R v Bolt - [2001] NSWCCA 487

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Bolt [2001] NSWCCA 487

FILE NUMBER(S):
60643/01

HEARING DATE(S): 27/11/2001

JUDGMENT DATE: 13/12/2001

PARTIES:
Regina
Dallas Clint Nhummet Bolt

JUDGMENT OF: Sheller JA Dowd J Greg James J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70030/01

LOWER COURT JUDICIAL OFFICER: Hidden J

COUNSEL:
Mr RA Hulme- Crown
Mr AC Haesler- Respondent

SOLICITORS:
SE O'Connor- Crown
Sydney Regional Aboriginal Corporation Legal Service- Respondent

CATCHWORDS:
Crown appeal on inadequacy of sentence
Manslaughter
Provocation
Intention to kill
Re-sentencing

LEGISLATION CITED:
Crimes Act 1900
Criminal Appeal Act 1912
Sentencing Act 1989

DECISION:
1. By majority, sentence is quashed; 2. Conviction confirmed; 3. Total sentence of six years imprisonment imposed, from 17 September 2000 to expire 16 September 2006. Non-parole period of three years and six months fixed, to expire 16 March 2004; 4. The Court recommended that within the Corrective Services Classification System, the respondent is to retain his current custodial arrangements and classification for such period as may be appropriate, consistent with his progression through the process of rehabilitation within the Corrective Services system.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF CRIMINAL APPEAL

60643/01

SHELLER JA
DOWD J
GREG JAMES J

13 December 2001

R v Dallas Clint Nhummet BOLT

Judgment

SHELLER JA: I have had the benefit of reading the judgments in draft prepared by Dowd and Greg James JJ. Like Dowd J I do not think the sentence imposed by Hidden J reflects the objective seriousness of the offence committed. Given the accepted degree of provocation I do not think that violence such as that which caused and accompanied the victim’s death can be treated as other than a factor which increases the objective gravity of the offence. Had the respondent with an intent to kill his mother stabbed her once and killed her the offence would objectively have been less serious. I am satisfied with due respect to the sentencing judge that he failed to give weight or sufficient weight to the excessive violence and aggression displayed by the respondent.
For the reasons Dowd J has given I agree with the orders he proposes. To my mind the sentence proposed is the lowest that the circumstances warrant and thereby takes account of the double jeopardy to the respondent which is the result of this appeal.
DOWD J: This is an appeal by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 against a sentence imposed by Hidden J on 31 August 2001 for manslaughter of five and a half years imprisonment in total, with a non-parole period of two and a half years. The trial jury had found the respondent not guilty of murder but guilty of manslaughter. The maximum penalty for a charge of manslaughter is twenty five years imprisonment
The respondent had pleaded not guilty to a charge that on 17 September 2000 at Cambridge Park, he did murder his mother. He had pleaded guilty to manslaughter, but that plea was not accepted by the Crown.
Facts
Prior to the offence, there had been a long and unhappy relationship between the victim and the respondent. The respondent’s parents were heavy drinkers and had had a turbulent relationship, as a result of which the respondent would leave home for periods. On other occasions, he would be ordered from the house, and often lived on the beach or found accommodation in a youth refuge.
A report of the Department of Community Services referred to the deceased’s chronic alcohol abuse and her lack of insight into how her and her husband’s behaviour may have been affecting their children.
On the night of 17 September 2000, there was a gathering for a barbeque at the family home at Cambridge Park, where the respondent’s sister, Nicole, who suffered from mental illness, lived. An argument ensued between the deceased and Nicole, in which the deceased abused her daughter, reducing her to tears. The deceased ordered her daughter out of the home. The daughter was distressed and fearful at the prospect of having nowhere to stay.
The respondent remonstrated with the deceased, protesting that there was no proper reason for Nicole to be thrown out of the home, and that she be allowed to stay. The deceased demanded that the respondent also leave, and she threw Nicole’s belongings and some of the respondent’s belongings out of the house.
A relative at the barbeque offered Nicole and the respondent accommodation at her house. Everyone other than the respondent and the deceased set off in search of a taxi. The taxi would not accommodate the respondent, who was prepared to proceed independently to the proposed home. He went to the deceased’s house to collect his belongings, and was confronted by the deceased. The deceased told the respondent to get out and said:
“What do you want in here, you fuckin’ good for nothing cunt?”
She was at this stage very close to the respondent, poking him in the chest. The respondent lost control, mounted a savage attack, described by Hidden J as “frenzied”, upon the deceased with at least a knife, and possibly two knives. The attack involved the infliction of some twenty five to thirty stab wounds, the deepest of which penetrated from the front to the back of the chest.
The learned Sentencing Judge accepted that the respondent had no recollection of the stabbing, but the post-mortem showed a large number of very heavy and violent knife blows on the deceased.
The respondent called ‘000’ and told the operator that he had killed his mother. The voice on the ‘000’ recording shows a person in a high state of emotion, displaying anger but with an appreciation of what he had done. He said to the operator that he had had enough, and that
“… life made me do it…”
The respondent remained at the scene and surrendered to police. He then and since has said that he had no recollection of the events.
His Honour correctly had regard to the three factors set out by Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 at 144. His Honour also found in that matter, obviously correctly, that the degree of violence was excessive, but then said:
“…. although one wonders how much weight can be given to this factor when the offender has necessarily lost self-control so far as to form the intent requisite for murder”.
I will return to this comment later.
In subjective terms, the respondent has a lengthy criminal history, most of which are Children’s Court matters. The learned Sentencing Judge and this Court have both been supplied with facts of two particularly violent incidents involving the respondent, in which he displayed a considerable measure of aggression, both physical and verbal. The first incident occurred when the respondent was sixteen years of age, and led to him being charged with malicious wounding. The other involved him, at age seventeen, in a violent confrontation with police.
Justice Hidden concluded that the respondent was not a continuing danger to the community, and found the violence which existed which caused the attack on his mother, to have arisen from his family background and his relationship with her, and His Honour considered that the respondent was unlikely to re-offend.
Forensic Psychiatrist, Olav Nielssen, provided a report, which His Honour accepted, opining that the respondent:
“…. is more damaged than dangerous”.
A psychologist who gave evidence, was of the view that there was a need for psychotherapy to assist in the respondent’s anger management.

