether special circumstances exist in this case but I think, in the public interest, I should act upon the basis that the offender's alcohol problem was a significant factor in the offence and that a lengthy time of supervision may assist him to develop personal resources allowing him, if not to overcome, to at least moderate, its effects on his life and the lives of those around him. He presents as a man without social support except for those who join him in his drinking bouts. A time longer than would otherwise be the case structured supervision may well be not only in his interest but also in the public interest.
The commencing point for sentencing this offender in all the circumstances seems to me to be a sentence of nine years with a non parole period of six years. In light of the decision in R v Smith , R v Houlton [2000] NSWCCA 309 in relation to appropriate discounts for pleas of guilty, I cannot see a proper basis for denying this offender the discount available to persons who plead at first opportunity. Accordingly, I allow a twenty-five per cent reduction in the sentence. So far as the non parole period is concerned, this would reduce the term to four years and six months. In respect of the full term, however, I think that a period of eight years is appropriate having regard to the special circumstances even though this is slightly more than a twenty-five per cent discount would produce if calculated arithmetically.
Gary Grant Greenhalgh, you are sentenced to a term of eight years commencing 13 April 2000 and ending on 12 April 2008 with a non-parole period expiring on 12 October 2004.
5 The applicant does not suggest that the commencing point for the sentence imposed was excessive. However, the challenge focuses upon what might be termed an error of process, and in particular the failure to approach the sentencing task in the manner required by s44 of the Crimes (Sentencing Procedure) Act 1999 which provides:
44. Court to set term of sentence and non-parole period