Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Nguyen [2013] NSWCCA 195
• Hearing dates: 31 July 2013
• Decision date: 28 August 2013
• Before: Beazley P at [1]; Johnson J at [1]; RA Hulme J at [1]

Decision

1. Crown appeal allowed.

2. Sentences imposed in the Supreme Court on 15 March 2013 are quashed. In their place:

(a) For the offence of wounding with intent to cause grievous bodily harm, the Respondent is sentenced to imprisonment comprising a non-parole period of 6 years commencing on 8 September 2010 and expiring on 7 September 2016 with a balance of term of 2 years and 1 month commencing on 8 September 2016 and expiring on 7 October 2018.

(b) On the count of manslaughter, and taking into account the offence on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of 12 years commencing on 8 September 2011 and expiring on 7 September 2023, with a balance of term of 4 years and 2 months commencing on 8 September 2023 and expiring on 7 November 2027.

3. The earliest date upon which the Respondent will be eligible for release on parole is 8 September 2023.

• Catchwords: CRIMINAL LAW - Crown sentence appeal - pleas of guilty - manslaughter and wounding with intent to cause grievous bodily harm - excessive self-defence manslaughter - victim a police officer engaged in lawful execution of duty - execution of search warrant - Respondent shoots at and wounds victim with intent to inflict grievous bodily harm - Respondent believes unreasonably that victim and other police not genuine police - other police officer discharges firearm in response inflicting fatal injury to victim - objective seriousness of offences - errors established concerning assessment of objective seriousness of both offences - error in imposing entirely concurrent sentences - sentences manifestly inadequate - aggravating factor that victim a police officer acting in execution of duty - importance of specific and general deterrence - seriousness of possess prohibited firearm offence taken into account on Form 1 for manslaughter offence - Respondent resentenced
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Firearms Act 1996
• Cases Cited: AB v R [2013] NSWCCA 160; Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41; Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; 202 A Crim R 300; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; Hanania v R [2012] NSWCCA 220; Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151; House v The King [1936] HCA 40; 55 CLR 499; Markarian v The Queen [2005] HCA 25; 228 CLR 357; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549; Muldrock v The Queen [2011] HCA 39; 244 CLR 120; R v AZ [2011] NSWCCA 43; 205 A Crim R 222; R v Baker [2000] NSWCCA 85; R v Burton [2008] NSWCCA 128; R v Hamilton (1993) 66 A Crim R 575; R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66; R v Jarrold [2010] NSWCCA 69; R v JW [2010] NSWCCA 49; 77 NSWLR 7; R v MAK [2006] NSWCCA 381; 167 A Crim R 159; R v Mobbs [2005] NSWCCA 371; R v Nguyen [2013] NSWSC 197; R v Penisini [2004] NSWCCA 339; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704; R v Thalari [2009] NSWCCA 170; 75 NSWLR 307; R v XX [2009] NSWCCA 115; 195 A Crim R 38; Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515; 137 A Crim R 196; Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146; The Queen v De Simoni [1981] HCA 31; 147 CLR 383; Yang v R [2012] NSWCCA 49; 219 A Crim R 550
• Texts Cited: ---
• Category: Principal judgment
• Parties: Regina (Appellant); Philip Nguyen (Respondent)
• Representation: Counsel: Ms N Noman SC (Appellant); Mr H Ledinh, Solicitor (Respondent); Solicitors: Solicitor for Public Prosecutions (Appellant); Ledinh Lawyers (Respondent)
• File Number(s): 2010/300562
• Publication restriction: ---

Decision under appeal

• Citation: R v Nguyen [2013] NSWSC 197
• Date of Decision: 2013-03-15 00:00:00
• Before: Fullerton J
• File Number(s): 2010/300562

Judgment

1 THE COURT: This is a Crown appeal under s.5D Criminal Appeal Act 1912 with respect to sentences imposed upon the Respondent, Philip Nguyen, for offences of manslaughter and wounding with intent to cause grievous bodily harm.

2 On 15 March 2013, the Respondent was sentenced for the manslaughter of William Crews to imprisonment for 9 years and 6 months, comprising a non-parole period of 7 years to date from 8 September 2010 and a balance of term of 2 years and 6 months.

3 On the charge of wounding William Crews with intent to cause grievous bodily harm, the Respondent was sentenced to an entirely concurrent term of imprisonment of 6 years and 3 months, with a non-parole period of 4 years and 9 months to date from 8 September 2010 and a balance of term of 1 year and 6 months.

4 Accordingly, the total effective sentence for both offences was imprisonment for 9 years and 6 months with a non-parole period of 7 years.

5 The maximum penalty for manslaughter is imprisonment for 25 years: s.18(1)(b) Crimes Act 1900. There is no standard non-parole period prescribed for this offence. The maximum penalty for wounding with intent to cause grievous bodily harm is imprisonment for 25 years: s.33(1)(a) Crimes Act 1900. A standard non-parole period of 7 years is prescribed for this offence.

6 In sentencing the Respondent for manslaughter, the sentencing Judge took into account, on a Form 1, an offence of possession of a prohibited firearm contrary to s.7(1) Firearms Act 1996. If prosecuted separately, this offence was punishable by imprisonment for 14 years and a standard non-parole period of 3 years would apply.

Grounds of Appeal

7 On 27 March 2013, the Crown filed a Notice of Appeal to this Court. The Crown relied upon the following grounds of appeal:

(a) Ground 1 - the sentencing Judge erred in the assessment of the objective seriousness of the manslaughter offence.

(b) Ground 2 - the sentencing Judge erred in failing to sentence in accordance with the finding made as to the objective seriousness of the wounding with intent offence.

(c) Ground 3 - the sentencing Judge erred in the approach to the totality principle in determining that the overall criminality could be comprehended by the sentence for manslaughter.

(d) Ground 4 - the sentences are manifestly inadequate.

8 In approaching the grounds of appeal, it should be kept in mind, as the sentencing Judge observed correctly, that the "unusual, even unique, factual circumstances" of the case presented the Court "with a challenging sentencing exercise": R v Nguyen [2013] NSWSC 197 at [70].

Facts of Offences

9 Constable William Crews was a 26-year old member of the New South Wales Police Force at the time of his death on 8 September 2010. As will be seen, he was engaged in operational police activities as part of the lawful execution of a search warrant at the time of the tragic events on 8 September 2010.

10 The sentencing Judge made factual findings for the purpose of sentence by reference to a Crown case summary agreed for that purpose. Her Honour recited at [9]-[17]:

"[9] In September 2010 the offender lived at a unit complex at Bankstown. He also had use of a garage numbered 8 in the basement car park to the complex.