His Honour acknowledged the need to foster the respondent’s rehabilitation and also acknowledged the evidence before him that the respondent’s history of alcohol and drug abuse needed to be addressed in order to minimise the risk of re-offending.
His Honour found that the process of anger management has been addressed while in custody, following a suicide attempt. The respondent appears to have responded to counselling and has avoided conflict, and has progressed in educational attainments.
His Honour accepted the evidence of remorse demonstrated by the plea of guilty that was entered, and the fact that the trial was only on the issue of provocation.
His Honour found that the evidence of remorse and the plea entitled the respondent to the benefit of a discount, which His Honour quantified at twenty five per cent.
In sentencing, the learned Sentencing Judge said that the appropriate starting point, but for the plea of guilty, would be seven years. His Honour gave a reduction of one and a half years for remorse and plea.
His Honour then found that the community and the respondent would benefit from his being subjected to supervision and parole for a lengthy period. His Honour found special circumstances that were reflected in a non-parole period of two and a half years, out of a total sentence of five and a half years, which results in a non-parole period of less than fifty per cent of the total sentence.
Submissions of Counsel
It was submitted on behalf of the respondent, in both written and oral submissions, including reference to a very considerable number of provocation manslaughter sentences findings, that no error of law had been demonstrated in His Honour’s sentence, and that the Crown had conceded that no specific error of principle has been identified.
Mr Haesler, for the respondent, cited the following passage in R v Wong; R v Leung [2001] HCA 64:
“[A]ppellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons” Wong v Leung [2001] HCA 64 p.58.
It was further put that notwithstanding the seriousness of the offence of manslaughter, that circumstances can vary infinitely: Hill (1980) 3 A Crim R 397 at 402 per Street CJ.
Counsel for the respondent also questioned whether the exercise of His Honour’s sentencing discretion infringed the principle in House v The King (1936) 55 CLR 499 at 507, and further referred the Court to the principles set out in R v Pont [2000] NSWCCA 419 per Greg James J, with whom the other members of the Court agreed, setting out the factors which ought to be taken into account on Crown appeals.
In short, it was submitted on behalf of the respondent that the sentence was not outside the appropriate range, and examination of a large number of cases referred to the Court shows that the sentence was not at the bottom of the range, and it was submitted that His Honour had in fact considered all the factors in assessing the gravity of the crimes.
The excessive provocation was a matter that the learned Sentencing Judge, it was submitted, clearly took into account. It was also put in opposition to the Crown case, that it was axiomatic that the wounds inflicted on the deceased were done with an intent to kill, and that failure to specifically refer to it by His Honour nonetheless created no inference that His Honour sentenced the respondent on a lesser basis.
Rehabilitation was found by Hidden J as a clear societal need, and as a matter to be taken into account in sentencing, and that as this was the respondent’s first custodial sentence, that extensive time in custody could lead to the adoption of a criminal way of life.
In oral submissions, it was put by Mr Haesler that the respondent had achieved a C1 classification under the Corrective Services administration, notwithstanding his fairly short time in custody, and that the consequence of a lengthening of the non-parole period may disturb the present Corrective Services arrangements which worked very well for the rehabilitation of the respondent.
The Crown case on appeal acknowledged the difficult task that the learned Sentencing Judge faced in sentencing the respondent, because of the violent circumstances of the unlawful taking of a human life and the most disturbed and damaged upbringing of the respondent, who accepted responsibility and was genuinely contrite and remorseful, but nonetheless submitted for a provocation manslaughter that the total sentence and the short non-parole period failed to adequately reflect the seriousness of the offence.
It was further put by the Crown that notwithstanding His Honour’s reference to the number of wounds, His Honour did not address the question of the finding of an intention to kill, and this implies that His Honour did not regard it as a significant factor, and that impliedly His Honour said that if there was a loss of self control, the subsequent actions cannot have much bearing on the objective gravity of the offence, apart from the causing of death.
The Crown submitted that His Honour’s reference, to which I have referred above, as saying,
“Although one wonders how much weight can be given to … [excessive violence] when the offender has necessarily lost self-control….”,
that it appears from what His Honour has said, that not enough consideration has been given to the third factor set out in Alexander by Hunt CJ at CL, being the degree of violence or aggression displayed, which when excessive, has the tendency of increasing the objective gravity of the offence.
The difficulty in R v Alexander, a decision against which an appeal was dismissed, is that there are, in the three features to be examined, logical, practical and legal inconsistencies. This however ignores the fact that human nature and human activities are infinitely variable, and the large number of cases to which the Court was referred, demonstrates the extraordinary variation in circumstances leading to the death of the victims of manslaughter.
Clearly, as a matter of logic, the degree of provocation must reduce the objective gravity of the offence, and also the degree of violence employed must increase the objective gravity of the offence.
The fact that there is excessive provocation makes it highly likely that there will be excessive violence displayed by the person who has suffered the loss of self-control, but this is not necessarily so in every case. Excessive provocation may have a tendency to reduce the objective gravity. That does not mean that the Court can ignore that degree of violence or aggression in assessing the objective gravity of the offence. There may be circumstances where the degree of provocation is not great, but the extent of the degree of violence or aggression is great. The converse obviously also applies.
