Applicable principle
45 I must proceed to sentence the offender against the background of the relevant statutory framework and in accordance with the principles enunciated in the relevant authorities. Because of the date on which the plea of guilty was entered, s3A of the Crimes (Sentencing Procedure) Act 1999 applies:
"3A. The purposes for which a court may impose a sentence on an offender are as follows:
(a) to ensure that the offender is adequately punished for the offence,
(b) to prevent crime by deterring the offender and other persons from committing similar offences;
(c) to protect the community from the offender,
(d) to promote the rehabilitation of the offender,
(e) to make the offender accountable for his or her actions,
(f) to denounce the conduct of the offender,
(g) to recognise the harm done to the victim of the crime and the community."
46 It is also necessary in determining the appropriate sentence to have regard to the aggravating and mitigating factors which are set out in s21A of that Act. It is apparent from the concluding words of s21A(1) that the list is not exhaustive. It is not necessary to refer to all of the factors therein set out but only to those which are relevant.
47 Of the aggravating factors, the only one which is relevant is that the offence involved the actual use of a weapon. So far as mitigating factors are concerned, the offence was not part of a planned or organised criminal activity, there was some element of provocation, the offender does not have any record of significance, the offender was a person of good character, she is unlikely to re-offend, she has good prospects of rehabilitation, she has shown remorse and entered a plea of guilty at an early point in time. By way of further mitigation there was some element of self-defence in the offence.
48 It is also necessary to have regard to the maximum penalty which is prescribed by the legislature. For manslaughter it is imprisonment for 25 years (s24 Crimes Act 1900). Finally, I take into account s5(1) of the Crimes (Sentencing Procedure) Act 1999 which provides that:
"A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate."
49 Insofar as the authorities are concerned, "It is now well established that when a human life is taken, even within the context of domestic violence the Courts will not deal leniently with the offender unless the case is exceptional. It is only in the most exceptional case that a non-custodial sentence will be imposed." (R v Bogunovich, (Maxwell J, 30 May 1985, unreported), R v Roberts (Hunt J, 31 August 1989, unreported), R v Kennedy [2000] NSWSC 109 at [56], R v Melrose [2001] NSWSC 847 at [27]).
50 As was said by Street CJ in R v Hill (1980) 3 A Crim R 397:
"It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interests of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life."
51 Cases such as this where the offender is found to have lacked the intent to kill or do grievous bodily harm fall towards the lower end of the range of seriousness of manslaughters. In the proceedings before me the Crown appropriately conceded that depending upon which view the Court took of the offender's culpability a non-custodial sentence might be appropriate.
52 In the present case, having regard to the matters to which I have referred, I am satisfied that the circumstances are exceptional. The circumstances of the offence are most unusual and involve culpability at the low end of the range. There are the significant number of mitigating circumstances to which I have referred in the context of s21A. There are the sad personal circumstances of the offender, including her age and the fact that there are five very young children entirely dependent upon her. There is also the offender's aboriginality which of itself can give rise to particular difficulties (R v Stanley Edward Fernando (1992) 76 A Crim R 58). There is the fact that the offender has already spent ninety days in custody and for a period of over two and a half years has had to comply with a rigorous reporting regime whilst on conditional liberty. She entered a plea of guilty at an early point in time.
53 Against those considerations, the Court still has to have regard to the sanctity of human life and the purposes of sentencing set out in s3A of the Crimes (Sentencing Procedure) Act in particular denouncing the conduct of the offender and making the offender accountable for her actions and ensuring adequate punishment for the offence.
54 Taking all those matters into account, I am satisfied that no alternative is appropriate other than a sentence of imprisonment. I do not think in the circumstances of this case that a good behaviour bond would adequately meet the purposes of sentencing set out in s3A of the Act. In my opinion a sentence of 2 years is appropriate and I determine a sentence of imprisonment of 12 months with a balance of term of 12 months. However, having regard to the matters in para [52] hereof, I have decided that the sentence of imprisonment should be fully suspended. (R v Zamagias [2002] NSWCCA 17.)
55 Lacy Lee Jukes in accordance with s12 of the Crimes (Sentencing Procedure) Act 1999 you are sentenced to imprisonment for a period of 12 months to commence on 13 October 2006 and to expire on 12 October 2007 with a balance of term of 12 months to expire on 12 October 2008 such sentence to be wholly suspended for a period of 2 years. I suspend the sentence on condition that you be of good behaviour for a period of 2 years and that you be liable to be called up for sentence at any time within that period for any breach of this condition. It is a further condition of the suspension of your sentence that within 48 hours after your release you report to an officer of the Probation and Parole Service at Tamworth and that you accept the supervision and obey all reasonable directions of the officers of that Service for a period of 2 years or for such lesser time as specified by the Service.
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