R v Papandrea

[2000] NSWCCA 499

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:         Regina v Papandrea [2000]  NSWCCA 499

FILE NUMBER(S):
60563/99

HEARING DATE(S):          24 November 2000

JUDGMENT DATE:           24/11/2000

PARTIES:
Regina
Andrew Papandrea

JUDGMENT OF: Sully J Whealy J Howie J   

LOWER COURT JURISDICTION:    Supreme Court

LOWER COURT FILE NUMBER(S):               70097/99

LOWER COURT JUDICIAL OFFICER:          Studdert J

COUNSEL:
L.M.B. Lamprati - Crown
P. Bodor QC - Appellant

SOLICITORS:
Director of Public Prosectutions - Crown
Ross Hill & Associates - Appellant

CATCHWORDS:

LEGISLATION CITED:
Sentencing Act 1987

DECISION:
Leave to appeal granted; appeal dismissed

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

60563/99

SULLY J
  WHEALY J
  HOWIE J

Friday 24 November 2000

REGINA  v  Andrew PAPANDREA

JUDGMENT

1. SULLY J:  This is an application by Mr. Andrew Papandrea for leave to appeal against a sentence passed upon him on 24 September 1999 by Mr Justice Studdert of this Court.

1. The applicant had been indicted before his Honour on a charge that he had, on 15 May 1997, murdered a man called Janjic. The applicant pleaded not guilty to that charge and was put on trial before his Honour and a jury. That trial commenced on 10 August 1999. On 16 August 1999, that is to say on the fifth day of the trial, the applicant sought to be re-arraigned; and, upon being so re-arraigned, adhered to his plea of not guilty to murder but offered a plea to manslaughter. The Crown accepted that plea in satisfaction of the indictment; and it was in respect of that offence of manslaughter, that the applicant was convicted and sentenced by his Honour. The sentence in fact passed by his Honour was one of penal servitude for nine years; apportioned between a minimum term of six years and an additional term of three years. That apportionment reflects a finding by his Honour, and in the applicant's favour, of "special circumstances" of the kind contemplated by the relevant provisions of the then current Sentencing Act 1987.

1. The manslaughter in question involved a killing by shooting. The remarks on sentence are extensive, and they canvas in careful and precise detail the evidence before his Honour, and the findings of fact to which his Honour proceeded based on that evidence. It is not, I think, practicable to paraphrase in a brief way the detail given by his Honour; and for myself I do not see that it is necessary to reiterate it in detail. Suffice it to take as a starting point the proposition that his Honour found proved beyond reasonable doubt the following propositions:

1. That the shot gun used in connection with the killing had been discharged by the applicant at the time when the muzzle end of that weapon was no more than a metre removed from the deceased;

2. That to discharge the shotgun required; first, that the hammer of the weapon be cocked, a movement requiring what his Honour described as quite heavy pressure; and secondly, the exerting of between six or seven pounds of pressure on the  trigger to force it right back;

3. That the shot had been fired with the weapon in such a position as to permit part of the shot and discharged wads to track from right to left and backwards and downwards. It is not submitted on the present occasion that those findings were not open to his Honour; and a contrary submission could not, in my opinion, have been in any event sustained.

1. From those fundamental findings his Honour proceeded to an assessment of the evidence put before him by the applicant. His Honour came to the conclusion that the applicant, having admitted he lied to the police about how he had come to have possession at all of the relevant weapon, was not in essential matters a credible witness; and his Honour rejected in terms evidence that the applicant had given to the effect that he, the applicant, did not think that he was the person who had loaded the cartridge into the weapon prior to the fatal discharge.