The difficulty with this appeal is that there was both excessive violence and excessive provocation. Both factors apply.
His Honour remarks, to which I have adverted, in my view shows that His Honour did not give sufficient weight to the objective gravity of the offence. I do not however consider that in selecting seven years as a starting point, considering the nature of the provocation, that His Honour thereby committed error that this obliges this Court to intervene on that factor alone.
The extent of the discount, which His Honour quantified at twenty five per cent, having regard to the respondent making the phone call which led to the attendance of the police, the views that he expressed, and the plea factors, when calculated mathematically, the eighteen month reduction from the seven years in fact is a little over twenty one per cent. This discount, taking into account all the factors, was not, in my view, excessive.
As to the relatively short non-parole period, it is clear that His Honour in the findings as to the likelihood of rehabilitation and the need for extensive supervision, correctly expressed both the need of the community and the need of the respondent in assessing the length of the non-parole period. I do not think that the non-parole period imposed by His Honour, although in the circumstances of the seriousness of the offence, is considerably lower than most such terms, and does not in the period of full-time custody before the respondent is eligible for parole, reflect the seriousness of the violence of the attack leading to the manslaughter, but of itself, I would nonetheless consider that that factor alone does not warrant intervention by this Court.
In R v Haughton [2000] NSWCCA 62, Barr J, with whom the other members of the Court agreed, referred to a circumstance which might, on an appeal such as this, call for the exercise of its discretion not to intervene:
“When this Court hears an appeal by the Crown against what is said to be the severity of sentences, the Court is not free to take the course it might, if sentencing at first instance. A residual discretion exists which favours the respondent to any such appeal if the sentence is found to be below the range of sentencing discretion, but not so far below it that the Court considers that it ought to interfere”.
In Pont, Greg James J held at paragraphs 6 to 8 that:
The notice of appeal asserts as the ground of appeal that the sentence "is inadequate". By this ground, I understand that it is intended to assert "error in point of principle" (see per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310) as would amount to "the kind of manifest inadequacy or inconsistency in sentencing standards" (Everett v The Queen (1994) 181 CLR 295 at 300 and Regina v Barbara (CCA, Unreported 24 February 1997) as would warrant the exercise of the exceptional power vested in the Director by s.5D by appealing to invoke the court's function to lay down principles for the governance and guidance of sentencing courts in such circumstances as applied in this case (Griffiths (supra) at 310). That kind of error would be found in the course taken by the primary judge in consequence of such findings of fact as were properly open and made. The appeal does not call for any re-hearing to re-determine findings open on the facts: Histollo Pty Limited v Director-General of National Parks & Wildlife Service (CCA, Unreported 10 December 1998). The appeal is against the exercise of a discretion which recognises that a range of sentences might be appropriate in any case and that judges might legitimately differ in philosophy, approach and result: see Spigelman CJ. in Regina v Jurisic (1998) 45 NSWLR 209 and Kirby P in Regina v Hayes (1987) 29 A Crim R 452.
I understand the ground to assert not merely that there has been disclosed some error of principle such that the sentencing discretion has been improperly exercised even though that error might not be able to be identified (see Cranssen v The King (1936) 55 CLR 509 at 519-520), but that the error contended for is such as to show that the sentence in its duration or nature is so far outside the permissible range of the exercise of a proper discretion as to require the intervention by this court, at least in the absence of matters going to the exercise of the court's well known discretion to refrain from intervening (see eg. Regina v Morrow [1999] NSWCCA 64; Regina v Holder (1983) 3 NSWLR 245 at 225-226; Hayes (supra); Regina v Allpass (1994) 72 A Crim R 561; Regina v Haughton [2000] NSWCCA 62; Regina v Kalache [2000] NSWCCA 2).
On an appeal such as this, the court, in its discretion, may dismiss the appeal and, if upholding it, would ordinarily impose a sentence which might be at the bottom of the range or less than that which ought to have been imposed at first instance: see Kalache (supra); Regina v Webster [1999] NSWCCA 313, provided that, having regard to the necessity to denounce the error, the discretion and the other matters to be taken into account on re-sentencing, it might properly do so”.
In Pont, Greg James J also held that in exercising the Court’s discretion, the Court must have regard to the double jeopardy in which the respondent has been placed (R v Holder (1983) 3 NSWLR 245; and R v Warfield (1994) 34 NSWLR 200). Greg James J in Pont (supra) stated that Crown appeals exist for the correction of errors. His Honour referred to Everett v The Queen (1994) 181 CLR 295 and Griffithsv The Queen (1977) 137 CLR 293, and went on to say that:
“It follows, since the imposition of sentence is individual in effect, that the correction of such errors of general significance will have a specific impact on the respondent. Insofar, however, as the error proceeds from a failure in the sentencing process below and because its correction may have an impact, in the circumstances, of a particularly onerous kind, provided that the error may be properly corrected and the original criminal conduct as well as the leniency with which it has been treated properly denounced, then it is open to the court to avoid occasioning, by the re-sentencing process, consequences which in their effect would be unduly onerous. This is, since the necessity to re-sentence is due to the judicial error, a failure in the process, rather than to any fault of the respondent and, in particular, so as to avoid that failure producing untoward hardship”.

