R v Tracey - [2006] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v TRACEY & ORS
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Layton)
9 March 2006
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
Crown application for leave to appeal against sentence - respondents pleaded guilty to manslaughter - after reductions for their pleas of guilty and for time already spent in custody, respondents Tracey and Considine both sentenced to four years imprisonment with an eighteen month non-parole period, respondent Wallace sentenced to two years four months imprisonment with a nine month non-parole period - whether sentences manifestly inadequate - whether sentences reflected the need for general deterrence - whether the starting points for the sentences were too low - whether the offending falls into a distinct category of offences which are likely to recur - whether a standard or range ought to be set by the Court for this type of offence - whether the reductions for the pleas of guilty were too high - whether the non-parole periods were such a low proportion of the head sentence that they demonstrate an error of principle - consideration of principles governing Crown appeals - application for leave to appeal against sentence refused.
R v Payne (2004) 89 SASR 49; R v Osenkowski (1982) 30 SASR 212, discussed.
R v Elliott (2001) 121 A Crim R 254; Everett v The Queen (1994) 181 CLR 295; R v Angus [2004] SASC 317; R v Creed (1985) 37 SASR 566; R v Errigo (2005) 92 SASR 562; R v Ivic [2006] SASC 8; R v Nemer (2003) 87 SASR 168; R v Shepperbottom (2001) 121 A Crim R 69; R v Wilton (1981) 28 SASR 362; R v Yousef (2005) 155 A Crim R 134, considered.

R v TRACEY & ORS
[2006] SASC 66
Court of Criminal Appeal: Doyle CJ, Sulan and Layton JJ

DOYLE CJ: I would refuse leave to appeal against the sentences imposed by the Supreme Court.
The application for leave to appeal raises no issue of sentencing principle. Nor is this an appropriate case for the court to indicate a sentencing standard. The offence of manslaughter occurs in circumstances that vary widely. It is not practical to establish a standard or benchmark that will accommodate the variations: R v Angus [2004] SASC 317 at [39]. Nothing would be achieved by trying to do so. Nor do these particular offences represent a distinct category of manslaughter for which a benchmark or sentencing standard can usefully be indicated. Nor has the sentence been shown to be so disproportionate to the seriousness of the crime as to require intervention. That being so, it is not appropriate to grant leave to appeal: R v Payne [2004] SASC 160; (2004) 89…

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.

Continue reading R v Tracey

Details

AGLC: R v Tracey [2006] SASC 66
Case: [2006] SASC 66
Decision Date: 9 March 2006

CaseChat Overview and Summary

The Crown applied for leave to appeal against the sentences imposed on Tracey, Considine, and Wallace, who were convicted of manslaughter in connection with the death of Stuart Watson. The Crown argued that the sentences were manifestly inadequate, did not reflect the need for general deterrence, and that the reductions for the pleas of guilty were too high. The appeal focused on whether the sentences were so far below an appropriate range of sentences that they demonstrated an error of principle or would shake public confidence in the administration of justice.

The court examined the principles governing Crown appeals and the need to ensure that sentences are not manifestly inadequate. The court considered the nature of the offence, the need for general deterrence, and the appropriate range of sentences for manslaughter. The court also evaluated the reductions for the pleas of guilty and the non-parole periods. In the case of Wallace, the court noted that with the reduction for the plea of guilty and credit for time already served in custody, the non-parole period ordered was nine months, which was not manifestly inadequate. The court concluded that the sentences were not so far below an appropriate range of sentences that they demonstrated an error of principle or would shake public confidence in the administration of justice.

The court held that the sentences were not manifestly inadequate and that no error had been demonstrated. The appeal for leave to appeal against the sentences was therefore refused. The court's decision was based on a thorough analysis of the principles governing Crown appeals and the specific circumstances of the case. The outcome of the appeal highlighted the importance of ensuring that sentences are appropriate and reflect the principles of justice and deterrence.

Orders

Orders of the court

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Background

Background to the litigation

Tracey, Considine and Wallace were all charged with the murder of Stuart Watson. Tracey and Considine pleaded guilty to manslaughter, after the trial Judge delivered her rulings following a lengthy voir dire hearing. Wallace maintained his plea of not guilty to the charge of murder. The Crown filed a fresh information charging him with the offence of manslaughter on 2 September 2005. Wallace applied to stay the proceedings. The Judge declined to do so. Wallace pleaded guilty to the offence of manslaughter on 12 September 2005.Facts The offence occurred at the house of Elizabeth Considine, the mother of the respondent Joshua Considine, on 31 July 2002, at 3 Filsoll Street, Elizabeth Downs. Rebecca Considine, the respondent’s sister, and her de facto partner, Troy Murray, resided at those premises. It had been alleged that Troy Murray had assaulted a woman who was in a relationship with one Stephen Watson, who is the brother of the deceased, Stuart Watson. Friends and associates of Stephen Watson (the “Watson associates”) decided to confront Troy Murray about the assault. Earlier in the day of the shooting, the Watson associates went to 3 Filsoll Street looking for Murray in order to confront him. They spoke to Elizabeth Considine. Murray was not there. They made a number of threatening remarks, and then left. Another group of Watson associates returned to the house at about 7.15pm that evening again looking for Murray. Amongst the group was Stuart Watson, the victim. The people again made threats including threatening to kill Murray. The front door of the house was kicked heavily, and a barbell was thrown through the front window before the group left. At some stage during the day the police had been called to the premises. The three respondents had also attended 3 Filsoll Street during the day after being alerted to the situation by Rebecca Considine. The respondents had been present when police attended. A group of about eight Watson associates, including the victim Stuart Watson returned to the premises later that evening. Stuart Watson was described by one witness as being ‘the one who was pumped up and wanted revenge’. The other members of the group went along as backup. They could not find Murray. After some further aggressive behaviour, including throwing a chair onto the roof of the house, they left. At about 9.00 pm, a smaller group including Stuart Watson returned to the premises for a fourth time. On this occasion Considine’s sister, Rebecca, phoned Considine to ask for help. Considine was at Tracey’s house with the other two respondents. It was about five minutes drive away. Rebecca Considine was genuinely in fear for herself and her family’s safety. Considine asked Tracey and Wallace to come with him to Filsoll Street. Before leaving, there was a conversation between Considine and Tracey about taking a semi-automatic rifle with them. They discussed giving the rifle to Murray so that he could scare off any potential assailants. Unbeknown to Wallace, they agreed to take the rifle with them.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Wallace would have been sentenced to a non-parole period of three years. With the reduction for the plea of guilty, and credit of twenty months for time already served in custody, the non-parole period ordered was nine months. I do not consider that the resulting non-parole period is manifestly inadequate. Conclusion Accordingly no error has been demonstrated. When the offending and surrounding events are fully understood, I am not satisfied that the sentence is so far below an appropriate range of sentences so that it demonstrates an error of principle or would shake public confidence in the administration of justice. Although there may be a view that the sentences were merciful, it cannot be said that they were manifestly inadequate. I would refuse leave to appeal. LAYTON J: I have had the advantage of reading the draft reasons for decision of Sulan J. I agree that the appeal should be refused.

Ratio Decidendi

Legal Principle Established

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