R v Vuni - [2005] NSWSC 184

NEW SOUTH WALES SUPREME COURT

CITATION: R v Vuni [2005] NSWSC 184

CURRENT JURISDICTION: Common Law Division
Criminal List

FILE NUMBER(S): 2004/6

HEARING DATE{S): 29-30 November, 1-14 December 2004, 4 February 2005

JUDGMENT DATE: 11/03/2005

PARTIES:
Regina v Paongo Vuni

JUDGMENT OF: Studdert J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
W. Creasey (Crown)
D. Yehia (Prisoner)

SOLICITORS:
Office of the Director of Public Prosecutions (Crown)
Legal Aid Commission (Prisoner)

CATCHWORDS:

ACTS CITED:
Crimes Act, s 421
Crimes (Sentencing Procedure) Act, ss 3A, 21A, 28, 44

DECISION:
Imprisonment for ten years, with a non parole period of seven years six months. Sentence to date from 10 March 2003, with the earliest date upon which the prisoner will become eligible for release on parole being 9 September 2010.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST
STUDDERT J
Friday 11 March 2005
2004/6 REGINA v PAONGO VUNI
SENTENCE

HIS HONOUR: The prisoner, Paongo Vuni, stood trial on an indictment containing two counts:
(i)the first count charged him with aggravated break enter and steal on 29 January 2003;
(ii) the second count charged him with murder on 10 March 2003.
After a lengthy retirement, the jury found the prisoner not guilty on the first count and not guilty of murder but guilty of manslaughter on the second count.
On what basis did the jury arrive at the verdict on the second count? Manslaughter by unlawful and dangerous act was not an option in this case. The prisoner admitted that he fired the shot with intent to kill. The two possible paths to a verdict of manslaughter were by way of the application of s 421 of the Crimes Act, that is excessive force in self defence or defence of members of his family, or, alternatively, by reason of a finding of provocation. I observe that counsel for the prisoner did not address the issue of provocation with the jury; the issue of self defence and defence of the prisoner’s family was the focus of counsel’s submissions.
It is my task for sentencing purposes to find the relevant facts, and to do so recognising the constraints identified by the Court of Criminal Appeal in R v Isaacs (1997) 41 NSWLR 374. In their joint judgment in that case, Gleeson CJ, Mason P, Hunt CJ at CL and Simpson and Hidden JJ said (at 378):
“2. Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing…
3. The primary constraint upon the power and duty of decision- making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury. This may produce the result that, in a particular case, the view of the facts which the judge is obliged to take is different from the view which the judge would have taken if unconstrained by the verdict: cf Maxwell v The Queen (1995) 184 CLR 501… The fact that a judge may not agree with a jury's verdict, and thus may be required to sentence on a basis different from the judge's personal view of the case, is an inevitable consequence of the division of functions inherent in trial by jury.
4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris [1961] VR 236. However, the practical effect of 4 above, in a given case, may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender…”
With what was said in Isaacs in mind, I address the objective facts in this matter.
There was no issue at the trial as to whether or not the prisoner shot the deceased. It was admitted by him that he had done so when interviewed by the police shortly after the shooting, and he never asserted otherwise. The prisoner shot the deceased, firing a single shot from a .357 Ruger Magnum. The shooting occurred shortly after 2.00 pm on 9 March 2003 at the prisoner’s unit at 158 McLachlan Street, Orange. Prior to the shooting the prisoner had company in his unit. His de facto wife, Susan Parker, was present and so too was her daughter by an earlier union, Kellie-Ann Uren. Kellie-Ann Uren had her infant daughter with her and there was an infant cousin present as well.
The deceased came to the front door wanting to talk to the prisoner and both Ms Parker and Ms Uren gave evidence of a conversation which took place whilst the deceased stood at the front door and whilst the prisoner remained seated on a stool beside the kitchen bench. The versions of the conversation are not precisely the same but the thrust of the conversation was similar. I propose to refer only to Ms Uren’s version.
According to Ms Uren, the prisoner and the deceased were arguing. The deceased said: “Where’s my stuff?” The prisoner replied: “What stuff? I don’t know what you are talking about.” The deceased said: “You know what I am talking about. Where’s my stuff?” The prisoner responded: “No, I don’t know what stuff you are talking about. How many times do I have to tell you not to come around here when my family’s here?” As the conversation became heated, both Ms Parker and Ms Uren retired outside, leaving through the back door to the unit and taking the children with them. In their absence the fatal shot was fired.
The only person able to give an account as to what occurred in the unit after the women and children left it was the prisoner. He gave no evidence at the trial but he did participate in a walkthrough, of which there is a videotape record, and he did participate in a lengthy recorded interview. The evidence was obtained on the day of the shooting and warrants close scrutiny.