Notwithstanding that I consider that each of the matters of sentencing principle to not of themselves render intervention appropriate, I nonetheless consider that a total sentence of five and a half years, and in particular, the non-parole period of two and a half years, insufficiently reflects the enormity of this offence of manslaughter in the light of the aggression and violence displayed by the respondent.
It is, in an offence such as manslaughter, difficult to talk about a range because of the infinite variety of circumstances in which the offence of manslaughter occurs, and the considerable variation in subjective circumstances that a Court must take into account in sentencing. I think it is inappropriate to talk of a range, as such, in manslaughter, but rather one should consider a range of sentences imposed in cases demonstrating similar circumstances.
I have already adverted to the fact that there is an internal tension created in the factors to be examined in Alexander, and it is clear that the extent of the provocation, to some extent, works against a more severe penalty, whilst at the same time the very severe aggression would persuade a sentencing Court towards a heavier sentence reflecting denunciation of the sentence for which a person has been sentenced.
It is my view therefore, that this Court should intervene to impose a sentence that reflects the objective seriousness of the offence, and the need for punishment of such a violent attack by the respondent upon his mother and taking into account the clear intention to kill by the respondent. I consider the sentence imposed which is the subject of this appeal, is sufficiently outside the range of what is an appropriate sentence in circumstances as to warrant appellate intervention.
I do not consider that the factor of potential prison re-classification is a matter which should affect this Court’s exercise of discretion, except insofar as the Court should indicate in terms of the clear need for rehabilitation, that it appears that the present regime, under which the respondent is kept, is clearly desirable, notwithstanding the re-sentencing that I would propose.
In the circumstances of the double jeopardy to which I have referred, and the need to impose the lowest sentence that the circumstances warrant by an appellate Court, there is limited opportunity in this case for the Court to propose an increase in the sentence.
Where this Court intervenes and imposes relatively small changes to a sentence that has been imposed at first instance, the suggestion is often made that this Court is only tinkering. The actual change may only be for a short period, but may be a significant proportion of the sentence originally imposed. To demonstrate this, an increase from twelve years in a sentence to fourteen years is an increase of one-sixth or 16.7 per cent, whereas an increase of one year on a two year sentence, is an increase of fifty per cent.

