R v Donald George Karpany No. SCCRM 93/431 Judgment No. 4435 Number of Pages 3 Criminal Law and Procedure Sentence

[1994] SASC 4435

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL LEGOE ACJ(1), BOLLEN(2) AND MULLIGHAN(3) JJ

CWDS
Criminal law and procedure - Sentence - manslaughter - killing of fellow prisoner by means of improvised weapon - bad record including violence - serving life sentence for murder with 16 years 14 months non-parole period - sentence 14 years - non-parole period extended by l0 years - held on appeal to be not excessive.

HRNG ADELAIDE, 24 February 1994 #DATE 24:2:1994

Counsel for appellant:     Mr W F Braithwaite

Solicitors for appellant: Aboriginal Legal Rights Movement

Counsel for respondent:     Mr S J Smart

Solicitors for respondent: Director Of Public Prosecutions
   (SA)

ORDER
Appeal dismissed.

JUDGE1 LEGOE ACJ This is an appeal against a sentence passed in the Supreme Court upon the appellant for the crime of manslaughter. The crime was committed while the respondent was serving a life sentence for murder, and the victim was a fellow prisoner. The learned sentencing judge imposed a sentence of imprisonment for 14 years. The existing non-parole period with respect to the sentence for murder was 16 years and 4 months, and His Honor extended that by 10 years to 26 years and 4 months.

2. The crime occurred at the Cadell Training Centre, where the appellant and a man by the name of Hocking were serving their sentences. There were some dealings with a fellow prisoner Daniels with respect to buying cannabis. Precisely what occurred in that regard is not clear, but it is clear that on the occasion in question, the appellant and Hocking approached Daniels, and the appellant struck Daniels in the chest. Daniels took up a defensive stance, what has been described as a boxing stance. Hocking thereupon threw a glass jar which struck Daniels in the head and caused him to fall to the ground. The appellant then struck or stabbed Daniels with a weapon which had been fashioned out of fencing wire. The blows with this weapon penetrated Daniels body and caused wounds to the chest and arm and right temple. As a result of those blows, Daniels died.

3. The crime is, of course, a very serious crime. The learned sentencing judge described it as being in the upper range of manslaughter, approaching murder. I consider that that description is accurate.

4. If the appellant had an intention to do grievous bodily harm, the crime would have been murder. He was in fact charged with murder, and was committed for trial on that charge. The prosecution accepted a plea of guilty to manslaughter, and in fact filed the information in the Supreme Court alleging manslaughter only. It must be taken, therefore, that the appellant's intention was to do harm which was less than grievous, that is to say, less than really serious harm. Nevertheless, it is obvious from the circumstances of the assault, that there must have been an intention to do considerable harm.

5. It is that distinction between the degree of harm intended by the appellant, and the degree of harm required to be intended for the full crime of murder, which makes this crime manslaughter and not murder. It is therefore obvious that the learned judge's description of it as being in the upper range of manslaughter, approaching murder, is accurate.

6. The crime is aggravated moreover by the circumstances in which it was committed. It was committed against a victim who was trapped in the situation of being a prisoner, a fellow inmate of the institution in which the appellant was confined. There is an obligation upon the courts to extend what protection they can to prisoners who, by virtue of their confined situation, are often unable to do anything to escape from the environment which exposes them to danger.

7. The appellant has a bad record. It includes crimes of various kinds, some of which involve violence. It culminated in September 1983 in the conviction for murder. Since that time, in March of 1989, the appellant has been convicted for two offences of two assaults, which also were committed in the prison environment. In those circumstances, the need for deterrence, both general and personal, is very strong. It is necessary that punishment be inflicted for a crime of this sort which operates as a deterrent to other prisoners against engaging in violence against their fellow prisoners and against others. Moreover the history of this appellant, and in particular the fact that he has already committed a crime of murder, and has in the prison committed two assaults, followed by the present crime of manslaughter, emphasises the need for a punishment which will operate as a deterrent to him personally, against inflicting violence upon fellow prisoners and others who come in his path. For all those reasons it was incumbent upon the learned sentencing judge to impose a heavy sentence.

8. Mr Braithwaite has emphasised the fact that the appellant pleaded guilty, and has submitted that the judge made insufficient allowance for the plea of guilty. He has contended that the plea was of special significance in the present case, because the case for the prosecution depended, to a considerable extent, upon the evidence of fellow prisoners, who might not have been forthcoming as willing witnesses at a trial. I think, however, from the evidence in this case, that the prosecution should have had no difficulty in proving the appellant's involvement in the crime. The real issue in the case was the nature of his intention.

9. Moreover, the plea of guilty perhaps assumes less significance in the present case than it might in some instances, because on the facts of the case, the appellant was obviously in jeopardy of conviction for murder. A plea of guilty to manslaughter was a means of averting the risk of a conviction for murder, with the consequences which would have flowed from that.

10. It is unfortunate that the learned judge did not indicate the extent of the allowance for the plea but I think that he must have given a substantial discount for it. This crime committed in the circumstances in which it was committed, and against the background of the appellant's history, could well have attracted a sentence in the order of 17 or 18 years. The fact that the sentence imposed was 14 years, indicates to me that His Honor must have made some significant allowance for the plea of guilty. There is little else that could be said by way of mitigation. Mr Braithwaite has submitted that the sentence was manifestly excessive, and has stressed that the intention upon which the learned sentencing judge was required to act, was not an intention to cause grievous bodily harm, but an intention to cause harm which fell short of that.

11. I have given careful thought to the submissions which Mr Braithwaite has made on behalf of the appellant, but I have reached the conclusion that the seriousness of this crime, the seriousness of the circumstances in which it was committed, and the background of the appellant's personal history, called for a deterrent penalty to such a degree as to indicate that the learned judge's sentence was entirely reasonable, and that the extent by which he extended the non-parole period was perfectly proper. In the circumstances, I would dismiss the appeal.

JUDGE2 BOLLEN J I agree.

JUDGE3 MULLIGHAN J I agree.