REGINA v. SUTERS [2000] NSWSC 1116

IN THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL DIVISION

1 HIS HONOUR: Paul Anthony William Suters has pleaded guilty to a charge in an indictment that he was party to the manslaughter of James Alan Kelly in May of 1992 at Waitara. It was over eight years ago that the killing occurred. The short facts have been provided to me in written form. Both parties agree that they properly represent the facts upon which Mr. Suters should be sentenced for his crime. 2 It must be said at the outset that he did not strike the blow that killed the deceased. The deceased died from a heart attack during an assault perpetrated upon him by a companion of Mr. Suters who had, with Mr. Suters, agreed to rob the deceased. Mr. Suters and his companion had been induced by an adult neighbour of the deceased to take that course. They had been so induced by the suggestion that a large sum of money would be available should the deceased's house be burgled and it was suggested the deceased would not be present at the time it was suggested the burglary should occur. 3 It was intended in the event that the deceased was so present that he would be innocuously disabled by the use of an anaesthetic. However, when the offenders arrived at the premises the deceased was present. Mr. Suters' companion struck him a number of times with a Maglite torch. That was the context for the heart attack which killed the deceased. 4 This offender had waited at the front of the house keeping lookout and was available to assist if his companion might be the subject of physical attack by the householder likely to overcome him. 5 Subsequently, the householder having died, the two young men disposed of the body by burying it in bushland and located a small sum of money of $120, a microwave oven, and a box containing a clock. This offender handed the microwave oven to another and that fact was in due course recalled. It, coupled with fingerprints being identified on a piece of cardboard inside the boot of the deceased's vehicle, enabled in due course the identification of this offender. 6 The search that had ensued of the deceased's premises shortly after the finding of the deceased's partly-buried body disclosed some background material involving the neighbour to whom I have referred, Mr. Suters' companion, and another young person. 7 In 1994, evidence came to light suggesting the possible involvement of Mr. Suters and, in particular, his involvement with the microwave oven. The statement of facts to which I have referred is substantially compiled from information provided to the police by Mr. Suters. It does not seem to be contested by the Crown but that in accordance with the principles in the Regina v. Ellis (1986) 6 NSWLR 603 Mr. Suters should receive on sentence not only the benefit of the plea that the Crown has conceded was an early plea but also contrition and remorse evidenced in the most material manner the law provides for; that is to say, the offender has sought to render active assistance to the Crown in circumstances which might well have been attended by considerable personal danger. Such assistance relates to both this matter and associated matters. 8 It is not advisable for me to go into detail as to those matters except to say that they are plainly such as to merit strong consideration in the offender's behalf having regard to the decision of the Court of Criminal Appeal in Regina v. Thomson & Houlton [2000] NSWCCA 309. 9 The reason why the Crown accepts that the plea was an early plea is that the offender was formerly charged with murder but it became apparent, with the assistance of the offender, as to what the true circumstances were and that charge did not proceed. The offender had, however, extended to the Crown the offer of a plea of manslaughter, which was accepted. The deferral of these proceedings being concluded was as a result of the Crown accepting not only that plea but the assistance of the offender to seek to obtain the true facts and to assist the Crown with its investigations. 10 When sentencing for a crime of manslaughter one starts with the proposition that it involves the felonious taking of a human life. It is a crime of great gravity. It is punishable by a maximum of 25 years imprisonment. The circumstances which might give rise to a manslaughter are various and the degrees of culpability are very wide. In particular, those circumstances are various where they apply, as here, not to the principal in the first degree but to one who is present and, by his presence, assisting in the circumstances in which the deceased has come to meet his death but which it is not suggested are such as to put the individual offender on notice that death is likely to have occurred. 11 The range of sentences the Court might impose for manslaughter is very wide. The offence has been described as protean because of the way in which it might change character. Similarly, different kinds of sentence may have to be adapted to the individual circumstances of the offender. 12 In this case, the offence is of great gravity as having been committed during the commission of another serious offence, that is robbery, and that committed in the context of a planned burglary. I have to have regard to these matters and to the criminality involved in the disposition of the body and the taking of the money, so that it cannot be said that this offence is one which would not merit a substantial period of custodial imprisonment in the ordinary course. 13 The offender did not take part in any of the violence administered to the deceased. He had apparently not contemplated that blows would be administered to the deceased. It was the heart attack which caused the deceased's death. 14 He not only has no criminal record before or since but the very actions he has undertaken to assist the Crown indicate a substantial degree of rehabilitation on his part. He gave a detailed account of his own and the activities of others in respect of this matter and that, it is accepted by the Crown, clarified the role of his co-accused. He had attempted to assist as to the role of others. 