In my view, the sentence imposed ought to be quashed, and a new total sentence imposed of six years commencing from 17 September 2000 and expiring on 16 September 2006, and a non-parole period of three and a half years set. This latter period constitutes a forty per cent increase on the previous sentence imposed, and only slightly reduces the period during which the respondent is eligible to apply for parole, and if granted, to be supervised at liberty. Nonetheless, the total six years, and a non-parole period of three and a half years, taking into account the restraint that this Court should exercise, in my view appropriately reflects the seriousness of the offence.
I consider that His Honour correctly found special circumstances, and that there therefore should be a reduction of the non-parole period below seventy five per cent of the total sentence.
The orders therefore that I would propose are as follows:
(a) That the sentence be quashed;
(b) That the conviction be confirmed;
(c)That there be a total sentence of six years imprisonment imposed, to date from 17 September 2000 and to expire on 16 September 2006; and a non-parole period of three years and six months, to expire on 16 March 2004; and
(d)That the Court recommends that as far as is appropriate within the Corrective Services Classification System, that the respondent retain his current custodial arrangements and classification for such period as may be appropriate, consistent with his progression through the classification of the Corrective Services system.
GREG JAMES, J: I am indebted to Dowd, J. for his exposition of the facts of the case giving rise to this appeal. I need not repeat them here nor repeat the passages cited by him from the authorities, nor the references to case reports, his Honour makes. I agree with his Honour, for the reasons he gives, that this court should not find the specific errors asserted in the Crown's submissions that his Honour concludes are not made out. In particular, noting that there was no submission made to us by the Crown asserting the trial judge had erred by adopting a starting point and staged process mode of reasoning, I see no error, either, having regard to the discernment of and the balancing of the effects of the various matters a trial judge must bring into the synthesis or by a comparison with the statistics and other case outcomes, in the selection of seven years as the starting point of sentence, nor do I see error in the various factors applied to reduced that figure, considered individually or in combination.
It remains to consider whether the appeal should be upheld on the basis that the sentence, as a whole, is manifestly inadequate when applying the well known principles applicable on a Crown appeal and whether there is error, particularly error warranting this court's intervention, in the specification by the trial judge of the non-parole period. I have concluded, having regard to what I understand is the appropriate sentencing process and the proper role of an appellate court on a Crown appeal in consequence of the decision of the High Court in Regina v. Wong & Leung [2001] HCA 64, that the appeal should be dismissed. In what follows I will describe what I believe should now be that process and that role and set out my reasons for my conclusions.
The nature of the sentencing function is often misunderstood. In Sentencing Manual – "Law, Principles and Practice in New South Wales" by Ivan Potas, published by the Judicial Commission of New South Wales, the Chief Justice in the foreword described the process of it as follows:-
"The preservation of a broad sentencing discretion is critical to the ability of the criminal justice system to ensure justice is served in all of the extraordinary variety of circumstances of individual offences and of individual offenders. The ineluctable core of the sentencing task is a process of balancing overlapping, contradictory and incommensurable objectives, including deterrence, retribution and rehabilitation. These objectives do not always point in the same direction. The requirements of justice and the requirements of mercy are often in conflict, but we live in a society which values both justice and mercy.
Centuries of practical experience lead to the conclusion that the balancing of such a multiplicity of factors requires the exercise of a broad discretion. Nevertheless, that discretion is a judicial one and must be exercised in accordance with principle."
Those remarks epitomise the many pronouncements of judges expressing the essence of the common law sentencing discretion and the process of exercising it.
Nowhere else in the criminal law does that process involve a discretion so broad as it does for manslaughter. Manslaughter is a crime for which there is the widest range of available penalties: from 25 years imprisonment to a purely nominal punishment resulting in a directed acquittal: Crimes Act 1900, s.24. But the offence is one of the unlawful taking of a human life, one of the gravest offences against an ordered society. It may be committed by reason of provocation in circumstances evoking the deepest sympathy where there is no conceivable possibility of similar re-offending; it may be committed under the grossest provocation as a result of a total or near total loss of control on an instant, but it remains the fact that in every case of manslaughter a human life has been taken and the legislature contemplated that fact would be common to the offences to which were applicable such a breadth of available penalties in the exercise of a proper discretion.
With a view to avoidance of error, there have been attempts to set out principles to be considered amongst the range of those to be applied in any given case of sentencing for manslaughter by reason of provocation.
Street, CJ., speaking for the Court of Criminal Appeal when sentencing Georgia Marie Hill at (1980) 3 A. Crim. R. 397 at 402, set out principles applicable to the determination of sentence in such circumstances:-
"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 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 a 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 expectation of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life."
In the proper application of those principles, penalties have been imposed ranging from recognisances such as that imposed in Regina v. Gilham (Abadee, J., unreported 7 April 1995) (see the principles stated and the authorities cited at pp.6-7 and 14) to sentences of imprisonment of most substantial extent.
In Regina v. Alexander (1994) 78 A. Crim. R. 141 at 144, Hunt, CJ. at CL. attempts to describe a range of applicable principles for sentencing for manslaughter by reason of provocation derived from a consideration of a large number of cases. They are discussed in the judgment of Dowd, J. I need not repeat them here. It is difficult to understand what Hunt, CJ. at CL. meant in this context by "excessive violence" in the light of his discussion of that matter on p.144. I note what Dowd, J. observes concerning this criterion. For myself, I would have regarded the concept of excessive violence in occasioning death by reason of provocation as rather applying to the effect of the provocation than to some comparison with the degree of divergence of the provocation from some such standard such as might merit it being described as "excessive". In my view, the appropriate approach would compare the violence used with the degree of loss of self-control. However, in this case, an examination of the terms used by Hunt, CJ. at CL. may not matter, since as far as I can see the trial judge took into account all the considerations of which Hunt, CJ. at CL. spoke and had regard to the degree of violence used and the degree of provocation, against the background of the respondent's subjection to abuse over the years. The weight he assigned to those considerations and the balance that he achieved in his evaluation of the relationship between the various factors have long been held to be very much matters for the trial judge.
