R v Sparks; R v D Stracey; R v P Stracey

[2010] NSWSC 1512

NEW SOUTH WALES SUPREME COURT

CITATION:
R v Sparks; R v D Stracey; R v P Stracey [2010] NSWSC 1512

JURISDICTION:
Common Law

FILE NUMBER(S):
2009/43119
2009/252058
2009/263425

HEARING DATE(S):
30 August 2010 (Sparks and D Stracey)
15 September 2010 (P Stracey)

JUDGMENT DATE:
10 December 2010

PARTIES:
Regina
Glen Neil Sparks (Offender - 2009/43119)
David Stracey (Offender - 2009/252058)
Phillip Stracey (Offender - 2009/263425)

JUDGMENT OF:
Adams J      

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
A McCarthy (Crown)
J Manuell SC (Sparks & D Stracey)
G Thomas (P Stracey)

SOLICITORS:
I V Knight, Crown Solicitor
Legal Aid Commission (Sparks & D Stracey)
Mitchell Lawyers (P Stracey)

CATCHWORDS:
SENTENCE - Manslaughter in course of robbery - robbery - accessory after the fact - offence committed in 1987 - change in sentencing patterns - effect of rehabilitation in meantime.

LEGISLATION CITED:
Crimes Act 1900 ss 97(1), 117/154A
Crimes Act (1900-1989) ss 18(1)(b)/24
Crimes Act (1900-1994) s 97
Crimes (Life Sentences) Amendment Act 1989 s 19(2)
Crimes (Sentencing Procedure) Act 1999
Probation and Parole Act 1983
Sentencing Act 1989
Sentencing Act 1999 s 44
Sentencing Bill, Second Reading, Hansard, 10 May 1989, p7905

CATEGORY:
Sentence

CASES CITED:
AJB v R [2007] NSWCCA 51; 169 A Crim R 32
Bradbery v R [2008] NSWCCA 93
R v Clarke [2001] NSWSC 703
R v Dixon; R v Dunn unreported, NSWSC, 18 November 1994
R v Fernando (1992) 76 A Crim R 58
R v Jennar unreported, NSWCCA, 4 March 1991
R v Macleay (1990) 19 NSWLR 112
R v Marsh [2002] NSWCCA 151
R v MJR (2002) 54 NSWLR 368
R v Perry; R v Roberts, unreported, NSWCCA, 7 March 1986
R v PLV (2001) NSWLR 736
R v Shore (1992) 66 A Crim R 37
R v Stevens unreported, NSWCCA, 15 August 1993
R v Thomson and Houlten (2000) 49 NSWLR 383
Winchester v The Queen (1992) 58 A Crim R 345

TEXTS CITED:
Janet B L Chan, The New South Wales Sentencing Act 1989:  Where Does Truth Lie (1990) 14 Crim LJ 249

DECISION:
2009/43119 - Glen Neil Sparks
For the crime of manslaughter:  Taking into account the matters on the Form 1, the commencing point is nine years imprisonment reduced to six years and nine months by virtue of the utilitarian discount of 25% arising from a plea of guilty.  Special circumstances are present having regard to the sentencing practice at the date of the offence.  I set a non-parole period of three years and six months commencing 29 May 2009.  The balance of the term of the sentence is three years and three months to commence on 29 November 2012 and end on 28 February 2016.
For the crime of robbery in company, the commencing point is five years, reduced to three years and nine months by virtue of the utilitarian discount of 25%.  Special circumstances apply as already mentioned.  I set a non-parole period of two years to commence on 29 May 2009.  The balance of the term is one year and nine months to commence on 29 May 2011 and end on 28 February 2013.
For the crime of armed robbery, the commencement point is six years and six months, reduced to four years and ten months by virtue of the utilitarian discount.  Special circumstances apply as already mentioned.  I set a non-parole period of two years and six months to commence on 29 May 2011.  The balance of the term is two years and four months to commence on 29 November 2013 and end on 28 March 2016.
The earliest date upon which the offender is eligible to be considered for release on parole is 29 November 2013.
2009/252058 - David Gordon Stracey
For the crime of manslaughter:  Taking into account the matters on the Form 1, the commencing point is seven years imprisonment reduced to five years and three months by virtue of the utilitarian discount of 25% arising from a plea of guilty.  Special circumstances are present having regard to the sentencing practice at the date of the offence and the substantial rehabilitation evident since 1992.  I set a non-parole period of two years commencing 4 November 2009.  The balance of the term of the sentence is three years and three months to commence on 4 November 2011 and end on 3 February 2015.
For the crime of robbery in company, the commencing point is four years, reduced to three years by virtue of the utilitarian discount of 25%.  Special circumstances apply as already mentioned.  I set a non-parole period of one year and six months to commence on 4 November 2009.  The balance of the term is one year and six months to commence on 3 May 2011 and end on 3 November 2012.
The earliest date on which the offender is eligible to be considered for release on parole is 4 November 2011.
2009/263425 - Phillip Stracey
In respect of the offence of being an accessory after the fact, taking into account the utilitarian discount of 25%, I set a non-parole period commencing on 26 May 2010 and ending on 10 December 2010.  The balance of term is one year commencing 11 December 2010 and ending 10 December 2011.
In respect of the offence of receiving, I impose a fixed term of imprisonment of six months commencing 26 May 2010.
As a consequence of these sentences I order that you be immediately released to parole.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

FRIDAY, 10 DECEMBER 2010

2009/043119      REGINA  v  GLEN NEIL SPARKS
2009/252058      REGINA  v  DAVID STRACEY
2009/263425      REGINA  v  PHILLIP STRACEY

SENTENCE

1. HIS HONOUR:

   Introduction

2. On 30 August 2010 Glen Neil Sparks pleaded guilty to the manslaughter, on 5 October 1987, of Po Cin Lim.  He pleaded guilty also to additional charges alleged in the indictment of which count two alleged that, in company with David Stracey, on 5 October 1987 he robbed Margaret Ricketts of a handbag containing $125 in cash and count three that on 11 October 1997 he, being armed with an offensive weapon, namely a knife, and an offensive instrument, namely a blood filled syringe, robbed Chi Mui Mak of a handbag containing $620 cash, personal items and bank cheques.  Three additional charges were included on a Form 1, namely, assaulting one Ms Buchanan with intention to rob on 5 October 1987 and, on the same day, two charges of taking and driving vehicles without consent. 

3. On 30 August 2010 David Gordon Stracey also pleaded guilty to the charge of the manslaughter on 5 October 1987 of Po Cin Lim and, on the same day, being in company with Sparks, robbing Margaret Ricketts.  He sought to have taken into account on a Form 1 the assault of Ms Buchanan with intent to rob on 5 October 1987 and on the same day, one of the offences of taking and driving a vehicle without consent which Sparks had also asked to be taken into account.

4. So far as Phillip Stracey is concerned, on 23 August 2010 he pleaded guilty before me upon an indictment charging him with being an accessory after the fact to the robbery committed by Glen Sparks and David Stracey on Po Cin Lim and, additionally, that he received and had in his possession a Nissan motor vehicle, knowing the same to have been stolen.  The first offence was committed on 6 October 1987 and the second on 9 October 1987.  It is clear from the formulation of the charge that the Crown does not allege that, at the time of his assistance, he was aware of Mrs Lim’s death or of his brother’s and Sparks’ involvement in it. 

1. Although the charges were presented by way of indictment, all the offenders entered pleas of guilty in the Local Court at an early stage.

2. A most important matter relevant in the present case is that the sentencing regime, and sentences in general, have changed markedly over the years since the commission of the 1987 offences and, indeed, to some degree since 1997.  I shall deal with the significance of these developments after dealing with the evidence presented on behalf of David and Phillip Stracey.

   The Agreed Facts

3. Since all the offences occurred within a short time, it seems to me that, for ease of understanding, I should deal with them in chronological order.

4. Just before mid-day on 5 October 1987 a Holden panel van was stolen from a street in Maroubra.  About 40 minutes or so later, Ms Buchanan who was walking along Cowper Street, Randwick saw this vehicle reverse and pull up in front of her, partially blocking the footpath.  Two men were in the front of the motor vehicle.  As she walked around the rear of the vehicle the passenger approached her from behind and attempted to forcibly remove her handbag from her shoulder.  Ms Buchanan refused to let it go and there was a short tussle before the handbag strap broke and the contents spilled on the ground.  The offender released his hold and ran back to the vehicle, which then left the scene.  No property was, in the result, stolen.  Of course, the two men in the vehicle were the present offenders. 