15 He is now aged 27 years, having been only 19 at the time of the killing. Although he should not receive credit for the period of delay during which his involvement in the offence was concealed nonetheless regard should be had to that period and, in particular, to the worthy life I am assured by the Crown he lived during that period when considering the matter of rehabilitation which is regarded as most important by the High Court (see Regina v. Dinsdale [2000] HCA 54) when looking at the nature of the precise penalty that should be imposed. 16 There is another complicating factor. The actual assailant was dealt with in this court a year ago. For what was disclosed to be his part in the offences he received a recognisance. He was not charged with the homicide. He was charged as an accessory after the homicide. He, like the present offender, presented as a young man who is now completely rehabilitated. 17 The Crown has had regard to that matter, since the parity consideration cannot be eliminated from the scenario, even though he was not charged with the same offence. It would produce a serious incongruity if this offender, through honestly disclosing his and his co-offender's involvement, should be dealt with in a way inconsistent with the way his co-offender was dealt with, he having had a lesser role in the crime. Some regard has to be had to the mode of treatment of each offender (see Regina v. Hodges (1997) 95 A. Crim. R. 85; Regina v. Postiglioni (1997) 71 ALJR 875). 18 This is a most unusual case. It is so unusual that the Crown has submitted that it is of relatively low objective seriousness in comparison to other offences of this kind. I am unable to accept that submission. In my view it is a serious matter. However, having regard to the assistance and the rehabilitation achieved during the period between the time of the commission of the offence and the offender coming forward, having regard to contrition and having regard particularly to what the offender has done to try as best he could, even in circumstances which might have been attended by personal danger, to assist the Crown to the truth, I am of the view, consistently with what had been said in Thomson & Houlton (supra) that the appropriate course does not require full-time custody. 19 It had been submitted by the Crown that a sentence of four years imprisonment with a one and a half to two and a half year non-parole period to be served by way of periodic detention was appropriate. Mr. Flynn, who appears for the offender, had submitted that that was an appropriate disposition of the matter. It has been ascertained, however, that such a course is not available since periodic imprisonment can be applied only to the whole of a sentence which is passed and to sentences no longer than three years. 20 In those circumstances, and consistently with the submission made to me in writing by the Crown, the learned Crown Prosecutor has submitted that the appropriate course is to pass a sentence of imprisonment for two years to be served by way of periodic imprisonment. 21 That sentence would effectively be the equivalent of the custodial portion of the sentence the Crown had originally submitted might be passed. 22 In any event, it does not seem from the submissions I have received from the Crown that any further supervision over and beyond the custodial portion of that sentence is likely to be necessary in this case since I cannot contemplate that the Crown would have made to me the submissions that they have if the Crown thought there might be any risk that this offender would offend again. 23 The sentence I propose to pass, therefore, will be a sentence of two years to be served by way of periodic detention. I have regard to the fact that I have received from the Probation & Parole Service a report which complies with the Act for the purpose of passing that sentence. It will be necessary to nominate when the sentence will commence and at what institution and to confirm that there are places available. 24 The parties have prepared a document which recites the matters listed in s 66 and also includes the conditions under which the offender will report to Tomago Detention Centre next Saturday 9 December 2000. I have regard, as I did on passing sentence, to the assessment report and the Probation & Parole Office Report. 25 Mr. Suters, you have, in respect of the sentence of imprisonment to be served by way of periodic imprisonment that I am about to impose upon you, certain obligations. They include the obligations set out on the form that you signed for the Probation & Parole Service Officer in which you undertook to comply with the requirements and standard conditions (a) to (c) and that you are required to comply with those obligations as you had noted in the form. 26 The requirements continue on annexure 7 that you will report to the periodic detention centre specified at the beginning of each detention period unless the Commissioner varies the times or places, that you are required to make application for leave of absence in the circumstances stipulated, that if you are late you will apply for leave of absence, and if you are directed to take leave of absence you will. 27 The initial directions are set out in that document and that includes the necessity not to take any medication with you into such a centre. You can become liable to have your periodic detention order revoked for failing to comply with your obligations in which case you will have to complete the remainder of your sentence in prison subject to any grant of parole. 28 In this case, I intend to pass sentence upon you of a fixed term of imprisonment to be served by way of periodic detention. 29 I will, on that basis, decline to set a non-parole period pursuant to s.45 of the Crimes (Sentencing Procedure) Act 1999 because I am imposing a sentence to be served by way of periodic detention and because of the length of the sentence which I am imposing and because of the degree of rehabilitation you have already undergone. 30 I sentence you to a term of two years imprisonment to be served by way of periodic detention. The date of commencement of that sentence is to be Saturday 9 December 2000. You are required to report to the Tomago Detention Centre before 8.00 am on that day and thereafter every following weekend before 7.00 pm each Friday evening. 31 The relevant documentation may be entered into in the Registry. ********

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