Crown appeals against sentences in manslaughter by provocation cases are notoriously difficult. In 1925, when dealing with a Crown appeal against a sentence imposed for manslaughter by reason of provocation, Street, CJ. in Regina v. Withers (1925) 25 SR 382 at 394-395, with regard to the proper approach to a Crown appeal and the considerations applicable to sentencing for manslaughter said, with the concurrence of James and Campbell, JJ.:-
"The question is not merely whether we think the sentence inadequate, and whether we should have imposed a heavier penalty. Again speaking for myself, I may say at once that the sentence imposed appears to me to be quite inadequate in the circumstances, but, in reviewing it on an application for an increased punishment, we must be guided by principle, and the principles by which we must be guided are those which we laid down in Regina v. King (25 SR 218). We said there that the principles to be followed in such cases were those enunciated by the Court of Criminal Appeal in England in Sidlow's Case (1 CAR 28), and by the High Court of Australia in Skinner's Case (16 CLR 336), and to that we still adhere. Tested in this way then, was the sentence now under consideration not merely inadequate but manifestly so, because the learned judge in imposing it either proceeded upon wrong principles or undervalued or overestimated some of the material features of the evidence. On consideration I have come to the conclusion that it was. Homicide, that is to say the unlawful killing of a fellow creature, is one of the gravest offences known to the law. Provocation may extenuate the offence of taking life to some extent, but it cannot do more than reduce it to manslaughter; which, though not so serious a crime as murder, is a serious crime the punishment for which varies with the circumstances of each case, but may be anything from imprisonment for life to a merely nominal penalty. There is no offence in which the permissible degrees of punishment cover so wide a range, and none perhaps in which the exercise of so large a discretion is called for in determining the appropriate penalty. In determining what that is to be the presiding judge is bound to take into consideration all the circumstances surrounding the manslaughter of which the prisoner has been guilty, and it is his duty to give full and careful consideration to any recommendation of the jury; but the responsibility of apportioning the punishment is his, and in the final determination of that he must act upon his own view of the circumstances surrounding the crime which, on the verdict of the jury was committed."
In that decision the Crown appeal was upheld. That case involved the detection of error where the 12 months sentence originally imposed was clearly entirely outside whatever may have been the lawful range of sentences. It was not necessary, therefore, for their Honours to define or describe a range of sentences. Their Honours' observations appear to have been directed, however, towards considering a range in that sense, ie., the results of the sentencing exercise, ie., sentences as expressed in terms of time in custody. Their Honours did not enunciate in even general terms the applicable principles to be applied when sentencing.
Such an approach has traditionally underlain the way in which this court has approached Crown appeals. That approach creates no difficulty when the error is so obvious that argument is not necessary to expose it. It is "manifest" (see eg., recently Regina v. Duncombe [2001] NSWCCA 483). In such cases the dramatic divergence of result from the unexpressed range reveals underlying error of principle. But Crown appeals have been upheld, emphasising the essential nature of the crime in cases where this explanation of what is being done may not apply. I take two examples. In Regina v. Macdonald (CCA, unreported 12 December 1995) and Regina v. Khan (CCA, unreported 27 May 1996), the latter a case of extreme provocation, the Court of Criminal Appeal intervened. In the first of those cases, a five year good behaviour bond was replaced by a sentence of five years with a minimum term of three years. In the second, a sentence of five years with a minimum term of two years was replaced by a sentence of six years with a four year minimum term. In neither case did the court find it necessary to define or describe the range of sentence. In Macdonald (supra) is an illustration of a similar kind to that of Withers (supra) of an initial sentence so far beyond an appropriate range as not to require the description of the extent or nature of the range. The substituted penalty in Khan (supra) does not suggest that case may be similarly explained.
The court's approach in Khan (supra), at least implicitly, appears to have been to compare the sentence imposed with that which the members of the court would have imposed. Such an approach is here taken by Dowd, J. when he concludes that the sentence and non-parole period does not sufficiently reflect "the enormity of this offence of manslaughter, in the light of the aggression and violence displayed by the respondent" and he refers to "the objective seriousness" of the offence.
These earlier decisions of this court I have referred to are merely examples taken from many in which there has been such an approach where there have not been in the judgments, any error of principle (even unidentified) referred to or a range of sentences or the criteria for describing the nature or general ambit of sentence applicable in the instant case expressly enunciated. On occasion, as in Regina v. Troja (CCA, unreported 16 July 1991) members of the court have expressly declined to hold that there was any range or tariff of sentences available for manslaughter and, particularly, manslaughter by reason of provocation to permit such a comparison: see also Regina v. Schelberger (CCA, unreported 2 June 1988).
Such an approach as is adopted in the cases of which I have referred to, an example of which is Khan (supra), could be considered as replacing one subjective assessment by another. It was dissatisfaction with the inconsistency sometimes noted in sentencing that gave rise to a greater reliance on statistics and the development of guideline judgments nominating ranges of sentence. See the history of guideline judgments given by Kirby, J. at paragraphs 89-92 in Wong & Leung (supra) in which case these approaches have recently been criticised.
Although Gleeson, CJ. and Callinan, J. separately dissented, they did not deal in detail with the views expressed by the rest of the Bench on the sentencing process and the role of an appellate court on a Crown appeal. Kirby, J., who agreed in the result, would not seem to have agreed with the authors of the joint judgment entirely and would have reserved to a future appeal questions relating to "intuitive" sentencing and a staged approach.
In Wong & Leung (supra), however, in the joint judgment of Gaudron, Gummow and Hayne, JJ. at 57-59, appears the following:-
"The actual sentence which a court imposes on an offender reveals very little about the reasons which the court had for fixing that sentence. Contrary to submissions made on behalf of the Attorney-General of the Commonwealth (intervening in support of the respondent) the sentence itself gives rise to no binding precedent. What may give rise to precedent is a statement of principles which affect how the sentencing discretion should be exercised, either generally or in particular kinds of case. It is, therefore, fundamentally wrong to speak of 'quantitative aspects' of discretionary decisions.
So much is, or should be seen as, no more than a statement of elementary principle. If, however, further elucidation of the principle is necessary, it is evident in cases like House v. The King (1936) 55 CLR 499 and the discussion of when an appellate court may conclude that a trial judge's exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range. It is those assumptions that may reflect or embody relevant principle, not the result.
Similarly, recording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were."