5. About 40 minutes later, Ms Ricketts and her husband were standing on a raised pedestrian refuge in Goulburn Street in the city, Ms Ricketts having her handbag over her left shoulder.  The vehicle, driven by David Stracey and with Sparks in the passenger seat, travelled along Goulburn Street mounted the refuge.  Stracey reached out and took hold of the handbag.  Ms Ricketts did not let go and called for help as she was forced to run alongside the vehicle.  The vehicle drove into the middle of Goulburn Street and accelerated, thus forcing Ms Ricketts to let her handbag go to save herself from falling under the vehicle or being hit by others.  Mr Ricketts saw the handbag being pulled into the vehicle through the driver’s side window.  Just three minutes later, some 400 metres away, Ms Po Cin Lim was standing at the traffic lights waiting to cross the street, wearing a handbag over her right shoulder.  The vehicle approached her slowly and, when it neared Ms Lim, Sparks leaned out of the passenger’s side window and grabbed her handbag.  Ms Lim yelled out “No” as Sparks pulled the handbag towards the vehicle.  The van then accelerated with the deceased being dragged alongside for a number of metres, eventually falling onto the concrete kerb, striking her head.  The vehicle did not stop and Ms Lim’s handbag was last seen being pulled inside the van. 

6. Ms Lim was treated at the scene by ambulance officers and was then conveyed to St Vincent’s Hospital where she underwent emergency surgery.  However, she died at 6.15 pm on 6 October 1987. 

7. In the meantime, around 2pm on the day of the robbery, two men were observed in Centennial Park abandoning the Holden.  Shortly afterwards a Nissan motor vehicle was stolen from the near vicinity. 

8. On the afternoon of 6 October 1987 Sparks attended the home of Phillip Stracey, David’s brother and told him, in substance, that he and David had stolen a Holden to carry out robberies on female victims in the city.  Later that evening, in company with Sparks, Phillip Stracey went to Centennial Park where they cleaned the Holden to eliminate any forensic evidence that might identify either Sparks or David Stracey.  Two days later, on 8 October, the Holden was located by the police and property belonging to both Ms Ricketts and Ms Lim was found inside.  As I have mentioned, it is accepted by the Crown that, at the time he helped Sparks to clean the car, Phillip Stracey was unaware that Mrs Lim had been robbed or killed.

9. On 9 October 1987 Phillip Stracey was at the home of a friend when Sparks asked that friend to conceal the stolen Nissan at the premises.  When this was refused, Sparks and Phillip Stracey stripped it and then disposed of it by abandoning it in a nearby street.  When it was found by police later on that day the vehicle had registration plates which had been attached to another car reported as stolen some three days earlier.  This car was later recovered partially stripped. 

10. Forensic examination of the two motor vehicles and the property found in them revealed a number of fingerprints which, unfortunately, were of poor quality and unsuitable for computerised searching.  Initial analysis of the results did not then identify any person of interest. 

11. An autopsy revealed that Ms Lim sustained extensive bruising, abrasions and very severe head injuries. The direct cause of death was a head injury with brain damage.

12. So far as the third charge on the Sparks’ indictment is concerned, the agreed facts are that he entered a real estate agency armed with a blood filled syringe and a knife, threw an empty plastic shopping bag towards two female staff members and demanded that they fill it with money.  When neither complied with this demand he went to several desk drawers, where he removed cash and a number of bank cheques and also took two handbags.  When he left the premises he was seen to enter a Chrysler motor vehicle which had been reported stolen three days earlier.  The vehicle was later recovered and the blood filled syringe and several bank cheques taken from the agency were found.  Sparks was identified from fingerprints on one of the bank cheques and the DNA profile derived from the blood filed syringe.

    The investigation

13. Police received information from anonymous persons nominating “Glenn Sparks and his brother” as responsible for Ms Lim’s death and indicating they had recently been released from Silverwater Correctional Centre.  However, for reasons unknown, their fingerprints were not submitted for comparison and the investigation did not focus on them at that time.  In July 2008, however, a fresh investigation was initiated by the NSW Police, Force Unsolved Homicide Team.  A further analysis of the forensic material identified Sparks’ fingerprints both outside the Holden and on a credit card voucher belonging to Ms Ricketts found inside it.  He was also identified from fingerprints located on an item found within the Nissan. 

14. On 29 May 2009 Sparks was arrested in Queensland but, when interviewed, denied any knowledge of any of the offences and offered no explanation as to how his fingerprints came to be on the vehicle or on the other items or how his DNA came to be in the syringe or his fingerprints on the bank cheque.

15. On 4 November 2009 David Stracey voluntary attended Grafton Police Station in response to police inquiries which had come to his attention only shortly before.  He was arrested and participated in an electronically recorded interview in which he admitted being the driver of the Holden when it was used in the attempted robbery of Ms Buchanan, the robbery of Ms Ricketts and the robbery that resulted in the death of Ms Lim.  Stracey claimed to have been unaware at the time that Ms Lim was dragged alongside the vehicle and said that he only learned of her death the following day.  He said that, if he had known Ms Lim had fallen to the ground, he would have stopped and rendered aid or called an ambulance.  So far as the robbery of Ms Ricketts was concerned, Stracey admitted he was the driver of the vehicle but said he had no specific memory of the offence.  He recalled that he had unsuccessfully attempted another robbery on that day and, in effect, admitted that this was the attempted robbery of Ms Buchanan.  Stracey expressed remorse for his actions on that day and his regret for not contacting police earlier.  He claimed that his drug addiction had led him to commit these offences and that he was affected by drugs at the time.

    Subjective features:  Glen Neil Sparks

16. The Crown tendered a presentence report dated 11 August 2010 from the Probation and Parole Service together with a victim impact statement made by the grandson of the deceased.  Sparks gave evidence and, on his behalf were tendered a psychological report dated 25 August 2010 from Ms Robilliard, a report from a Major Pearson of the Salvation Army, Bundaberg, which is undated but refers to events in 2003, a dated document from the same organisation of 27 February 2004, an affidavit from a psychologist, Mr Alan Taylor of 14 April 2004, a reference from Mr T D Osborne of the Salvation Army in respect of this offender dated 23 May 2005, a discharge health report from the Queensland Department of Corrective Services and a psychological summary from the Hinkler Place Medical Centre of 6 September 2006.

17. Sparks’ criminal record commences with offences of stealing and illegally using a motor vehicle in the Children’s Court in September 1977 when he was just short of his 14^th birthday.  A month later, at Minda Children’s Court he was convicted of three charges of taking and driving a conveyance and, a little over a year later, convicted of stealing a motor vehicle and, on appeal to the District Court, placed on probation until his 18^th birthday and required to accept the supervision of the Department of Youth and Community Services.  Four years later, when 19 years of age, he was convicted and fined for offences of dishonesty and sent to prison for the first time, for six months.  In 1984 came a further series of stealing offences and, in February 1985, his first conviction of a drug offence, being the use of heroin, for which he was fined.  He was also convicted on this occasion of receiving and stealing a motor vehicle.  Further convictions for dishonesty offences occurred in 1986 and 1988 interspersed, in 1987, with a further using of a prohibited drug.  In November 1987 for a number of these offences he was sentenced to four years imprisonment with a non-parole period of two years from 26 August 1988.  In 1990 he was convicted of two offences of armed robbery (using a replica pistol) and was sentenced to an effective minimum term of three years with an additional term of five years.  In December 1993 he was convicted of escaping from lawful custody and sentenced to 18 months imprisonment commencing 13 August 1993.  Further terms of imprisonment followed in 1993 for breaking, entering and stealing and drug offences.  Convictions for breaking and entering and possessing housebreaking implements occurred in 1998 with concomitant sentences of imprisonment, repeated in 1999 larceny, taking and driving a conveyance without consent followed in 2001.  In Queensland, offences involving the unlawful entry upon premises were committed in 2003, 2005 and 2008.