[10] On 8 September 2010 Detective Senior Constable Roberts, attached to the Middle Eastern Organised Crime Squad, received information from a registered source as a consequence of which a search warrant was applied for in relation to the offender's residential unit and Garage 8. The warrant was issued later that day. Detective Senior Constable Roberts was the officer-in-charge of the execution of the warrant. Prior to the deployment of the police officers who were to assist in the execution of the warrant, Detective Senior Constable Roberts conducted a briefing which was attended by those officers, including Constable Crews.

[11] Of the eight police officers deployed to execute the warrant, three were in police uniform. The remaining officers, including Constable Crews and Detective Senior Constable Roberts, were in civilian clothes. Some or all of the officers were armed with police issue weapons. Constable Crews was armed, as was Detective Senior Constable Roberts. The operation was, however, deemed to be of low risk. It was not anticipated that there would be firearms in the offender's premises or at his disposal.

[12] Police arrived at the unit complex and effected entry at approximately 9 pm. Access was obtained with the assistance of a resident who directed police to Garage 8. The basement area was accessed through a closed door from inside the unit complex.

[13] Detective Senior Constable Roberts led the officers into the basement followed by Constable Crews. Detective Senior Constable Roberts was carrying a battering ram in the event that it was necessary to force entry to the garage. Constable Crews was carrying a folder containing the warrant and related documents. Another police officer gave directions to Garage 1 in the mistaken belief it was Garage 8.

[14] Earlier that day the offender was party to discussions in the garage area of the unit complex about a drug deal in which Tan Chung, an associate of the offender, was involved with three other men. These men also discussed an existing drug debt where Chung owed money to one of the men after that man had supplied him with drugs the previous day. The men left the garage shortly before police arrived. The offender and Chung remained. They were inside Garage 1, the door to which was open when police arrived. Three other men were inside Garage 8 behind a closed mesh door.

[15] Constable Crews and Detective Senior Constable Roberts walked towards Garage 1, mistakenly believing it was Garage 8. Other officers, also in civilian clothes, were close behind. Uniformed police were further behind, including the officer tasked with recording the execution of the search warrant. No officer had a firearm drawn. Police (including Constable Crews) signalled their approach to Garage 1 by announcing they were police a number of times.

[16] Detective Senior Constable Roberts then heard Constable Crews, who was the only police officer in front of him, yell out, 'Gun, he has a gun'. He then saw the offender walking out of Garage 1 in a crouched position holding a pistol which he was pointing in various directions, including in the direction of police. The offender then started moving towards the police. Police were unaware that Chung was hiding in Garage 1 or that there were other men in Garage 8.

[17] Constable Crews and Detective Senior Constable Roberts again identified themselves as police and directed the offender to put down the gun."

11 At this stage, according to the agreed facts, Detective Senior Constable Roberts was about four to five metres from the Respondent and Constable Crews was closer still. The garage area was well lit. The Respondent would have had a clear view of the approaching police officers, in particular, Constable Crews who was holding a folder of papers only. The sentencing Judge continued at [18]-[23]:

"[18] What followed was a sequence of five shots fired from three guns in the space of seconds. First, the offender discharged his pistol (later confirmed to be a Bryco Arms pistol loaded with .22 gauge ammunition) at Constable Crews which penetrated the soft tissue of his left upper arm. Constable Crews then discharged three shots in quick succession - effectively in the process of drawing his weapon after he had been shot by the offender. Ballistics later confirmed the shots fired by Constable Crews were discharged in random angulations to the ground. Detective Senior Constable Roberts, who had retreated with other police rearwards behind a side wall, then drew his weapon which he discharged at the offender. Ballistics later confirmed that the single shot from his weapon struck Constable Crews in the neck. This was a fatal wound. Detective Senior Constable Roberts told investigating police that the shot was not a carefully aimed shot, however, at the time he believed that his firearm was pointed at the offender who he was attempting to hit. All three weapons were later confirmed to be in working order.

[19] Immediately after Detective Senior Constable Roberts fired the shot he saw Constable Crews on the ground bleeding from the head. Constable Crews was later transferred to hospital by ambulance. Death was pronounced at 12.15 am the following morning.

[20] While Detective Senior Constable Roberts' attention was focused on the welfare of Constable Crews as he was lying prone in the open garage area, the other police officers maintained their position behind cover in the garage. Detective Senior Constable Roberts then saw the offender trying to use his firearm which appeared to be jammed, after which he picked up the battering ram from where it had been dropped and simulated its use as a gun by pointing it towards the officers, including Detective Senior Constable Roberts.

[21] The offender (and Chung) then retreated into the garage and eventually made their way to the offender's unit via a rear door. Police were not aware that the offender had left the basement and, believing he was still in the garage, made attempts to encourage him to surrender his firearm and present himself. When it was ultimately established that the offender was not in the basement, first aid was rendered to Constable Crews and the basement area was secured.

[22] Both in the garage after the shots were fired, on his way to the unit and once inside the unit the offender asserted repeatedly to Chung that the men were, what he describes as, 'fake police', and that he believed they thought he had money. Chung said he told the offender that the men were in fact police. The offender told his wife that someone was trying to break into the garage, and that he shot the man and he thought he was going to die. It is unclear whether he was aware that his shot had wounded the officer in the arm and unaware that the officer was shot a second time by someone else. Although this is an available inference it is irrelevant for sentencing purposes. It does, however, lend support to the Crown's submission that the atmosphere in the basement was infused with considerable tension and confusion, and that the exchange of shots were fired in very quick succession with Constable Crews falling to the ground injured in the process.

[23] The offender emptied the twelve bullets from the pistol and placed the magazine into the drain of the bathroom and placed the pistol on the veranda. At some stage he barricaded himself and the other occupants of the unit inside by placing furniture against the door. Police negotiators contacted him and negotiated his surrender. He was arrested and conveyed to Bankstown Police Station together with Chung and the other occupants of Garage 8 who were also arrested."

12 The sentencing Judge referred to matters raised by the Respondent in his recorded interview with police. The Respondent acknowledged that he was involved in a drug deal that evening. Her Honour said at [29]:

"The offender agreed to participate in a recorded interview after his arrest in the course of which he said that he and Chung went to the garage that evening to smoke some heroin. The offender said that at the time of the incident Chung was organising a drug deal involving eight ounces of cocaine. In the agreed facts it is said that the offender falsely claimed to police that he was not involved in the transaction from which I infer that the offender accepts that he was in fact involved. The extent of his involvement was not the subject of any further elaboration."