In their Honours' view, a sentence should not any longer be passed with reference to statistical means or those passed in cases asserted to be, in their outcome, comparable. (However, I note in passing, that the sentence in this case is not so out of accord with statistical means as to warrant obviously attracting disapprobation: see the Sentencing Manual at p.312). The staged approach to sentencing does not find favour either (paragraph 76). A judge, in the views of their Honours, should apply the relevant principles to achieve an "instinctive" or "intuitive" synthesis (paragraphs 75 and 77). It is the synthesising process, the balancing, that is instinctive or intuitive, not ascertainment of what are the relevant principles. It may be necessary and appropriate for an appellate court to make explicit the sentencing principles in the performance of its function in an instant case (paragraphs 60 and 63).
In the Full Court of Victoria in Regina v. Williscroft [1975] VR 292 at 300, Adam and Crocket, JJ. stated, concerning the application of principles by a trial judge when sentencing:-
"Now, ultimately every sentence imposed represents the sentencing judge's instinctive synthesis of all the various aspects involved in the punitive process. Moreover, in our view, it is profitless (as it was though to be in Kane's Case) to attempt to allot to the various considerations their proper part in the assessment of the particular punishments presently under examination … We are aware that such a conclusion rests upon what is essentially a subjective judgment largely intuitively reached by an appellate judge as to what punishment is appropriate. Indeed, in Regina v. Geddes (1936) 36 SR (NSW) 554, Sir Frederick Jordan, CJ., was sufficiently oppressed by the problems of seeking a rational principle for determining whether a sentence was inadequate, that he was able to find a solution only in the employment of an epigrammatic device. After pointing out that it was easier to see when a wrong principle had been applied than to lay down rules for solving particular cases the learned Chief Justice observed that '… the only golden rule is that there is no golden rule'."
Although that passage is not reconciled with the principles in House v. The King (1936) 55 CLR 499 easily, it was expressly approved in the joint judgment of their Honours Gaudron, Gummow & Hayne, JJ. in Wong & Leung (supra) at 75 and 76. Sir Frederick Jordan's difficulty has been shared by judges of criminal appeal courts ever since. The approach, which commends itself to the authors of the joint judgment, will go some way, if proper reasons are expressed, to overcome the difficulty on appeal Sir Frederick Jordan observed.
Such an approach will require advertence to the relevant principles but not a quantitative allocation of weight for any specific principle in the result.
But it will involve the sentencing judge identifying and articulating, at least to some extent, those principles applied in the instant case, even if this is a task of great difficulty, particularly where the range of considerations, as has long been accepted is the case in manslaughter, is so wide. Such needs to be done to comply with the necessity to give reasons. Similarly, this approach will involve articulation by an appeal court minded to intervene, to an extent, of what kind of error is detected as is consonant with the principles for discovering error expressed in House (supra).
Applying those considerations, in my appreciation of House (supra) and the authorities, on an appeal of this kind it is not a question of an appeal judge considering whether he or she would substitute their view (if it were different) for that of the trial judge, but whether, objectively, it is clear that the sentence is so far outside the legal range as to display an unidentifiable but serious error of law. Absent other error, it is in that case only that it lies within the jurisdiction of this court to intervene. It may be that the members of the court might denounce what each of them considers unacceptable leniency. But that will not be to determine such error as requires re-sentencing. Such an error will require some degree of express identification, since, even if there is legal error, the court will still stay its hand from visiting that error upon the individual respondent unless the degree to which intervention should go is so substantial that the customary discretionary restraint should not be applied.
These considerations are discussed in particular in Everett v. The Queen (1994) 181 CLR 295 at 300 as well as in Duncombe (supra) the authorities to which I referred in that decision, including Regina v. Pont [2000] NSWCCA 419.
It is well when it comes to consider the application of those considerations to the individual case, to recall the observations on the role of a court of appeal on a Crown appeal I have noted earlier and in Duncombe (supra) and Pont (supra), to have regard to what was said in Regina v. Lattouf (CCA, unreported 12 December 1996) by Mahoney, ACJ., with whom Adams, AJ. agreed, about the function of a trial judge when applying general principles to the individual sentencing exercise:-
"It is in my opinion necessary that the law allow to a sentencing judge a discretion to determine the sentence appropriate for the particular offence, and for the circumstances of the particular case. General sentencing principles must be established, so that the community may know the sentences which will be imposed and so that sentencing judges will know the kind and the order of sentence which it is appropriate that they impose. But, of course, principles are necessarily framed in general terms. General principles ,must, of their nature, be adjusted to the individual case if justice is to be achieved. For this reason, it is in my opinion important in the public interest that the sentencing process recognise and maintain a residual discretion in the sentencing judge.