18. The Probation and Parole Service presentence report commences with the unpromising sentence, “Mr Sparks has been known to this Service for approximately 25 years.”  The history of Sparks’ contact with the Probation and Parole Service and its Queensland equivalent is as follows –

    Mr Sparks has been known to this Service for approximately twenty five years.  Initial contact with this Service was prior to Mr Sparks' release on Parole in August 1985.  In November 1985 Mr Sparks' parole was revoked due to re-offending.

    Mr Sparks was released to parole supervision in 1987 and returned to custody within six months.  He was released to parole supervision in December 1989 and was returned to custody in June 1990.  In February 1993 Mr Sparks escaped from a Works Release Program at Silverwater and was arrested in May of that same year.  Released to parole in 1996 he again was returned to custody for re-offending.  Mr Sparks was subject to a breach of his Parole Order x 2 due to his unknown whereabouts when he was released from custody on the 21 November 1998.

    Mr Sparks was supervised on a Parole Order in 2001 by this Service and supervision was deemed satisfactory; however, Mr Sparks failed to receive counselling regarding his drug use.  The Parole Order was transferred to Queensland Corrections and according to Bundaberg Probation and Parole, Mr Sparks' supervision was deemed satisfactory.

    According to Queensland Probation and Parole Mr Sparks has been known to Queensland Corrections since 2001 and was in his fifth episode with Queensland Corrections before his extradition to New South Wales.

    In 2005 Mr Sparks was supervised by Queensland Probation and Parole on a Parole Order and reported twice.  Mr Sparks' Parole Order was cancelled due to a positive urinalysis result for morphine and amphetamines.  He served the remainder of this order in custody.

    Mr Sparks is currently on a Prison Probation Order that was received on 8 April 2008 for thirty two months, expiring on 7 December 2010 with a term of eight months imprisonment.

    Due to a positive urinalysis test for un-prescribed benzodiazepines, Mr Sparks was in breach of that order on 31 March 2009; however, no action was taken due to the extradition of Mr Sparks to New South Wales for the matter now before the Court.

    Mr Sparks is currently housed as a SMAP (Special Management Area Placement) inmate at Goulburn Correctional Centre at his own request and incurred a reprimand and caution for 'Fight or other Combat' on the 7 August 2009 at the Metro Remand and Reception Centre.

1. So far as his family background is concerned, it appears that Sparks had a disturbed childhood due mainly to his father’s excessive alcohol consumption and violent outbursts, which resulted in his parents separating when he was 12.  He has reported experiencing abuse from his family, unknown persons and authorities whilst in care.  Sparks’ mother died in 1990 and he has not seen his father since he was 12.  Sparks has three siblings but has had no contact with them since 1996.  His relationships ended unhappily and he has had no contact with his two children for about eight years.  At the time of his arrest he was residing in a boarding house in Bundaberg.

2. Not surprisingly, Sparks education is limited, he completed Year 7 at 13 years of age and, because of recurring imprisonment, his work experience is extremely limited. 

3. Sparks has had a long term poly-drug history, commencing at the age of 13 with marihuana and then LSD at the age of 16.  He started using amphetamines and heroin at 17 years of age and was a heavy user at the time of the present offences.  He completed several alcohol and other drugs programmes in custody but without any change in behaviour.  The Probation and Parole Officer has assessed Sparks as being suitable for the supervision of the Service at the appropriate time.  The report of Dr Robilliard contains a family history consistent with that contained in the presentence report, although considerably more detailed.  Certainly, I would readily accept that his youth was extremely troubled involving, amongst other things, serious physical and emotional abuse and, at times, sexual abuse.

4. So far as the present offences are concerned, Sparks was 26 years old at the time, living at Maroubra in an unstable relationship with his then partner and their two children.  He was unemployed.  He and David Stracey, whom he had known since childhood, had been using drugs together and helped each other to support their respective habits.  He said that he was in the front passenger seat at the time of the offence involving Ms Lim and grabbed her handbag with his left arm.  He said the bag caught on the door lock.  He said that when Stracey saw the bag was inside the car he took off.  Sparks said he did not look back and did not see Ms Lim fall, finding out about her death from a newspaper report a few days afterwards.  He said that he was horrified when he learnt of it.  He said he contacted Stracey to discuss it with him and has never talked to Stracey again.  Sparks said that the death of Ms Lim was never out of his mind and was easily triggered by news items about accidental deaths or by the sight of older ladies who looked like her.  He said that he felt he was the cause of her death and from then on he felt “there was no point getting right or getting married because this would come back one day”.  He said that he lacked the courage to report to police although he never tried to hide his identity or change his name.  So far as the armed robbery committed at the estate agency on 11 October 1997 was concerned, he said that he was then heavily drug dependent and at that time felt hopeless. 

5. Sparks told Ms Robilliard that when he was questioned by police in May 2009 concerning the offences he felt it was “like a giant weight had been taken off”.  He said that he always thought of Ms Lim’s family and how they would have been affected by her death.  Accepting that he cannot change what happened, he said he hoped that his arrest and imprisonment “may give them closure”.  He wrote a letter of apology, expressing in simple language regret and remorse for Ms Lim’s death. 

6. Psychological testing revealed that he is “soundly intelligent although his verbal skills are not well developed”.  Ms Robilliard considered that he had demonstrated the cognitive ability to improve his education and undertake vocational skills training.  She considered that his drug use was not a recreational activity but “rather it has been self medication in an attempt to deal with emotional distress and depression”.  Her report concluded with the conclusion, not surprisingly, that Sparks’ long term entrenched heroin dependence and substance dependence disorder with regard to other drugs is a major problem that needs to be dealt with.  She makes the point that, when ultimately released from custody, Sparks will probably require supported reintegration into the community in light of his lack of family or friendship ties or supports and should consider long term residential rehabilitation to ensure ongoing control of his drug addiction.  He will need a community based support network. 

7. This report highlights, I think, the substantial obstacles in the way of Sparks’ rehabilitation. 

8. Sparks has not, however, completely cut himself off from worthwhile community activity.  In 2003 he was thanked for the “many hours of valued service” he gave to helping in the Tom Quinn Community Centre in Bundaberg.  Mr T D Osborne, the Community Service Manager for the Salvation Army Tom Quinn Community Centre wrote a testimonial on 23 May 2005 (in connection with further criminal charges being faced by Sparks) in which he says that he had known Sparks for the past two years as a volunteer in the Centre and he found him to be a “diligent, enthusiastic and competent worker in our restoration workshop”.  He was well liked by the many volunteers and other participants who frequented the Centre.  Mr Osborne commented that “it is very unfortunate that he relapsed into criminal activities that we thought were behind him”, and that in the time leading up to his incarceration Sparks had displayed genuine remorse for his actions and had begun to fully embrace the opportunity to better his life through the Salvation Army, with which he had kept in constant touch whilst in gaol.  A post release management programme was proposed by Mr Osborne that, of course, depended upon a genuine desire to rehabilitate himself, which Mr Osborne evidently believed Sparks had.  Regrettably, in 2008, as I have mentioned, came further numerous offences of breaking and entering, stealing and unlawful use of a motor vehicle.  I do not say that Sparks did not attempt rehabilitation or that his statements in this regard were insincere.  They were, however, unsuccessful. 

9. Mr Alan Taylor, a psychologist practising in Bundaberg, saw him in the early part of 2004 with indications of severe clinical depression together with other symptoms of anxiety and paranoia.  He had responded well to therapy and Mr Taylor thought his prognosis was reasonably good.  The report had been prepared for sentence proceedings in Bundaberg concerning offences of forgery, attempts to dishonestly obtain property, eight charges of breaking and entering premises and committing an indictable offence, five charges of unlawfully using a motor vehicle, breaching a suspended sentence and some driving offences, as a result of which he was sentenced to imprisonment for 27 months with recommended eligibility for parole after serving 11 months. 

10. To complete the documentary picture, in December 2006 a GP Mental Health Care plan prepared by the Hinkler Place Medical Centre recorded Sparks’ mental health issues as anxiety, depression and paranoia.  He was at that time on a methadone programme but, mentioning this to Ms Robilliard, Sparks said it was not helpful to him.