13 The Respondent told police of an attempted robbery some two weeks earlier and his obtaining of a firearm as a consequence. The sentencing Judge said at [30]:

"In the interview the offender told police that whilst he was inside the garage he heard a lot of people shouting and screaming and saw two men standing at the entrance to the front of the garage who he believed were there to rob him. Police later confirmed by enquiries independent of the offender and his family that approximately two weeks prior to the shooting he was the victim of an attempted robbery by two masked men armed with bats whilst he was in Garage 8. On that occasion the offender shouted at the men (apparently to ward them off) and they fled, leaving behind a mobile phone which police located during the search of the premises on 8 September 2010 and were able to trace. The offender reported to his wife that the robbers had cricket bats. He told police the robbers had knives. It is not in dispute that the offender obtained the pistol after this incident to protect himself in the event of another robbery. There is no evidence as to whether the robbers were looking for drugs or money or both."

14 Finally, the sentencing Judge recounted, at [31], the Respondent's earlier experience of police executing a search warrant:

"Although the offender also agreed that he was aware from a previous search warrant executed on his premises that police officers engaged in operations of that kind do not always wear police uniform, there is no evidence as to the circumstances in which the earlier warrant was applied for and executed, or when that occurred relative to the shooting."

The Basis of the Respondent's Plea of Guilty to Manslaughter

15 The sentencing Judge recited the basis of the Respondent's plea of guilty to manslaughter at [32]-[34]:

"[32] For the purposes of the sentence proceedings it was the agreed position that the plea of guilty to manslaughter involves the offender accepting that he caused the death of Constable Crews despite the single shot he fired penetrating Constable Crews' upper arm and the fatal shot being fired by another police officer.

[33] The issue of causation was conceded by his acceptance of the proposition that the discharge of the pistol (which caused the wound the subject of the wounding charge) substantially contributed to the exchange of gunfire in the course of which Constable Crews was fatally shot by a fellow officer, and in circumstances where it was reasonably foreseeable that someone in the vicinity of an exchange of gun fire may be fatally (even if inadvertently) shot.

[34] The plea of guilty to manslaughter also entails the Crown accepting the reasonable possibility that the offender genuinely believed that it was necessary to shoot at the person who proved to be Constable Crews in order to defend himself (based as it was on his mistaken belief that the officer was someone who was intent on robbing him and someone who might have posed a serious risk to his safety). It also entails acceptance by the offender that a reasonable person in his position would not have considered that it was necessary to shoot that person in defence of himself or his property."

16 The Respondent's plea of guilty to the s.33(1)(a) offence was touched upon by the sentencing Judge at [35]:

"The plea of guilty to the charge of wounding with intent to inflict grievous bodily harm entails acceptance of the fact that the offender shot at Constable Crews intending to cause him grievous bodily harm and that he wounded him in the process. Given the offender's concession that his response to the presence of men he believed might rob or harm him was not reasonable, self-defence was not available as a defence to that charge."

17 The Crown's acceptance of the Respondent's plea of guilty to manslaughter upon the basis of excessive self-defence was a repeated theme of the sentencing proceedings.

18 In the course of oral submissions, the Senior Crown Prosecutor said (T21.36, 8 March 2013):

"So far as remorse is concerned, and what's in the presentence report, what we submit is this; he has restated to the parole officer that at the time of the offence he felt threatened and that he was going to be killed. That of course is the reason why this is not a murder charge, it's a manslaughter charge. So that is not, we would submit, a mitigating feature, it's the reason why it's a manslaughter charge."

19 The Crown written submissions on sentence included the following proposition (Further Crown Submissions on Sentence, 13 March 2013, page 1):

"The Crown points out that had the accused known that William Crews and the other men were in fact police officers, this would have been a murder case rather than manslaughter. The acceptance of the plea to manslaughter by the Crown is precisely because the accused did not know (or the Crown cannot prove that he did know) that the men were police."

20 At first instance and on appeal, Mr Ledinh, for the Respondent, did not challenge these Crown submissions nor seek to contradict the explanation as to the basis upon which the Respondent had pleaded guilty to manslaughter. As will be seen, this aspect is of significance to the first ground of appeal.

The Respondent's Subjective Circumstances

21 A presentence report was tendered on sentence, with that report providing the basis for findings made concerning the Respondent's subjective circumstances. In addition, the Respondent gave short evidence confined to an expression of remorse.

22 The Respondent was born in Vietnam in 1955 and was aged 55 years at the time of the present offences. He is one of 13 children. He arrived in Australia as a refugee in 1978 and worked as a factory process worker and in manufacturing.

23 The Respondent married in 1982 and had three children, aged between 15 and 26 years at the time of sentence. He and his wife divorced in 1996.

24 The Respondent married again in 2001, with his wife arriving from Vietnam in 2003. The Respondent informed the Probation and Parole officer that he had separated from his second wife after entering custody for these offences.

25 The Respondent's first wife was murdered in 2001 and he thereafter assumed care for his children from that marriage.

26 The Respondent's criminal history included appearances before the Dandenong Magistrates' Court in Victoria in 1999 on charges of theft, in relation to which he was ordered to perform 200 hours' community service and to pay compensation in the sum of $53,918.00. In 2003, the Respondent was sentenced in the Melbourne County Court to 18 months' imprisonment, suspended for two years, upon charges of obtaining financial advantage by deception and receiving stolen goods. In addition, he was ordered to pay compensation in the sum of $293,967.00.

27 On 17 July 2006, the Respondent was sentenced in the Sydney District Court on a charge of supplying a commercial quantity of a prohibited drug, to a term of imprisonment for three years commencing on 14 July 2006 with a non-parole period of 18 months expiring on 13 January 2008.

28 The Respondent had been a user of heroin and crystal methamphetamine from the time of his first wife's death in 2001 and was still using both drugs at the time of the offences. He had been directed by the Probation and Parole Service to address his drug use whilst on parole in 2008-2009, but without success. The presentence report recorded that the Respondent's "overall response to supervision was considered to be superficial as he failed to attend any of the recommended programs, thus failing to address his offending behaviour".

29 The sentencing Judge did not find that there were favourable prospects of rehabilitation (at [63]). Although the Respondent had suffered a stroke in November 2012, the sentencing Judge concluded that neither his health nor his age indicated that his time in custody would be more onerous (at [64]).

30 The sentencing Judge declined to make a finding of special circumstances (at [66]).

31 The sentencing Judge applied a 10 per cent discount to reflect the Respondent's pleas of guilty (at [10]).

32 Her Honour accepted that there was an expression of remorse by the Respondent, but indicated that its weight as a mitigating factor, to a large extent, was overwhelmed by the collective weight of the aggravating features of the offences (at [65]).