1. His Honour proceeded somewhat later to a positive finding, reached beyond reasonable doubt, that it was not the prisoner who had loaded the weapon. It became, therefore, necessary for his Honour to define the nature of the manslaughter in connection with his Honour's approach to sentence.  His Honour defined the manslaughter as he saw it as having been manslaughter by an unlawful and dangerous act, that act being defined by his Honour as follows:

   "that the prisoner having cocked the hammer of the loaded weapon, pressed back the trigger when the muzzle end of it was proximate to the deceased at no greater a distance than that which I have found and at a time when the weapon was pointing in the direction of the deceased, and precisely why the prisoner did so I do not know and I must not speculate. "

2. It is contended in support of the present application that the process of reasoning bound up in that definition of the relevant unlawful and dangerous act was flawed. In part at least that flaw is said to have referred back to something earlier said by his Honour, and recorded at paragraph 11 of the remarks on sentence. There his Honour observed that the Crown, by accepting the plea of manslaughter in satisfaction of the indictment "has accepted that the prisoner did not shoot the deceased either with intention to kill or intent to cause bodily harm, and I must approach my task in sentencing the prisoner upon the basis that he entertained no such intent."

1. It is submitted that that statement amounts to a proposition advanced by his Honour that the acceptance of the plea of guilty to manslaughter entailed that the prisoner did not shoot the deceased either with intent to kill or with intent to cause bodily harm of any kind.

1. I would myself have thought that could not be a reasonable understanding of what his Honour intended to say; but any  doubt about the matter is, I think, set at rest by a sensible reading, in context, of the sentence which follows, and in which his Honour observes that the plea of guilty to manslaughter acknowledges:

   "That the act of firing the shot gun was deliberate even though that act was not accompanied by the intent  ...  to establish the crime of murder."

2. Given the findings of fact made by his Honour, as I have summarised them, it does not seem to me that there is any error in law or in fact in the definition which his Honour expressed in connection with the crime of manslaughter for which he was proposing to pass sentence.  In that connection his Honour expressed the view that the shooting "was unquestionably a dangerous act and caused death." I agree; and I do not see how a contrary proposition could be seriously maintained.

1. His Honour proceeded to observe that the features of the crime were, as his Honour saw them, "very serious." Once again, I respectfully agree, and I do not see how a reasonable view of the evidence could have supported a contrary view.

1. His Honour noted that the maximum penalty for the crime of manslaughter was one of penal servitude for 25 years; and that, of course, set the parameters as it were in which a particular sentence then fell to be set according to proper principle.

1. His Honour considered the subjective features, and it is fair to acknowledge that there were a number of them, and that they had real weight. It is not, I think, contended as I understand the submissions put this morning, that his Honour failed to identify any material subjective matter, or that he failed to give fair and sensible weight to the subjective matters.

1. Once again, it is not, I think, necessary to set out in detail his Honour's findings with respect to the subjective matters. They appear in all necessary detail in the careful and precise reasons given by his Honour.

2. It is true, as his Honour points out in the remarks on sentence, that manslaughter is an offence in which the sentence is always, so to speak, at large because of the almost infinite variety of facts and circumstances that can attend it. His Honour, being mindful of that central principle, was mindful as well of the principle, for which there is ample authority in this Court, that the crime of manslaughter involves the felonious taking of human life, and that is itself an indication of the necessity for appropriate punishment.

1. I do not think it has been shown that his Honour erred in the balance which he struck overall, between on the one hand the objective facts, and on the other hand, the relevant subjective facts. It is not to the point to canvass in a speculative kind of way whether the sentence passed by his  Honour might be defined as severe, or not severe, or at this or that point on this or that range. The question is whether the Court has been persuaded that there is an error vitiating the sentence set by his Honour. I am not persuaded there is. I do not think that the sentence could be said in any way to fall outside the range of a reasonable sentence available to the learned primary Judge in all the circumstances of the case.

1. I would grant the application for leave to appeal. I would dismiss the substantive appeal against sentence.

1. WHEALY J: I agree.

1. HOWIE J: I agree.

1. SULLY J: The orders of the court are as I pronounced.

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LAST UPDATED:             29/11/2000