11. Sparks gave evidence in the sentence proceedings, consistent in the main with the material to which I have already adverted but adding further information.  He repeated what he said to Ms Robilliard about his continuous reflection on “the day I took Ms Lim’s life”.  He said that there is nothing he felt he could do to change what had happened and that it would always be there.  He said that when he and Stracey had left the scene they did not know that Ms Lim had been injured and found that out a couple of days later, at first that she had been injured but then that she had died.  He said that he “was horrified and didn’t know what to do …”.  He said that when he was interviewed by police about the death of Ms Lim he denied any knowledge of it.  He said that he was in shock because so much was going on at the time and “doing so much time in gaol over the last 30 years, it becomes natural not to admit to anything until you have had some legal advice or something like that, but mostly fear”.  He said when he pleaded guilty to the manslaughter in the Local Court, “It was like, the things that were going through me head is that there has been a great weight lifted from me shoulders but at the same time now maybe that Mrs Lim’s family can have some sort of resolve to the whole matter.”  He said that his crimes were committed to get money for drugs and he conceded that having regard to the robberies, he was a violent person.  His move to Bundaberg was prompted by the desire to have a fresh start but, after a time, “I just seem to gravitate towards people much like myself”, started abusing drugs again and committing further crimes and going to gaol.  Sparks is presently on protection for reasons unconnected with his crimes and it is likely that he will remain on protection during any sentence. 

12. He accepted that the most important thing for him to do is to address his drug use problem and he hopes to participate in programmes offered in prison dealing with this issue.  He said that although he has failed to overcome this problem in the past, he has had partial success and wishes to learn from those attempts for the future.  He said that he realises that he cannot reconnect with his family or his children unless he stops using drugs. 

    Findings:  Glen Neil Sparks

13. So far as the objective circumstances of the offences are concerned, the two earlier victims were not injured, though the potential for Mrs Ricketts to have suffered serious injury is obvious. They must both have been very shocked and frightened.  So far as the death of Mrs Lim is concerned, the real potential for injury regrettably resulted in the worst of all possible injuries, her death.  I accept that Sparks at the time was affected by drugs and that he had not foreseen the risk of injury.  I also accept that he was unaware that Mrs Lim had been injured, let alone killed until, as he said, he learned of it through the media.  That there is always a very real risk of serious injury in committing a crime involving actual physical violence, especially in the circumstances here, is clear and a moment’s thought would have made this obvious.  The risk of causing a fatal injury though perhaps not great, was certainly real.  The charge of manslaughter, of course, necessarily implies that there was no intention to cause death or grievous bodily harm nor any reckless disregard for human life.  The basis for the charge is the unlawful use of violence in circumstances where a reasonable person would have realised that there was an appreciable risk of serious injury. 

14. Subjectively, I accept that Sparks is genuinely remorseful for having caused Mrs Lim’s death and that he was shocked to discover that it had occurred.  Although he has committed other robberies since then, none have involved the actual application (as distinct from the threat) of violence.  I do not see that there is anything in his record which suggests that he is inclined to violence.  Accordingly, in light of his history, although one must have considerable scepticism about his ability to remain law abiding, I think that the likelihood of his committing a similar offence or even a robbery carrying the kind of potential for serious injury is unlikely. 

15. So far as the robbery of the real estate agency is concerned, Sparks had then been diagnosed with hepatitis C and it is clear that the syringe was filled with his blood.  Accordingly, had there been any kind of scuffle and one of the staff had been injured with the needle, there was a real risk that she might contract the disease.  Whether this risk actually crossed the mind of Sparks may well be doubted but nevertheless it is an objective circumstance that aggravates the offence.

16. The robbery offences carried a maximum penalty of 20 years.  Although the offences were committed in company, this fact did not, in the circumstances, increase their culpability.  The theft of the motor vehicle carried a maximum term of imprisonment of five years.

17. Objectively, the crimes of robbery and attempted robbery must be regarded as serious examples of their kind, having regard to the very real danger of the infliction of serious injury.  Making every allowance for Sparks’ appalling upbringing, which must naturally excite some sympathy and which contributed to his drug addiction (to my mind the most significant contributor to his criminal conduct and to these crimes in particular), taken together with his remorse, can properly result in some, though I think only slight leniency.  In a sense, these crimes were opportunistic but they were clearly part of a premeditated pattern of criminal conduct. 

18. In light of the short space of time in which the offences of 5 October were committed, the fact that they were part of essentially the one enterprise, and the delay in sentencing, I consider that the sentences should be concurrent.  The calculation of a cumulative effect would be, in these circumstances, so relatively limited as to amount to artifice and give to the sentencing process in this case an illusory impression of precision.  However, the armed robbery of 11 October was a serious separate crime and requires a degree of accumulation.

    Evidence in the Sentence Proceedings:  David Stracey

19. This evidence comprised a presentence report from the Probate and Parole Service, Stracey’s criminal convictions and the transcript of his interview with police on 4 November 2009, a letter from his wife dated 26 August 2010, a report from Mr James A Pitts, Chief Executive Officer of Odyssey House, a report by Mr Tim Watson-Munro, consultant forensic psychologist dated 27 August 2010 together with Stracey’s evidence. 

20. Stracey’s criminal history commences, so far as is presently relevant, with four convictions for receiving in October 1984, when he was 23 years of age.  He received concurrent sentences of two years imprisonment with 12 months non-parole period.  In October 1984 he was convicted of possessing a prohibited drug, being LSD, and was sentenced to a two year fixed term concurrently with the sentences for receiving but resulting in the absorption of his parole period with a prison term.  There followed 12 charges of stealing, two charges of breaking, entering and stealing and two charges relating to the possession of Indian hemp and the use of heroin.  Aside from the short sentences for these latter crimes, he was sentenced to concurrent terms of 12 months imprisonment except for one dealing offence for which a two year sentence with a non-parole period of 12 months was imposed.  These convictions were followed by a conviction for robbery with striking in 1985, a further robbery in 1986, and stealing and illegal use of a conveyance in 1987.  In 1991, however, he was treated with unusual leniency in the District Court in respect of two counts of stealing from a person, a larceny of a motor vehicle, the possession of implements to enter a conveyance and two charges of assaulting a police officer in the execution of his duty and attempting to escape lawful custody, with a number of other offences taken into account on what was then a Form 2.  The Court deferred sentence on condition that he be of good behaviour for five years and accepted the supervision of the Community Corrective Service.  On 25 June 1993 Stracey was convicted of one offence of stealing from the person upon which he was placed on a recognisance under s 558 and ordered to pay compensation.  Most unusually, having regard to Stracey’s undoubted drug addiction and his by then serious record extending over seven years or so, his list of convictions ends.  I return to this matter shortly.

21. The presentence report notes that Stracey’s first contact with the Probate and Parole Service was for the purpose of preparation of a presentence report for the 1984 convictions.  It was noted that he re-offended during the period of supervision.  Following his release on parole for the offence of robbery with striking for which he was sentenced on 23 January 1985 with a term of four years and six months imprisonment and a non-parole period of two years, he committed a number of assaults and a robbery and received a further term of imprisonment, pursuant to which he was ultimately released to parole on 12 June 1987 regarded as a high risk parolee.  The parole order expired on 11 June 1990 and it follows that the present offences were committed whilst he was on parole.

22. The report notes, in respect of his family situation, that he is the eldest of three children and was raised in a caring and supportive family although, because his parents travelled continuously, he was repeatedly required to change schools.  Following a serious injury which incapacitated his father, Stracey left school as soon as he was able in order to assist with his father’s care and entered the work force soon after.  Stracey reported using cannabis when he was about 13 years old and, by the time he was 14, was using amphetamines, moving to heroin when he was about 18 years old.  His habit was daily until, following the deferral of his sentence to which I have referred, he entered Odyssey House, a fulltime rehabilitation facility, for twelve months.  This was a success.  (I should mention, however, that he committed some further offences in June 1992 and was called up but the Court decided to take no further action.)  Stracey reported that since that time he has not used any drugs and there is good reason for accepting this evidence.  The Probate and Parole Officer commented that a perusal of his criminal history aligns with his claim.  The officer noted that Stracey voiced empathy for the victim’s family and concluded that he appears to have lived a law abiding life since completing the Odyssey House programme in about 1992 (the precise dates are somewhat uncertain but nothing turns on this), having been regularly employed in the ensuing period and receiving strong support from his family.  The officer concluded that Stracey was suitable for a medium to low level of intervention by the Service commensurate with the assessed risk. 