Objective Seriousness, Concurrency and Totality

33 For reasons to be considered in greater detail by reference to the first and second grounds of appeal, the sentencing Judge held that both offences were of significant objective seriousness.

34 After identification of the sentences which should attach to the individual offences, the sentencing Judge determined that the sentences should be entirely concurrent. This aspect has given rise to the third ground of appeal.

Ground 1 - The Sentencing Judge Erred in the Assessment of the Objective Seriousness of the Manslaughter Offence

Submissions of the Parties

35 The Crown accepted that the sentencing Judge had addressed correctly the pertinent features that informed the objective seriousness of the crime of manslaughter. However, challenge was made to the mechanism by which the sentencing Judge determined that this case did not fall within the worst case category.

36 The Crown relied upon s.21A(2)(a) Crimes (Sentencing Procedure) Act 1999 as a factor bearing upon the objective seriousness of the Respondent's offences. Section 21A(2)(a) provides:

"(2) Aggravating factors

The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

(a) the victim was a police officer, emergency services worker, correctional officer, judicial officer, council law enforcement officer, health worker, teacher, community worker, or other public official, exercising public or community functions and the offence arose because of the victim's occupation or voluntary work, ..."

37 The sentencing Judge considered whether s.21A(2)(a) required knowledge or belief on the part of an offender that the victim fell within one of the nominated categories, in this case, a police officer exercising public functions with the offence arising because of the victim's occupation.

38 In reasoning which is not challenged in this Court, her Honour ruled that knowledge or belief that the victim fell into one of the designated categories was not essential to attract s.21A(2)(a), with that statutory aggravating factor capable of applying if it was reasonably foreseeable to the offender that the victim fell into such a category. The sentencing Judge said at [52]-[53]:

"[52] As I see it, accepting as I must that the offender might actually have believed that the police officers were robbers (indeed, even accepting that he actually held that belief), I am also entitled to find that he could equally have reasonably foreseen that men approaching him in the basement car park might not be robbers. This conclusion is open since it appears to have been conceded by him in the statement of agreed facts that he heard the men announce that they were police but because he thought they were robbers pretending to be police, he obtained his pistol and fired it at one of them without ascertaining whether they were in fact police.

[53] In the result, I propose to take into account s 21A(2)(a) as an aggravating factor in the assessment of objective seriousness, not because the offender knew or believed that Constable Crews was a police officer, but because he ought reasonably to have foreseen the possibility that he might be. Whilst the feature of aggravation put in this way is of slightly less weight than were he to have been actually aware that the man he shot at was a police officer, it does aggravate the objective seriousness of both offences to a significant degree."

39 In support of the first ground of appeal, the Crown contended that the sentencing Judge fell into error in the underlined portion of [57] set out hereunder:

"[57] In conclusion, I accept that the offender was unaware that Constable Crews was a police officer when he shot him and that, although he did not fire the shot that killed Constable Crews, he caused his death. I also accept that when he discharged the pistol that caused his death and the wounding he had a genuine belief (entirely misplaced) that he needed to defend himself against a perceived threat of harm. Notwithstanding those findings, the circumstances in which the offences were committed, including the aggravating factors to which I have referred, render both offences objectively serious. I am not persuaded, however, that either offence is in the worst category. It would have been otherwise were the offender to have shot at Constable Crews intending to inflict grievous bodily harm knowing or believing he was a police officer, or were he with that same state of awareness to have pleaded guilty to manslaughter on the basis that Constable Crews was killed by his unlawful and dangerous act in shooting at him."

40 The Crown submits that, to the extent that the sentencing Judge used the absence of knowledge or belief by the Respondent of the victim being a police officer as the basis to reduce the perceived seriousness of the offence of manslaughter, error was demonstrated. Had the Respondent known or believed that the victim was a police officer, the Crown submitted that he would not have been able legitimately to rely upon an entirely misplaced but genuine belief that he needed to act as he did to defend himself from a perceived harm. In these circumstances, the appropriate charge would have been murder rather than manslaughter.

41 In approaching this issue in this way, the Crown submitted that the comparison of possible scenarios referred to at [57] of the remarks on sentence involved error in accordance with the principles in The Queen v De Simoni [1981] HCA 31; 147 CLR 383 at 389.

42 To the extent that the sentencing Judge had evidently assessed the seriousness of the manslaughter offence by factoring in this distinction, it was submitted there would of necessity had been some mitigation of the assessment of objective seriousness. The apparent point of distinction introduced a hierarchy into the assessment between the two possible scenarios that operated in an impermissible way in favour of the Respondent. By factoring into the range of offending, a circumstance that was outside the scope of the offence, it was submitted that the sentencing Judge had reduced erroneously the objective seriousness of the manslaughter offence.

43 As a result, the Crown submitted that the Respondent's manslaughter offence was assessed as being at a lower level of objective seriousness than its true position.

44 Submissions advanced for the Respondent did not seek to challenge this analysis, nor the suggested error which the Crown asserted had been revealed. Rather, the submission concentrated upon the discretionary nature of an assessment of objective seriousness.

Decision

45 In imposing sentence, a Judge is entitled to consider all the conduct of the offender, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted conviction for a more serious offence: The Queen v De Simoni at 389 (Gibbs CJ).

46 The sentencing proceedings were conducted upon the basis that what would otherwise have rendered the Respondent liable to conviction for murder ought be reduced to manslaughter as the Crown could not negative the Respondent's belief that his conduct was necessary to defend himself, although the conduct was not a reasonable response in the circumstances as he perceived them: s.421 Crimes Act 1900. In these circumstances, the Respondent was guilty of manslaughter and the Respondent's plea was approached upon this basis.

47 If the Respondent had known or believed that he was shooting at a police officer, the basis upon which he was rendered liable to conviction for manslaughter, and not murder, would have been removed.

48 If the Respondent stood for sentence for the murder of a police officer exercising public functions with the offence arising because of the victim's occupation, the maximum penalty would have been imprisonment for life: s.19A(1), (3). A standard non-parole period of 25 years would have applied: s.54A(1); Item 1A, Table of Standard Non-Parole Periods, Crimes (Sentencing Procedure) Act 1999. The provision permitting a mandatory life sentence for the murder of a police officer contained in s.19B Crimes Act 1900 could not apply to the Respondent's case as it extends only to offences committed after 23 June 2011.