Second, it is important to recognise the nature of the interests involved in the sentencing process. There is a public interest in the adoption and articulation of sentencing principles which will deter the commission of serious crime and punish those who commit it. That is clear from what I have said as to the principles in Readman and Roberts. But there are other interests to which the sentencing process must have regard; there are other objectives which the sentencing process must seek to achieve. Paramount amongst these is the achievement of justice in the individual case. To see the sentencing process as involving no more than stern punishment for each offender is not merely simplistic; it damages the public interest. A sentencing process which is seen by the public merely as draconian and not just will lose the support of those whom it is designed to protect. If a sentencing process does not achieve justice, it should be put aside. As I have elsewhere said, if justice is not individual, it is nothing: Kable v. Deputy Director of Public Prosecutions (1995) 36 NSWLR 374 at 394."
I share his Honour's views. They are entirely consistent with those of the authors of the joint judgment in Wong & Leung (supra). To follow them accords with what I have said earlier in this judgment about the sentencing process and the role of the appeal court. To proceed as I consider would accord with the approach I have set out, would allow the expression of the basis for the intuitive or instinctive synthesis and the articulation of sufficient reasons for the choice of sentence and for reasoned review on appeal in accordance with established legal principles.
Given adequate reasons and no specific error, it may be that the test for a court of criminal appeal in detecting error warranting intervention on this ground, having regard to the discretionary restraints appropriate to Crown appeals, in consequence of the approach taken in the joint judgment in Wong & Leung (supra), may be concisely put and may be stated simply thus: for the court to be persuaded that it is manifest that the sentence is inadequate, that sentence should be clearly seen to be, in the context of the balancing of the appropriate considerations, so much shorter than that which is appropriate as to require substantial re-adjustment unless some overriding discretion to refrain from intervening is successfully invoked.
Where, as here, whilst the sentence might be lenient, but is not so obviously, having regard to the outer bounds of a valid discretion, and where there is no clearly discernible range, pattern or tariff applicable, beyond which it clearly lies, nor clear failure to take into account a relevant principle or range of principles, it is, in my view, very difficult for a court considering a Crown appeal, affording proper recognition to the role of the primary decision maker (see House (supra)), in accordance with Wong & Leung (supra) to find there is made out the requisite basis to intervene. I do not consider such a basis is made out unless the court is affirmatively satisfied of legal error, rather than the members of the court being inclined to results inconsistent with that reached by the trial judge.
Not only do I apply these observations generally to Crown appeals, but they are of added force when considering whether there should be intervention in respect of the specification of a non-parole period said to be too short. Such a period was considered to be, prior to the Sentencing Act 1989, the shortest period the trial judge considered the offender should have to serve actually in custody for the offence: Bugmy v. The Queen (1990) 47 A. Crim .R. 433. Notwithstanding legislation requiring the period to be, in the absence of special circumstances, a statutory proportion of the head sentence, in my view such a period still retains somewhat of the character it formerly had. Indeed, it may be that when special circumstances are found, as were found here, a conclusion I would not disturb, that the proper period to be imposed is defined by that consideration. The considerations applicable to fixing such a period are peculiarly apt to be weighed by a trial judge.
What I have said minds me to conclude that the range of sentences appropriate for manslaughter is so wide, the complex of facts in this case so specific, and the balancing of relevant considerations so much a matter for the primary judge in the exercise of his discretion, that I do not detect such error as the joint judgment spoke of in Wong & Leung (supra). I see no inadequacy of reasons and I am unpersuaded that principle has been misapplied or there has been other error in the overall sentence or the non-parole period.
I do not consider that this is a case which, on either the former approach or that which I understand should now be taken to sentencing or on the approach I consider a court of criminal appeal should take on a Crown appeal, would warrant intervention.
If there was error here, I do not see it was such as to affect the sentence to such an extent that this court should intervene. I have regard to the matters referred to by Dowd, J. at paragraphs 5-10, 12, 15, 18, 29 and 30 of his judgment.
I conclude that I am not affirmatively persuaded that there was error of principle, that either the sentence or the non-parole period were outside a permissible legal range such as to show error. If there was error, I am unable to see that it is so substantial it would warrant intervention, having regard to the discretionary restraints.
In my view the appeal should be dismissed.

oOo

LAST UPDATED: 17/12/2001