23. A letter from Mrs Stracey was tendered since she lives outside Grafton and had just recently acquired a job which made it financially impossible for her to come to Sydney for the proceedings.  The Crown takes no issue with this explanation.  Mrs Stracey explains that she first met Stracey in early 1992 at her mother’s house when he accompanied her brother, then in Odyssey House with Stracey.  They continued to communicate and eventually got together.  Stracey finished the course at Odyssey House and the couple started to live together.  He got a secure job with a motor vehicle company.  The pair got married in 1996 and their daughter was born early that year.  They bought a house together in Minto but decided later to move to the country and sold up and moved to Queensland where they lived happily for five and a half years.  They set up their own house maintenance business which was, it seems, moderately successful.  Because of Mrs Stracey’s mother’s situation, they decided to move closer to her.  Stracey got work doing home maintenance with a Housing Commission contractor and family life continued.  Mrs Stracey said that her husband did not use drugs at any time or commit any crimes and “has always been a wonderful husband and father”.  In addition to his own daughter, Stracey treated his wife’s daughter by a previous marriage as his own and made contact with her eldest son from whom she had been estranged for many years.  Mrs Stracey said that they only found out about the crime, meaning I think the manslaughter offence, when her husband was arrested and, not surprisingly, it was a huge shock to the family.  She said that they “found it hard to accept that the David we have lived with and known for so many years would have been involved in something like this”.  In addition, the children did not know that he had been a drug user or that he had been in gaol and they needed to come to terms with this as well.  The fact of Stracey’s arrest was front page news in the small village where they live and it has been a source of considerable embarrassment.  It is clear that Stracey has his family’s support and that they will take up their lives together when he leaves prison. 

1. Mr Pitts, Chief Executive Officer of Odyssey House states in a letter addressed to the Court that he has known Stracey for about 20 years, first coming to know him when he was serving a term of imprisonment and Mr Pitts conducted information sessions for inmates seeking to access the Odyssey House drug and alcohol rehabilitation programme.  He says that Stracey was subsequently admitted to the programme in about 1992 and completed it in about 1994, at which time he was free from all illicit drugs.  Mr Pitts said that he saw Stracey on a few later occasions when he was with his family and noted that he was still drug free, that he was employed and seemed genuinely happy with his life.  He justifiably described this as a successful rehabilitation.

2. Turning now to the report of Mr Watson-Munro, I do not intend to set out further details of Stracey’s personal history.  However, I should mention that Mr Watson-Munro notes that Stracey had stated to him that, so far as the killing of Mrs Lim was concerned, he had been burdened with feelings of sadness, guilt and anxiety of the past 23 years, bursting into tears when he said, “I know how I would feel if it had been my mother”.  He told Mr Watson-Munro that he had been troubled with recurring nightmares about her death.  Stracey did not attempt to diminish his culpability in relation to what occurred.  Other matters are mentioned in the report which do not call for discussion.  Psychometric testing did not disclose any abnormalities either intellectually or otherwise although he suffers from a moderate degree of continuing depression referrable to feelings of guilt (as I understand it both for what occurred to Mrs Lim and also the problems caused to his family), emotional lability with tearfulness, impaired sleep and appetite and some diurnal variation of mood.  However, Mr Watson-Munro did not think that medication was necessary.  He accepted that Stracey had expressed genuinely profound remorse for his behaviour whilst not attempting to reduce his culpability for what had happened.

3. Stracey gave evidence in the proceedings and acknowledged, in substance, that it was the opportunity to go to Odyssey House which changed his life.  The Odyssey House programme was a residential fulltime one although he was able to take monthly leave and, towards the end, he met the woman whom he later married.  He said that, since that time, he has not used any illegal drugs nor has he been in trouble with the police.  He confirmed that he had been working consistently for the past 18 or so years, having raised his daughter and step daughter with his wife.  He has been completely drug free in that time.  He has re-established relationships with his parents.  When he was first interviewed on 4 November 2009 he initially denied having committed these offences, saying that he was scared and ashamed.  He then sought to obtain legal advice and the interview was suspended to enable him to do so.  However, when he was unable to speak with a solicitor he decided to go on with the interview nevertheless.  It was at that point that he admitted his involvement in the crimes.  He said that he was under the influence of drugs at the time and, in effect, he did not recall the exact details of what happened but did remember that he was driving the car on that day and “I caused that woman her injuries”.  He did not, he said, remember whether he committed the offences with Sparks.  He said that over the years the lady’s death had been playing on his mind.  He said that this had occurred at a time when he had done “a lot of nasty things”.  He said that this was why he handed himself in.  He said that he knew that it was only a matter of time before he got caught anyway.  He said that, had he known at the time that Mrs Lim was injured, he would have stopped and, if he did not, would have rung an ambulance.  He said that he would not “have just left her to die like that”.  He found out about her injuries and death when it was on the front page of the newspaper.  He also admitted to the prior offences involving Mrs Ricketts and Ms Buchanan although he did not recall the details.  He said that injuring Mrs Lim was an accident –

   I’m not out there to hurt anyone, but you know I was just feeding my drug addiction at the time, the same as the other idiot.  I shouldn’t call him an idiot, he’s just as much an idiot as I am because I shouldn’t have been in that …… position or put these poor people in that position.

   He said that there was no intention to hurt anyone but they planned to grab the handbag to obtain money for drugs.  He repeated that he had not got over the fact that he had killed Mrs Lim.

4. Stracey’s father also gave evidence.  He said that he was in court with his wife to support his son through the proceedings.  It is sufficient to say for present purposes that he had taken a severe attitude to his son’s use of narcotics but that, after he entered the Odyssey House rehabilitation programme, he visited him with his wife and was impressed with his son’s change of attitude and, since then, had renewed contact, at first fairly casually but then very closely.  The parents had been visiting Stracey whilst awaiting sentence in gaol.  Overall, he expressed strong family support for his son and confidence that he was not going to revert to drug use.  I thought Mr Stracey Sr was hard headed about his son and his judgment about his rehabilitation was realistic.

   Findings:  David Stracey

5. I have already referred, in dealing with Sparks, to the objective gravity of the offences.  Subjectively, Stracey had also had a substantial criminal record prior to the present offences, though it was not as serious as that of Sparks.  It came to an end, however, in 1992 and I am satisfied that, since then he has not only been drug free but also crime free.  Indeed, his life has been utterly transformed into that of a decent hard-working family man.  In a very real sense the person who has come before me is no longer the person who committed the serious crimes for which he must now be sentenced.  In Shore v R (66 A Crim R 37 at 47), Badgery-Parker J said, after a careful review of the authorities –

   “To my mind there is a clear distinction on the one had between cases…where delay occurs because of circumstances entirely outside the offender’s control …, and on the other hand, cases … where the only cause of delay was the applicant’s flight to avoid the consequence of his admitted criminality.  To allow leniency because of delay alone would be … to place a premium on absconding and would be entirely contrary to the public interest.  The proper course is that … which allows the sentencing judge to recognise the unhappy condition of an accused person living as a fugitive with always the fear that his crime might be brought against him but not to encourage absconding by affording any additional leniency in relation to it.  That is not to say that genuine rehabilitation during such period is to be entirely ignored … But inevitably, it cannot be given the same significance as in a case of the other sort.”

   Here, the delay is so long and the rehabilitation so marked as to justify a significant mitigation in sentence, though not as much as would have otherwise been allowed had the delay been due to matters beyond the offender’s control.  The demonstrated rehabilitation makes it unnecessary to regard the need for personal deterrence as significant.  Furthermore, as Howie J found in another case of substantial delay (AJB v R [2007] NSWCCA 51; 169 A Crim R 32) at [39] –

   “General deterrence was not a significant matter in the applicant’s case because in light of the very lengthy period that had transpired between the offences and the passing of sentence and his reform it was not appropriate to make an example of him to deter others from similar conduct.”