49 Claims of breaches of the De Simoni principle occur from time to time in the context of the escalating statutory scheme for assault and wounding offences in the Crimes Act 1900, where it is said that a sentencing court has taken into account, as an aggravating factor, a circumstance that would warrant conviction for a more serious offence. A sentencing court is entitled to consider all the conduct of the offender, but cannot take into account, as an aggravating factor, circumstances which would have warranted conviction for a more serious offence: McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 557 [34].

50 The De Simoni principle would be breached as well if, for example, the sentencing court took into account the absence of grievous bodily harm in assessing the objective seriousness of an offender for an offence of assault occasioning actual bodily harm.

51 The sentencing of offenders for public justice offences lying within the statutory hierarchy of offences contained in Part 7 Crimes Act 1900 has also given rise to breaches of the De Simoni principle: R v Mobbs [2005] NSWCCA 371 at [30]-[33]. This Court has held that in assessing the objective seriousness of an offence of influencing a witness under s.323(a) Crimes Act 1900, it was wrong to have regard to the absence of a feature (the absence of threats) which, if it were present, would constitute a different and more serious offence of threatening to cause injury or detriment to a person intending to influence a person as a witness contrary to s.322(a) Crimes Act 1900: R v Burton [2008] NSWCCA 128 at [66], [89]-[90].

52 We are satisfied that error of this type has been demonstrated in this case. For the purpose of assessing the objective seriousness of the Respondent's crime of manslaughter, it was erroneous to have regard to the absence of a factor which, if it existed, would have rendered the Respondent guilty of murder. In this way, an extraneous or irrelevant consideration has affected the sentencing decision: House v The King [1936] HCA 40; 55 CLR 499 at 505.

53 An additional difficulty arises in the remarks on sentence at [57], where reference is made to a different approach being available if the Respondent had "pleaded guilty to manslaughter on the basis that Constable Crews was killed by his unlawful and dangerous act in shooting at him". This distinction had not been adverted to at the sentencing hearing. As mentioned in the course of argument before this Court (T3-4, 31 July 2013), it is difficult to see how the act of shooting at a police officer with intent to inflict grievous bodily harm could be characterised merely as an unlawful and dangerous act for the purpose of the law of manslaughter. This aspect is secondary to the Crown's principal complaint that a breach of the De Simoni principle has occurred in this case.

54 The Crown has demonstrated error in the finding of reduced objective seriousness by reference to an impermissible factor. Accordingly, the first ground of appeal is made good.

Ground 2 - The Sentencing Judge Erred in Failing to Sentence in Accordance With the Finding as to the Objective Seriousness of the Wounding With Intent Offence

Submissions of the Parties

55 The sentencing Judge made a finding that the s.33(1)(a) offence (which carried a standard non-parole period of seven years) fell within the mid-range of offending. Her Honour said at [58]:

"To the extent that it is necessary to appoint the wounding charge within a range of offending because of the standard non-parole period that attaches to that offence, I am satisfied that it falls within the mid range of offending. Although the offender did not rely in submissions upon his mistaken belief that the police were robbers to ameliorate the seriousness of the wounding charge, it seems to me that some allowance should be made in the assessment of objective seriousness for that offence for the Crown's concession that his belief that the men were robbers was genuine (or that the Crown could not prove that it was not). Neither evidence nor submissions were directed to the nature of the wound and the extent of medical attention that would have been necessary to treat it. However, viewed from the limited perspective of the wound being to the inner aspect of Constable Crews' arm and measuring two millimetres in diameter, I am unable to conclude that the wound was serious. What justifies a finding of mid range offending is that a gun was used accompanied by an intention of causing grievous bodily harm, aggravated by the statutory factors to which I have referred."

56 The Crown did not seek to challenge this finding. Rather, the Crown submitted that it was difficult to reconcile the non-parole period and head sentence fixed for this offence with the finding of objective seriousness and other factors operating on sentence for this crime.

57 In circumstances where there was a finding that the offence lay within the mid-range of offending, and where there was little operating subjectively in favour of the Respondent apart from the 10 per cent discount for his plea of guilty and a finding of remorse with limited effect, it was submitted that the fixing of a head sentence of six years and three months with a non-parole period of four years and nine months did not reflect the findings otherwise made by the sentencing Judge.

58 The Crown noted that no finding of special circumstances had been made and thus no adjustment had been made to the statutory ratio between the non-parole period and the head sentence.

59 Whilst recognising the need to avoid erroneous reliance upon the standard non-parole period in breach of the principles in Muldrock v The Queen [2011] HCA 39; 244 CLR 120, the Crown submitted that the significance of the standard non-parole period in this case was greater than in cases where an offender has a stronger subjective case, so that greater weight ought to have been placed upon the standard non-parole period as a statutory guidepost on sentence: AB v R [2013] NSWCCA 160

60 The Crown pointed to the judgment in Muldrock v The Queen at 132 [29], where the Court observed that the obligation to record reasons in s.54B(4) Crimes (Sentencing Procedure) Act 1999 required a sentencing Judge to identify the facts, matters and circumstances which the Judge concludes bear upon the judgment that is reached upon the appropriate sentence to be imposed. The Crown submitted that the remarks on sentence revealed a contrast between the myriad of factors to support the finding of mid-range offending with few factors which may dilute the significance of the standard non-parole period as a marker or guidepost on sentence. Viewed in this way, the Crown submitted that the sentencing discretion miscarried with respect to this offence with the sentence imposed being inconsistent with the finding of objective seriousness.

61 The Respondent submitted that the sentence imposed for this offence lay within the proper exercise of discretion of the sentencing Judge and that no error had been demonstrated.

Decision

62 In approaching this ground of appeal, it is necessary to keep in mind the confines of the permissible use of the standard non-parole period in view of the decision in Muldrock v The Queen. The standard non-parole period and the maximum sentence are two legislative guideposts, with the objective seriousness of an offence to be assessed wholly by reference to the nature of the offending: Muldrock v The Queen at 132 [27].

63 There is force in the Crown submission that the standard non-parole period may be a more significant factor on sentence of an offender where there is little operating in the offender's favour on sentence. Its significance in a particular case may vary. In Muldrock v The Queen, it was said that the standard non-parole period said "little about the appropriate sentence for this mentally retarded offender and this offence": Muldrock v The Queen at 133 [32]. In other cases, its significance may well be greater: AB v R at [51]. The present case falls into the latter category.

64 The Crown submission, in effect, is that greater weight should have been given in this case to the standard non-parole period attaching to the s.33(1)(a) offence.

