R v Frazer Kevin Tanks - [2016] NSWSC 519

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v FRAZER KEVIN TANKS [2016] NSWSC 519
Hearing dates: 17 March 2016
Date of orders: 28 April 2016
Decision date: 28 April 2016
Before: Mathews AJ
Decision:
1. For the assault occasioning actual bodily harm to Christopher Curtin, the offender is sentenced to imprisonment for six months, commencing on 11 February 2014.
2. For the manslaughter of Stephen Donoghue, the offender is sentenced to imprisonment consisting of a non-parole period of four years, commencing on 11 May 2014 and expiring on 10 May 2018, with a balance of term of three years, commencing on 11 May 2018 and expiring on 10 May 2021. Accordingly, the total term of imprisonment is seven years and three months.
3. The earliest date on which the offender will be eligible for release on parole is 10 May 2018.

Catchwords: CRIMINAL LAW – Sentencing – Manslaughter – offender charged with murder, pleaded guilty to manslaughter – acquitted of murder – deceased particularly vulnerable because of pre-existing health issues – further offence of assault occasioning actual bodily harm arising out of same series of events – offender has long criminal record, but nothing major over recent years
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Cases Cited: NLR v R [2011] NSWCCA 246
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Frazer Kevin Tanks (Offender)
Representation:
Counsel:
Ms N Williams (Crown)
Ms J Manuell SC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Mandy Hull Solicitor & Sports Agent (Offender)

File Number(s): 2014/00043191

REASONS FOR sentence

MATHEWS AJ:

Introduction

On 8 February 2016 Frazer Tanks was indicted on a charge that, on 21 February 2014, at New Lambton, he murdered Stephen Donoghue. He pleaded not guilty of murder but guilty of manslaughter. A jury trial then ensued in order to determine his guilt of the offence of murder. On 19 February the jury returned with a verdict of not guilty. I thereupon entered a conviction for the offence of manslaughter. Mr Tanks now comes to be sentenced for that offence. In addition, pursuant to s. 166(1)(b) of the Criminal Procedure Act 1986, the Crown has produced a certificate specifying, as a back-up or related offence, the offence of assault occasioning actual bodily harm to Christopher Curtin, and the offender has pleaded guilty to this offence. He is accordingly also to be sentenced in relation to this offence.

Background Facts

The events leading to Mr Donoghue’s death took place on the evening of 10 February 2014, and the early hours of the next morning. At that time Mr Donoghue was sharing an apartment in Norma Street, Waratah (a suburb of Newcastle) with his ex-partner Kylie-Ann Bennett, and their son, then aged eight.
Some time on the afternoon of Monday 10 February, two brothers, Christopher and Jeffrey Curtin, set out to go to the Mayfield Diggers Club for the daily happy hour. They arrived well before 5.00 pm, when the happy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 519
Decision Date: 28 April 2016

CaseChat Overview and Summary

The case of R v Frazer Kevin Tanks was heard in the Supreme Court of Queensland. The defendant, Frazer Kevin Tanks, was initially charged with the murder of a vulnerable individual. Tanks later pleaded guilty to the lesser offence of manslaughter. The court also considered a separate offence of assault occasioning actual bodily harm which arose from the same series of events. Tanks had a lengthy criminal history, though there were no significant offences recorded in recent years.

The primary legal issue before the court was the appropriate sentencing for Tanks' plea of guilty to manslaughter and the assault occasioning actual bodily harm. The court needed to balance the culpability of Tanks, the vulnerability of the deceased, and the offender's criminal history in determining the sentence. Another key consideration was the impact of Tanks' pre-existing health issues on his culpability.

The court determined that the deceased's pre-existing health issues rendered them particularly vulnerable, which was a significant aggravating factor. Despite Tanks' lengthy criminal record, the court observed that there were no major offences committed in recent years. Considering all the circumstances, the court found that an appropriate sentence would reflect the gravity of the manslaughter and the assault. The court ultimately decided on a sentence that was intended to reflect both the culpability of Tanks and the need for deterrence and rehabilitation.

The final orders of the court included a sentence of imprisonment for Tanks, reflecting the seriousness of the offences and the need to address the risk posed by the offender to the community. The specific details of the sentence were not disclosed in the summary provided.

Orders