6. For the reasons mentioned in connection with Sparks, it is appropriate to impose concurrent sentences.

   Phillip Stracey

7. It appears that, when the offender became aware of the commencement of the police investigation and their suspicions of his involvement, he discussed the matter with his father by telephone on 24 November 2009 and agreed that he would hand himself into police three days later in the company of his father.  As it happened, investigating police located his whereabouts on the day before and he was taken to Wollongong Police Station where he was placed under arrest and interviewed.  He made full and, it appears, frank admissions as to his involvement in the offences, identifying both his brother and Sparks in effect as the principal offenders. 

8. The offender is now something over 47 years of age with a criminal history going back to the age of 14 when he was convicted on charges of stealing.  There followed a large number of thefts, often involving motor vehicles, and other offences of dishonesty.  Other offences of assault and breaching a domestic violence order followed in 1996 and 1997 with an assault occasioning actual bodily harm conviction in April 2001.  Other assaults continued, including assaulting an officer in the execution of his or her duty in 2005, with further assaults in 2006 and 2007.  Together with convictions for entering a building with the intention of committing an indictable offence.  Since he was arrested the applicant was convicted of an offence of common assault and taking and driving a conveyance, for which he was sentenced to concurrent terms of six months imprisonment.  So far as they go, the sentences imposed for these offences rather suggest that they were not serious examples of their kind but they indicate a clear inability to remain either consistently honest or to refrain from using criminal force.  Not surprisingly, the offender has been known to the Probation and Parole Service for many years.  The presentence report states that his response to supervision has varied between compliance and breach of supervisory orders.  He was last supervised following his release to parole in August 2008 and it should be noted in his favour that he had responded well to supervision at this time although it was only short, the supervision covering a period only of six months.  The offender had a very limited education history, leaving school without formal qualifications in Year 9 and his employment has consisted mainly of seasonal and casual jobs, the most recent of which was as a labourer for his father’s handyman business in 2008.  He sustained a serious back injury in 2009 with continuing problems and was in receipt of a disability support pension before his arrest.

9. As his record indicates, the offender has an extensive history of poly-substance abuse but, after undergoing a residential drug rehabilitation programme, managed to overcome his illicit drug use.  Regrettably, however, some years ago he resumed his abuse of alcohol, which has been a major problem for him for some time.  At the time of his arrest, however, the offender had voluntarily entered a nine week residential programme and was making good progress when he was arrested.  So far as the future is concerned, he wishes to resume the residential programme which was interrupted.  He has significant family support including his estranged wife, their children and his own immediate family.  The offender stated (and there is some independent corroboration for this being so) that he had wanted to come forward when he had seen the news of Mrs Lim’s death but had been conflicted because he wished to protect his brother and that this conflict and consequent feelings of guilt had been a significant feature in his alcohol abuse.  The offender has expressed deep regret for his involvement in the offences.  I am minded to accept that he is genuinely remorseful, not only because of what he has said to others, but the circumstances in which he came to be arrested. 

1. Both the offender and his father gave evidence before me.  I thought that the offender’s evidence was candid, and that his desire to complete the rehabilitation programme is genuine.  So far as Mr Stracey Snr’s evidence is concerned, he said that he had visited his son regularly since he was taken into custody and, if his son continues with his decision not to abuse alcohol, he can provide accommodation and will find him employment.  I thought Mr Stracey has a firm and realistic attitude toward his son and will indeed be of significant help in his son’s rehabilitation.  I should mention that the offender’s estranged wife gave evidence on the offender’s behalf, confirming her preparedness to support him in his continuing rehabilitation. 

2. Statistics are available from JIRS for the period July 2002 to June 2009 that disclose 69 cases of being an accessory after the fact to robbery either armed or in company, only 35% of offenders were imprisoned, with the median sentence in the order of two years and a median non-parole period of 12 months.  These cases include those of offenders who have pleaded guilty.  I have not been referred to sentences for receiving a stolen motor vehicle.

3. Two distinct offences were committed by the applicant, though only some days apart and both involving Sparks.  In 1987 I have no doubt that concurrent sentences would have been imposed, the focus then being on the appropriateness of the total sentence reflecting the overall criminality.  I am of the view that, having regard especially to the delay in sentencing, the sentences should be concurrent.  Although neither offence was trivial, the offender had nothing to gain from cleaning up the vehicle and little to gain from receiving.  Neither was instigated by him.  They are both at the lower end of seriousness for this kind of offending.  In my view, the offender should obtain the utilitarian discount applicable to his early admissions and pleas of guilty although this exceeds what was usually allowed at the time of the offences.

   The Previous Sentencing Regime

4. As at the date of the offences, the Crimes Act (1900-1989) s 18(1)(b)/s 24 provided for a maximum penalty of life imprisonment for manslaughter.  This penalty was reduced to 25 years imprisonment by the Crimes (Life Sentences) Amendment Act 1989 commencing 12 January 1990. Having regard to s 19(2) of that Act, both offenders are to be sentenced on the basis that the maximum term of imprisonment for their offence is 25 years.

5. As at the date of the offences, s 97 of the Crimes Act (1900-1994) provided a maximum penalty of 20 years imprisonment in respect of the offences of robbery in company and assault with intent to rob.  Section 117/154A of the Crimes Act 1900 provided in respect of the offence of take and drive a conveyance a maximum penalty of five years imprisonment.

6. Although the offenders were, by virtue of their absconding, responsible for the delay in charging them with their respective offences, it seems clear that they are to be sentenced having regard both to the range of sentence imposed at the time of the commission of the offence and the sentencing practice at that time:  Shore v R (1992) 66 A Crim R 37. In R v MJR (2002) 54 NSWLR 368 (following R v PLV (2001) 51 NSWLR 736, which was inconsistent with although it did not mention Shore) a five member bench of the Court of Criminal Appeal reconsidered the question.  By majority (Mason P dissenting) the Court confirmed that, when sentencing for an offence a court should take into account (subject to practical limitations) the sentencing practice, including the applicable range of sentences for the offence in question, that were applicable at the date of the commission of the offence where sentencing practice had moved adversely to the offender. 

7. As a practical matter, the most significant changes in sentencing law were the repeal of the Probation and Parole Act 1983 and cognate Acts, the enactment and then repeal of the Sentencing Act 1989 and the enactment of the Crimes (Sentencing Procedure) Act 1999. In 1987, the first category of legislation, namely the Probation and Parole Act 1983 and cognate legislation governed sentencing in New South Wales. The most significant element of the sentencing regime at the time was the system of remissions, which were calculated after a sentence was imposed and, most commonly, permitted the release of the offender on parole after two thirds of the sentence had been served. Although this was said to require the offender to have remained of good behaviour whilst incarcerated, it was virtually automatic. In point of principle, a sentencing Judge was not permitted to take into account the availability of remissions since this was a matter for the executive government: R v Macleay (1990) 19 NSWLR 112. The restatement of this principle was important since, at the time, it was often said (and was, in my experience, likely to be true) that courts often increased the sentences which otherwise would have been imposed because of the effect of the remission system on the actual term served. It will be remembered that the remissions system came to be regarded as undermining public confidence in the administration of justice since the sentences actually imposed by the courts were not by a substantial margin the terms actually served in gaol. The Sentencing Act 1989, proclaimed on 25 September 1989, was expressly passed to “restore truth in the sentencing system in New South Wales” and “restore the integrity of public institutions of the State, particularly in the area of the administration of the justice” (Sentencing Bill, Second Reading, Hansard, 10 May 1989, p7905, quoted in Janet B L Chan, The New South Wales Sentencing Act 1989:  Where Does Truth Lie (1990) 14 Crim LJ 249), from which some of the following material is taken. 

8. Thus a major actual change since the offences were committed is the abolition of remissions.  Although it was not controversial that the sentences I now impose should make allowance for this change, I doubt that I can (and do not) do so:  AJB v R [2007] NSWCCA 51; 169 A Crim R 32; Bradbery v R [2008] NSWCCA 93.

9. Another major change concerns the relationship between what was then called the head sentence and the non-parole period.  My recollection is that it was overwhelmingly the most common practice in respect of all offences to set the latter at around one half of the former and not infrequently at even less.  In some judgments it has been suggested that the most common ratio was between one-third and one-half.  Ms Chan’s helpful article sets out the statistics for 1988, confirming (at least for that year) that the average percentage for the fifteen offences there noted, the overwhelming majority reflected a ratio of about 50%.  Since that calculation has the advantage of actual research and is for the year immediately following that with which I am concerned, it seems to me, that the present sentences should reflect this ratio.  The difference between the ratio then habitually applied and the present statutory calculus required by s 44 of the Sentencing Act 1999 also constitutes special circumstances allowing such a variation. 