65 This Court has, on more than one occasion, expressed the need for caution where a ground of appeal seeks to challenge the weight that is given to a particular factor on sentence: R v Baker [2000] NSWCCA 85 at [11]; Yang v R [2012] NSWCCA 49; 219 A Crim R 550 at [25].

66 It has been suggested that a ground asserting that a particular feature has not been given sufficient regard or sufficient weight by a sentencing Judge is, in truth, a particular of a ground asserting that the sentence is manifestly excessive (or inadequate), with the only way of testing the proposition being to examine the sentence ultimately imposed, with such an approach leading to consideration of the outcome, and not process: Hanania v R [2012] NSWCCA 220 at [33] (Button J, Hoeben JA and Johnson J agreeing).

67 In this case, the finding of objective seriousness (mid-range offending), and the very limited nature of other matters to be taken into account as part of the instinctive synthesis, suggests error in the sentencing outcome given the non-parole period and head sentence imposed, where the statutory guideposts laid down a standard non-parole period of seven years and a maximum sentence of 25 years' imprisonment.

68 In a case such as this, it may be said that the standard non-parole period has greater significance, and that the reasons required under s.54B(4) should articulate a basis upon which the ultimate sentencing outcome may be understood in the context of these statutory guideposts. The reasons in this case do not assist in understanding the sentence imposed for the s.33(1)(a) offence against the finding of mid-range offending.

69 A means of testing this ground of appeal is to look at the sentence ultimately imposed, in accordance with the approach suggested in Hanania v R. In this way, this ground of appeal overlaps with the claim of manifest inadequacy in the fourth ground.

70 We prefer to approach this ground as a submission in support of the fourth ground. The ground does not require further separate consideration.

 

Ground 3 - The Sentencing Judge Erred in the Approach to the Totality Principle in Determining that the Overall Criminality Could be Comprehended by the Sentence for Manslaughter

Submissions of the Parties

71 The Crown submitted to the sentencing Judge that there should be a measure of accumulation as between the two sentences. Her Honour rejected this submission, explaining the approach taken at [69]:

"After having given careful consideration to the principled approach in the authorities, I do not propose to order that the sentences be partially accumulated. I have come to that conclusion for the following reason. For sentencing purposes, I am invited to accept that the offender caused the death of the Constable Crews when the shot fired by Detective Senior Constable Roberts penetrated his neck and that, literally seconds before, the offender had inflicted a gunshot wound. Although the consequences of the offender's criminal act are different (in that the bullet he fired caused a wounding while the bullet he caused to be fired caused a death), the same criminal conduct is common to both offences. Detective Senior Constable Roberts has no criminal liability for firing the fatal shot. In these circumstances I am satisfied that the total criminality constituted by his offending can be comprehended by the sentence for the manslaughter, which I accept is the more serious offence by reason of the loss of life."

72 In this Court, the Crown submitted that error had been demonstrated and that this Court should proceed to resentence the Respondent, allowing for "a modest degree of accumulation" to reflect the different serious offending contained within the two offences.

73 The Crown submitted that there were two discrete offences committed that occurred as a result of interwoven but distinct acts. The Respondent fired at Constable Crews with intent to cause grievous bodily harm thereby causing a wound to his arm. This was a serious offence and this was complete once the wounding occurred. Within seconds, a number of further acts occurred, including Constable Crews firing three times and injuring no one and Detective Senior Constable Roberts firing once in the direction of the Respondent, but with the tragic result that Constable Crews was fatally shot in the neck. The sentencing Judge expressly found that Detective Senior Constable Roberts had no criminal liability for firing the fatal shot, so that it was the Respondent who bore the entire criminal liability for the shot that caused the death of Constable Crews.

74 The Crown submitted there were separate acts and separate consequences for which the Respondent was entirely responsible. To the extent that the sentencing Judge considered that the criminal conduct was common to both offences, the Crown submitted that her Honour omitted to acknowledge that there were in fact not just different consequences, but also different acts, albeit that Detective Senior Constable Roberts was responding to the same bullet being fired by the Respondent that caused the wounding.

75 The Crown submitted that the nature and seriousness of the wounding offence were such that the sentence for manslaughter could not sufficiently comprehend the criminality involved in the s.33(1)(a) offence.

76 It was submitted for the Respondent that the two offences formed part of a single episode of criminality with common factors, so that it was open to the sentencing Judge to impose entirely concurrent sentences in the circumstances of the case.

Decision

77 Questions of concurrency and accumulation are, subject to the application of established principle, discretionary: R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 at 67 [7].

78 Sentences are not to be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct. Rather, the question to be asked is - can the sentence for one offence encompass the criminality of all the offences?: R v Jarrold [2010] NSWCCA 69 at [56].

79 If the sentence for one offence can comprehend and reflect the criminality of the other, then the sentences ought to be concurrent, otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the totality of the two offences: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27]. If this is not the case, the sentence should be at least partially cumulative otherwise there is the risk that the total sentence will fail to reflect the total criminality of the two offences. This is so, regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality: Cahyadi v R at 47 [27]; R v XX [2009] NSWCCA 115; 195 A Crim R 38 at 48-49 [52].

80 Public confidence in the administration of justice requires sentencing courts to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 164-165 [18].

81 We accept the Crown's submission in support of this ground of appeal. Each of the Respondent's offences was a serious one carrying a maximum penalty of 25 years' imprisonment. The sentencing Judge determined that each offence was objectively serious. Although there was but a short period of time that passed between the offences, they were distinct offences caused by different bullets causing very different consequences.

82 We accept that the manslaughter offence was the more serious offence in the circumstances, which required a lengthier sentence having regard as well to the offence on the Form 1.

83 The nature and seriousness of the wounding offence was such that the sentence for manslaughter could not sufficiently comprehend the criminality involved in the s.33(1)(a) offence. A measure of accumulation was necessary.

84 The Crown has made good the third ground of appeal.

Ground 4 - The Sentences Are Manifestly Inadequate

Submissions of the Parties

85 The Crown submitted that the errors asserted in the first three grounds of appeal would feed in to the fourth ground of appeal, thereby fortifying a conclusion that the sentences imposed were manifestly inadequate.

86 Accepting the unusual circumstances of this case and the absence of other sentencing decisions which may assist the sentencing process, the Crown submitted that the circumstances of these offences were such that the sentences ultimately imposed were manifestly inadequate.