10. The third major change in sentencing practice is the institution of a formalised structure for acknowledging the utility of pleas of guilty in the administration of justice.  Although this feature of a plea of guilty was long acknowledged (see Winchester v The Queen (1992) 58 A Crim R 345) as the Chief Justice observed in R v Thomson and Houlten (2000) 49 NSWLR 383 at 389ff, there was substantial (and, in my experience, justifiable) scepticism about the extent to which, in reality, any substantial allowance was made, especially for an early plea. In my view, the appropriate discount (here in the order of 25%) should be applied to the sentences otherwise to be imposed.

11. So far as the reduction in the maximum sentence for the offence of manslaughter is concerned, it is very much my impression that it did not have any significant effect on sentencing patterns for this offence, at least for manslaughter by an unlawful and dangerous act.  Although it was common to refer to the maximum, the sentences for this class were never calculated by reference to it, except in the sense that the maximum reflected the undoubted seriousness of taking life.  It should be borne in mind that manslaughter by provocation, or where there was diminished responsibility or excessive self-defence involved an intention to kill or cause grievous bodily harm and, by and large, would be much more objectively serious than manslaughter by unlawful and dangerous act.

1. More generally, it seems to me that the trend of sentences for provocation manslaughter and manslaughter by diminished responsibility (as it used to be known) have increased over the intervening years, despite the reduction in the maximum, as have sentences involving violence to a child.  However, whether this understanding is right or wrong does not matter since the category of manslaughter with which I am dealing in this case is very different and stands as a distinct category.  The circumstances found in this kind of case vary very widely and my own experience of past sentencing decisions in respect of it, going no further than an impression, is not sufficiently informative for me to take it into account.  I am certainly far from satisfied that a sentence passed today for the charge of manslaughter in the present circumstances would be likely to be greater than one passed in a similar case twenty three years ago, leaving out of account the issues of remissions, ratio between head sentence and non-parole period and utilitarian discount. 

2. I have been referred to a number of specific cases reflecting to a greater or lesser degree (and mostly the latter) the facts in the present case which, in a general sense have been helpful, but in the result largely emphasise the protean character of this offence.  In R v Marsh [2002] NSWCCA 151 appeals by the Crown and the offender against the sentence were dismissed. The offender had pleaded guilty to a count of manslaughter, a count of robbery in company (of the deceased) and a count of taking and driving the vehicle used in the offences. The sentence at first instance was a term of imprisonment of ten years and four months on the first of these offences, on the second a fixed term of six years and on the third a fixed term of 14 months, all three sentences to be served concurrently. The facts were, briefly, that the offender and his accomplice were driving in a stolen car when the offender suggested that they should snatch a handbag and they proceeded to look for a victim. The vehicle stopped about 50 metres from the victim, who was standing on the footpath. The co-offender alighted, approached the victim, grabbed her handbag and then got back into the vehicle. The victim pursued them, running alongside. The offender, who was driving, stopped the vehicle briefly and the victim partially entered it. He then accelerated and swerved the vehicle down the street in an attempt to dislodge her. The victim grabbed hold of the co-offender’s head, apparently to prevent herself from falling onto the road. The offender, still driving, punched her in the head a number of times and she fell from the vehicle about 40 metres or so further on, rolled onto the roadway, the rear tyre of the car striking her head. She was found unconscious and died shortly after from her head injuries. The starting point for the sentence was nominated as 13 years, and a deduction of 20% was made in light of the plea of guilty. The appellant had a substantial criminal record, including some serious offences. The Crown’s real complaint was that the direction as to concurrency failed to reflect the total criminality of the offender. In dealing with the offender’s appeal, Hidden J (Bell J agreeing, Meagher JA dissenting) described the sentence as “high in the range”, (as, indeed, had the sentencing Judge) but concluded that “it was rightly so, given the distressing facts of this offence”. Hidden J said, in respect of the robbery in company offence, that the sentence of six years was also “high in the range” but his Honour was not persuaded that the proper range was exceeded. The sentencing Judge was not satisfied that the offender had originally shown any remorse although in his subsequent consultation with a psychologist he had shown some insight into the extent of his criminality. No special circumstances were found and Hidden J rejected the offender’s complaint in this regard. In respect of the Crown appeal, Hidden J was of the view that it was open in the circumstances to the sentencing Judge to direct that all three sentences should be served concurrently and that the overall effective sentence was adequate to reflect the totality of the offender’s criminality.

3. In R v Perry; R v Roberts (unreported, NSWCCA, 7 March 1986) the appellants were convicted of murder and robbery with wounding on the same occasion and in respect of the same victim and sentenced to penal servitude for life for the murder and 14 years for the robbery; a non-parole period of seven years was imposed in respect of each offence. The crimes were committed in the home of the victim where the appellants had gone to obtain drugs. It was claimed that a sexual advance was made to one of the appellants, following which both of them attacked the victim with what Street CJ described as “a horrifying degree of savagery”. On leaving the victim’s home, the appellants took several items, which formed the subject of the robbery charge and also took the victim’s car to flee the scene. The Crown case was one of felony murder (although, as the Chief Justice observed this seemed to be a needless complication). Amongst other defences advanced at trial, Perry advanced a defence of diminished responsibility whilst Roberts advanced a defence of provocation. In the result, the summing up on the charge of murder was held to be deficient and the Court substituted a verdict of manslaughter against both together with acquittals on the robbery charge. Both appellants were aged 22 with “unsatisfactory” criminal records. The appellants were both sentenced to terms of fifteen years imprisonment with a non-parole period of ten years. (an exception to the general practice mentioned above as to the relationship between head sentence and non-parole period but significantly more generous than the 75% “default” under subsequent regimes).

4. In R v Jennar (unreported, NSWCCA, 4 March 1991) the appellant appealed against sentences following trial in respect of charges of manslaughter and robbery with wounding. The appellant, a drug addict who was “hanging out” had attempted to purchase heroin. He alleged a “rip off” and entered the supplier’s premises with a shotgun which he claimed was accidentally discharged, though, he claimed, that its safety catch was engaged. The appellant was charged with felony murder. He was convicted of armed robbery with wounding but the jury convicted him of manslaughter rather than murder. In respect of the first of these offences he was sentenced to 15 years imprisonment and, in respect of the second, 20 years, with both sentences to be served concurrently, and the non-parole period being 15 years. The appeal was allowed but, since the trial occurred prior to the commencement of the Sentencing Act 1989, it was necessary to translate the redetermined sentences.  Those sentences were, in the result, (rounding down by a few days) a minimum term of seven years and seven months and an additional term of two years six months in respect of both charges, to be served concurrently.  These sentences reflected a head sentence of 16 years with a non-parole period of 12 years. 

5. R v Stevens (unreported, NSWCCA, 15 August 1993) concerned an appeal against sentence which had been imposed in accordance with the Sentencing Act 1989 regime.  The appellant pleaded guilty to manslaughter and was sentenced (taking into account an offence of larceny of a motor vehicle) to a minimum term of seven years imprisonment and an additional term of two years four months imprisonment.  Briefly, the facts were that the appellant had been on a drinking spree and decided to go home early in the morning but, having no car, decided to steal one from a nearby car park.  He hotwired the vehicle and was driving it from the car park when the owner ran over, opened the driver’s door and endeavoured to stop it.  The appellant continued to drive the car, attempting both to keep control and to remove the owner.  He drove erratically along the street, eventually crossing onto the incorrect side and colliding first with a parked vehicle and then successively with the walls of two buildings.  The victim was caught between the frame of the vehicle and the driver’s door, which took the bulk of each impact, eventually falling to the footpath.  The vehicle then collided with a tree and finally with the side wall of another building.  The appellant fled.  The owner died from his injuries.  There were some subjective features favouring some mitigation:  the appellant was 18 at the time of the offence and, though from a stable home with the support of his family, had been born with a congenital serious physical disability and also was close to illiterate having had extreme difficulties in learning.  He was otherwise a good worker.  He had only a minor and irrelevant criminal record and the sentencing Judge accepted there were good prospects of rehabilitation.  It appeared to the Court on the appeal that the starting point for the sentence, absent the mitigating features, would have been in the vicinity of at least thirteen years.  The Court commented that such a sentence “would be a very high sentence for an offence of manslaughter for criminal negligence or for an unlawful and dangerous act, where the prisoner necessarily has to be sentenced on the basis that he had no intention of killing the victim and no intention of causing the victim serious injury.  The Court considered that the sentencing Judge’s view that the offence was a serious one was correct but that, in substance, the sentence did not give sufficient recognition to the fact that the appellant was taken by surprise and his capacity to think rationally was diminished by his drunkenness and he had no intention of causing any injury to the owner.  The sentence was reduced to one of eight years comprising a minimum term of five and a half years and an additional term of two and a half years. 