87 The Crown submitted that the Respondent was in his garage area, having just been engaged in some capacity in a drug deal involving cocaine with other persons and that he was in possession of an unauthorised firearm. The offences occurred only about one year after the Respondent's parole period had expired on a sentence for supplying a commercial quantity of a prohibited drug. The victim was a police officer acting in the execution of his duty. The sentencing Judge accepted that this was an aggravating feature for both offences. The victim's firearm was holstered. Due warning was rendered to the Respondent with the approaching police officers identifying themselves clearly as police. None were disguised. Within the range of scenarios of persons acting in misconceived self-defence, the Crown submitted that this must be regarded as a more serious example than that found by the sentencing Judge.

88 The Crown pointed to the need for the sentence on the manslaughter count to take into account as well the offence on the Form 1 which was independently serious.

89 It was submitted for the Respondent that the Crown had not made good the claim of manifest inadequacy in the circumstances of the case.

Decision

90 A claim of manifest inadequacy requires the Court to be satisfied that the sentences imposed at first instance were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].

91 In this case, express errors have been established in accordance with the grounds of appeal which have been addressed. These findings may be called in aid by the Crown to support and explain how sentences were imposed which are said to be manifestly inadequate.

92 The police officers in the present case, including Constable Crews, were acting in the lawful discharge of their duty to execute a search warrant on the premises in question. The police officers approached slowly and were not disguised. Detective Senior Constable Roberts was holding a battering ram. Constable Crews was holding a folder containing papers. The situation was markedly different to the Respondent's earlier experience where masked men had apparently approached holding cricket bats. Even then, the masked men fled when challenged by the Respondent. It was not unusual that police executing a search warrant were wearing plain clothes. The Respondent was aware from his own experience that police executing a search warrant may be dressed in plain clothes.

93 A loud announcement was made indicating that they were police and this was heard by the Respondent. The Respondent had just been involved in activities related to drug supply. He was carrying an unauthorised loaded firearm at that time and in that context. The Respondent crouched holding the pistol in the firing position. No police officer was holding a firearm at that time. The area was well lit. Constable Crews was less than four to five metres away from the Respondent, who would have had a clear vision of him holding only the folder of papers.

94 Once again, police identified themselves and called upon the Respondent to drop his weapon. The Respondent chose to resort to immediate use of the firearm, shooting it at Constable Crews with intent to inflict grievous bodily harm. What happened thereafter was entirely predictable, and involved understandable acts where police officers in the execution of their duty, having loudly and clearly announced their presence, came under fire from the Respondent in the manner which occurred.

95 This was a most serious example of the crime of manslaughter. For reasons explained in the context of the first ground of appeal, the fact that the Respondent did not know or believe that the persons in the garage were police officers is not relevant to an assessment of the objective gravity of the manslaughter offence.

96 The sentencing Judge found that the aggravating factor in s.21A(2)(a) operated as it was reasonably foreseeable that the persons were police officers (see [38] above). This approach is consistent with the common law principle that where an offender knows or ought to have known that the victim was discharging a public duty, such as a police officer acting in the execution of duty, this will operate as an aggravating factor on sentence and will attract as well considerations of specific and general deterrence: Director of Public Prosecutions (Vic) v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 at 314-315 [50]-[52].

97 It was accepted by the Crown that the Respondent did not know that the men in the garage were police officers, as if he did there would be no excessive self-defence operating to render the charge of manslaughter appropriate in lieu of the charge of murder. That does not mean that it could not be taken into account that the Respondent "ought to have known" that the men were police officers. There is nothing inconsistent in taking this into account as an aggravating feature of the offence of manslaughter and it is worth reiterating that the approach of the sentencing Judge in finding that the aggravating factor in s.21A(2)(a) applied because the Respondent "ought reasonably to have foreseen the possibility" that Constable Crews was a police officer was not challenged in this Court.

98 This Court has emphasised the gravity of crimes committed against serving police officers and the need for specific and general deterrence in the imposition of sentences.

99 In R v Hamilton (1993) 66 A Crim R 575, Gleeson CJ (Hunt CJ at CL and Ireland J agreeing) said at 581:

"... I should make it clear that offences against s 33B, which make it unlawful to use an offensive weapon or instrument with intent to prevent lawful apprehension, are regarded by the Court extremely seriously. It is incumbent upon the Court, in dealing with offences of this nature, to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task. The risks that were run by the police officers who were involved in the present case were substantial."

100 In Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 2 of 2002) [2002] NSWCCA 515; 137 A Crim R 196 at 203-204, Spigelman CJ (Wood CJ at CL, Grove, Sully and James JJ agreeing) cited this passage from R v Hamilton. In the course of that judgment, Spigelman CJ said at 203 [22]:

"Offences involving assault of police officers in the execution of their duty are serious offences requiring a significant element of deterrence in the sentences to be imposed. The community is dependent to a substantial extent upon the courage of police officers for protection of lives, personal security and property. The Courts must support the police in the proper execution of their duties and must be seen to be supporting the police, and their authority in maintaining law and order, by the imposition of appropriate sentences in cases where assaults are committed against police."

 

101 The Chief Justice continued at 203-204 [26] and [28]:

"[26] As the facts of the cases summarised for the Court in the course of the present application indicate, significant risks are run by police officers throughout the State in the normal execution of their duties. The authority of the police, in the performance of their duties, must be supported by the courts. In cases involving assaults against police there is a need to give full weight to the objective of general deterrence and, accordingly, sentences at the high end of the scale, pertinent in the light of all the circumstances, are generally appropriate in such cases.

...

[28] The importance of supporting the police has been recognised by the Parliament in the recently enacted s21A, which identifies in s21A(2)(a), as the first of the list of aggravating factors, the fact that the victim was a police officer or one of a number of other persons performing public functions. This will be of significance for other offences against police, but the offence presently under consideration is, of course, specifically concerned with police."

102 These statements were made in the context of an application for a guideline judgment for the offence of assault police. The principles expressed are clearly apt to a case such as this, where greater violence is used (with fatal consequences) against a police officer in the execution of his duty.

103 The sentencing Judge was referred to, and applied, the following statement by Spigelman CJ (Hidden and Buddin JJ agreeing) in R v Penisini [2004] NSWCCA 339 at [20]:

"The courts will, and do, give great weight to the protection of members of the police force by reason of the fact that in the course of their duties, they are called upon to place themselves in danger and do so for the benefit of the community at large. That is why the courts have always accepted that the fact that the victim was a police officer is a substantially aggravating factor."

104 These considerations are at the forefront of sentencing decisions for offences such as those committed by the Respondent.

105 The Form 1 offence of possession of a prohibited firearm, as the sentencing Judge acknowledged at [42]-[43] of the remarks on sentence, required greater weight to be given both to the need for personal deterrence and to the community's entitlement to exact retribution, and in that way to increase the sentence that would otherwise be appropriate for the manslaughter offence: Re Attorney General's Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) [2002] NSWCCA 518; 56 NSWLR 146 at [39]-[42].