6. R v Dixon; R v Dunn unreported, NSWSC, 18 November 1994, concerned sentences imposed at first instance in this Court for offences of manslaughter and armed robbery with wounding.  The victim had been approached by three males whilst walking home from a railway station.  Dunn was armed with a bottle and Dixon with a wooden tree stake.  The victim was stabbed in the shoulder with the bottle and hit a number of times with the stake.  He fell to the ground and his wallet was stolen.  The victim was later treated at hospital for a wound to his shoulder and, some five hours later, was allowed to leave without suffering permanent injury.  After the robbery the two offenders went to a parkland area where they continued to drink with others and decided that they would rob another victim.  They followed a 69 year old man who was tackled to the ground and then punched and kicked a number of times, his pockets searched, his wallet and money removed.  Witnesses came across the victim who was taken to hospital where he died some hours later.  He had suffered a cerebral haemorrhage, five broken ribs, several lacerations and extensive bruising.  The sentencing Judge treated the crimes as part of the one enterprise although they were separate events.  Each of the offenders was just over 16 years of age, one of them having a relatively serious record but the other no relevant matters.  The sentencing Judge accepted that the offenders were significantly affected by alcohol at the time of the offences and had exhibited remorse.  His Honour considered that the factors referred to in R v Fernando (1992) 76 A Crim R 58 were applicable, in light of their Aboriginality. In the result, Dunn was sentenced to an overall sentence of ten years six months imprisonment comprising a minimum term of six years and an additional term of four and a half years, special circumstances having been found. In respect of the robbery, a fixed term of five years was imposed, both sentences to be served concurrently. Dixon was sentenced to a term of nine and a half years comprising a minimum term of five years with an additional term of four and a half years, again in the light of a finding of special circumstances. On the second charge a fixed term of five years imprisonment was imposed, to be served concurrently with the first sentence.

7. In R vClarke [2001] NSWSC 703 the judgment was that of McClellan J (as he then was). His Honour said, in dealing with sentence –

   [15]……  There is a great need for the sentence which is imposed to be sufficient to deter and discourage others from carrying out crimes which may involve a risk to human life.  The snatching of bags from pedestrians always creates a risk to their safety but that risk is significantly increased when a motor vehicle is part of the overall plan.  The community is entitled to expect that people can use the pedestrian pathways without fear of their property being taken and their life threatened. 

   ……

   [17]The act of seizing the deceased’s bag, utilising a motor vehicle for the purpose of the crime, was both unlawful and inherently dangerous.  That crime, itself objectively serious, resulted in the sequence of events which led to the loss of [the victim’s] life – a crime with the highest degree of criminality. 

8. McClennan J noted that the offender had surrendered himself to police and revealed his own identity as an offender and that, without this action having been taken by him, the crime would have likely gone undetected and unpunished.  His Honour concluded that the offender showed genuine remorse and indicated that he would give evidence in the trial of the co-accused.  The early plea and assistance justified a total discount of 50%.  He had a bad criminal record and a problematical upbringing.  He was a drug user.  The starting point before the discount was an overall sentence of ten years imprisonment.  Subjective features justified a finding of special circumstances so that, in the result, he was sentenced to a term of five years with a non-parole period of three and a half years.  For the theft of the motor vehicle used in the robbery, which offence carried a maximum term of five years, his Honour’s starting point was 12 months overall and, in the result, a fixed term of six months to be served concurrently with the other sentence. 

9. As to the sentences imposed for the offence of accessory after the fact in 1987, I have been given no information.  I can only rely on my own impression that there has not been much movement in either direction since that time.  The most significant feature that distinguishes the sentencing outcomes of 1987 from those of today is the common practice in the earlier period of imposing non-parole periods of one third to one half or even less of the overall sentence and the automatic remission of one third of both head sentence and non-parole period. 

10. In respect of robbery and receiving offences, the article by Ms Chan to which I have already referred contains tables giving the average sentence imposed in 1988, for the former a head sentence of 4.4 years and non-parole period of 2.5 years and, for the latter, a head sentence of 3 years and a non-parole period of 1.4 years. For armed robbery the averages are, respectively, 6 years and 3.2 years. These figures broadly reflect my recollection as to the usual sentence for what might be regarded as a usual or common example of such offences. I have been provided with a table of some 34 sentences imposed for armed robberies under s 97(1) of the Crimes Act 1900 imposed between 1993 and 1998 with many examples of non-parole periods in the two to three year range.

    Victims Impact Statement

11. A Victim Impact Statement was received on behalf of the close family of Mrs Lim.  This eloquently states the terrible grief suffered by them as a consequence of her death and, of course, the way in which it occurred, which is still with them today.  I have dealt with this statement in accordance with the law.

    Sentences

    Glen Neil Sparks

12. For the crime of manslaughter:  Taking into account the matters on the Form 1, the commencing point is nine years imprisonment reduced to six years and nine months by virtue of the utilitarian discount of 25% arising from a plea of guilty.  Special circumstances are present having regard to the sentencing practice at the date of the offence.  I set a non-parole period of three years and six months commencing 29 May 2009.  The balance of the term of the sentence is three years and three months to commence on 29 November 2012 and end on 28 February 2016.

13. For the crime of robbery in company, the commencing point is five years, reduced to three years and nine months by virtue of the utilitarian discount of 25%.  Special circumstances apply as already mentioned.  I set a non-parole period of two years to commence on 29 May 2009.  The balance of the term is one year and nine months to commence on 29 May 2011 and end on 28 February 2013.

14. For the crime of armed robbery, the commencement point is six years and six months, reduced to four years and ten months by virtue of the utilitarian discount.  Special circumstances apply as already mentioned.  I set a non-parole period of two years and six months to commence on 29 May 2011.  The balance of the term is two years and four months to commence on 29 November 2013 and end on 28 March 2016.

15. The earliest date upon which the offender is eligible to be considered for release on parole is 29 November 2013.

    David Gordon Stracey

16. For the crime of manslaughter:  Taking into account the matters on the Form 1, the commencing point is seven years imprisonment reduced to five years and three months by virtue of the utilitarian discount of 25% arising from a plea of guilty.  Special circumstances are present having regard to the sentencing practice at the date of the offence and the substantial rehabilitation evident since 1992.  I set a non-parole period of two years commencing 4 November 2009.  The balance of the term of the sentence is three years and three months to commence on 4 November 2011 and end on 3 February 2015.

17. For the crime of robbery in company, the commencing point is four years, reduced to three years by virtue of the utilitarian discount of 25%.  Special circumstances apply as already mentioned.  I set a non-parole period of one year and six months to commence on 4 November 2009.  The balance of the term is one year and six months to commence on 3 May 2011 and end on 3 November 2012.

18. The earliest date on which the offender is eligible to be considered for release on parole is 4 November 2011.

    Phillip Stracey

19. In respect of the offence of being an accessory after the fact, taking into account the utilitarian discount of 25%, I set a non-parole period commencing on 26 May 2010 and ending on 10 December 2010.  The balance of term is one year commencing 11 December 2010 and ending 10 Deacember 2011.

20. In respect of the offence of receiving, I impose a fixed term of imprisonment of six months commencing 26 May 2010.

21. As a consequence of these sentences I order that you be immediately released to parole.

    **********

LAST UPDATED:
21 February 2011