106 Although no separate and distinct penalty may be imposed for the Form 1 offence, a "longer, and in some cases significantly longer" sentence may be imposed for the principal offence to which the Form 1 attaches, so as to demonstrate the greater need for personal deterrence and retribution: Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 at [22]-[23].

107 In approaching the Form 1 matter in this case, it is necessary to keep in mind principles such as those summarised in R v AZ [2011] NSWCCA 43; 205 A Crim R 222 at 234 [73]:

"The legislature views possession of such an item seriously. The policy of the legislature evinced by the enactment of the offence in s 7(1) is to deter and punish possession of firearms per se: R v Krstic [2005] NSWCCA 391 at [14]. The courts must seek to implement the legislative policy to control the possession of firearms in the community 'by honest citizens and not simply to disarm the criminally minded' R v Tolley [2004] NSWCCA 165 at [53]. As it happens, the Respondent was amongst the ranks of 'the criminally minded' through his drug supply activities."

108 It might be said that the present Respondent was also amongst the ranks of "the criminally minded", given the circumstances in which he chose to arm himself on this occasion.

109 The fact that the pistol was loaded bore upon the seriousness of the Form 1 offence. The fact that the Respondent claimed that he possessed the loaded pistol for his own protection was not a matter of any real mitigation since the policy of the legislature was to act as a deterrent and to punish possession of a pistol per se. The rule of law, and the authority of courts, depend upon the proposition that persons do not, by illegal means, take their protection into their own hands: R v Thalari [2009] NSWCCA 170; 75 NSWLR 307 at 320-321 [88].

110 Considerations such as these pointed to the seriousness of the Form 1 offence, so that the taking into account of that matter called for a significantly longer sentence being imposed for manslaughter.

111 The s.33(1)(a) offence was itself objectively grave, with the issue canvassed in the context of the second ground of appeal indicating that a lengthier sentence was warranted on that count.

112 As noted earlier, the Respondent had little operating in his favour subjectively. The 10 per cent discount for his pleas of guilty and recognition of a measure of remorse operated in his favour. However, he could not claim the immaturity of youth as a factor in the commission of these offences. In his early 50s, he had served a period of imprisonment for a serious drug supply offence. He had recently completed his parole period. Having not been deterred from crime, he continued to be involved in drug activity and had armed himself, with the tragic and disastrous consequences which came to pass on the evening of 8 September 2010.

113 We are satisfied that the sentences imposed were manifestly inadequate so that the fourth ground of appeal has been made good.

Discretionary Factors and Resentencing

114 If error was demonstrated, Mr Ledinh submitted that the Court, in the exercise of discretion, should not resentence the Respondent.

115 It has been said that the primary purpose of Crown appeals against sentence under s.5D Criminal Appeal Act 1912 is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, so that this Court, in the exercise of its jurisdiction under s.5D, had a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1]-[2]. This discretion may be exercised for reasons other than double jeopardy: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 24 [92], 25 [95], 33 [150].

116 In support of the exercise of discretion, Mr Ledinh sought to emphasise the level of the Respondent's remorse. No affidavit or other evidentiary material was placed before the Court on the question of discretion or resentencing.

117 We do not consider that there is any discretionary basis for this Court to decline to intervene and to resentence the Respondent. The issues ventilated in this appeal include matters of principle, and the conclusion has been reached that substantially different sentences ought be imposed upon the Respondent. It is in the interests of the administration of justice that the Court proceeds to resentence the Respondent.

118 The objective gravity of the manslaughter offence is substantial and greater than that characterised by the sentencing Judge. There are limited subjective factors to be taken into account in the Respondent's favour. In addition, the nature and circumstances of the offence and the identity and occupation of the victim require a significant element of specific and general deterrence in the sentence to be passed. Further, the serious offence included on the Form 1 must be reflected in the sentence imposed.

119 For the offence of manslaughter, taking into account the Form 1 matter, and before application of the 10 per cent discount for the plea of guilty, a head sentence of 18 years' imprisonment is appropriate.

120 Allowing for the 10 per cent discount, the Respondent will be sentenced on this count to a term of imprisonment of 16 years and 2 months.

121 For the offence of wounding with intent to cause grievous bodily harm, before application of the 10 per cent discount for the plea of guilty, a sentence of imprisonment for 9 years is appropriate.

122 Allowing for the 10 per cent discount (and with some rounding), the sentence imposed for the s.33(1)(a) offence will be one of imprisonment for 8 years and 1 month.

123 Having regard to relevant principles with respect to accumulation, concurrency and totality, there ought be accumulation of 1 year.

124 Subject to what follows concerning the effect of accumulation, we agree with the conclusion of the sentencing Judge that special circumstances are not demonstrated in this case so as to warrant any adjustment of the ratio between the non-parole period and head sentence for each offence.

125 As a different view has been formed in this Court on the issue of accumulation, it is necessary to consider whether this additional factor warrants a finding of special circumstances and a modification in the statutory ratio: Hejazi v R [2009] NSWCCA 282; 217 A Crim R 151 at 157 [35]-[36].

126 A minimum custodial component of 13 years is proposed against the overall effective sentence of 17 years and 2 months. That represents 74.7 per cent of the overall term. No finding of special circumstances is required. The sentences to be imposed upon the Respondent will see a significant period of conditional liberty being available upon the expiration of the effective non-parole period. In our view, no lesser effective non-parole period than one comprising 13 years is appropriate as the period of mandatory custody for these crimes having regard to all the purposes of punishment: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 717 [59]; Hejazi v R at 157 [36].

127 The Respondent has been in custody since 8 September 2010 and it is appropriate that the first operative sentence date from that day.

128 The Court makes the following orders:

(a) Crown appeal allowed;

(b) sentences imposed in the Supreme Court on 15 March 2013 are quashed;

(c) in their place,

(i) for the offence of wounding with intent to cause grievous bodily harm, the Respondent is sentenced to imprisonment comprising a non-parole period of 6 years commencing on 8 September 2010 and expiring on 7 September 2016 with a balance of term of 2 years and 1 month commencing on 8 September 2016 and expiring on 7 October 2018,

(ii) on the count of manslaughter, and taking into account the offence on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of 12 years commencing on 8 September 2011 and expiring on 7 September 2023, with a balance of term of 4 years and 2 months commencing on 8 September 2023 and expiring on 7 November 2027,

 

(d) the earliest date upon which the Respondent will be eligible for release on parole is 8 September 2023.

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Decision last updated: 28 August 2013