There was, however, a person who made observations of the deceased as he stood at the front door of the unit. James Todd drove into the carpark attached to the units where the prisoner lived and parked his vehicle nose-in. Mr Todd remained in the vehicle then whilst talking to an elderly passenger who was seated in the front seat of the motor vehicle and who was seeking some guidance about an intended investment. According to Mr Todd, he was curious about the deceased in the sense of being curious to see what he was doing, and hence he was watching the deceased. He said the deceased was standing at the doorway facing into the unit. He had one hand against the door, that being the left hand, and that hand was placed on the door half-way up. The other hand was resting on the top of a child’s stroller, which was positioned along the front wall of the unit and outside it. The handles of the stroller would have been in the middle of the doorway, according to Mr Todd, because the deceased was holding one of the handles.
According to Mr Todd, he had a clear view of the deceased through the back passenger side window and he was watching him most of the time, although for some of the time he was facing directly towards his passenger in the course of conversation. Whilst facing his passenger, Mr Todd acknowledged that he had only peripheral vision of the deceased. Mr Todd’s evidence was that he had the deceased in view for about ten minutes and was looking at him for the last two minutes before the shot was fired. I refer to his evidence (T 400-401):
“Q. Are you able to tell us how long you had him in view for leading up to the point where you say the shot is fired?
A. About ten minutes.
Q. There were times I think you just agreed that you were momentarily you looked in the direction of the lady in the car with you?
A. Yes correct yes.
Q. How long before the shot was fired did one of those momentary moments occur?
A. Maybe after two or three minutes.
Q. So during that period of time who were you looking at?
A. To the person I was speaking to.
Q. I’m sorry I hope I didn’t mislead you there. You were looking at the lady in the vehicle with you right. You heard a sound of a shot. Where were you looking at the time of the shot?
A. At the man.
Q. How long had you been looking at the man, alright before you heard that shot?
A. Perhaps a couple of minutes.
Q. Did you see any movements made by that man during that couple of minutes period?
A. No he was in the same position.
Q. Did his hands shift from the stroller or the doorway during that period of time?
A. No not that I observed.
Q. What became of the man when you heard the gunshot?
A. He fell full length backwards onto the concrete surface.”
Mr Todd said that throughout his observations of the deceased, the deceased looked “casual” and the position of his hands did not change.
The observations of Mr Todd assume significance because of what the prisoner asserted in the recorded interview. The prisoner, who gave no evidence at the trial, asserted that the deceased, whilst standing at the doorway before the shooting, stood with one hand in his pocket and the other on the door (Q 106, 121 and 517). However, I record questions 517-519 and the answers given:
“Q517 - - - in his jeans pocket?
AI think yeah because he fall probably he had the hand at the time but when I shot he’s still, his hand is still in his pocket, yeah.
Q518Pocket, O.K. Did he make any motion to take his hand out of his pocket?
AYeah. This, this time I’m, I’m shot straight and pull out his hand.
Q519O.K. So you shot, just to clarify that, you shot him as he was moving his hand out of his pocket.
A. Yeah.”
Ms Yehia submitted that I should find for sentencing purposes that the deceased was withdrawing his hand from his pocket just before the shot was fired and that Mr Todd’s evidence does not establish the contrary. In cross examination Mr Todd conceded (T 407) that he could not see what the deceased was doing with his hands whilst he was watching the occupant of the passenger’s seat in the car. However, Mr Todd said he was watching the deceased at the time the shot was fired (T 401) and that the deceased had not changed the position of his hands.
I was impressed by the evidence given by Mr Todd and I accept it. I accept he was watching the deceased at the very time that the shot was fired and I accept that at that time the deceased had one hand on the door and the other on the stroller. I am so satisfied beyond reasonable doubt. The contrary assertion of the prisoner was made in response to a leading question addressed to the prisoner, and I do not accept the prisoner’s assertion.
I must say that this is not the only assertion in the recorded interview that I cannot accept. As I pointed out to counsel during the hearing on sentence at Orange, I do not accept the prisoner’s assertion that he had never fired a gun before (Q 390-392). The prisoner said he shot with intent to kill and that he aimed at the deceased’s head. His aim was accurate because the deceased died of the gunshot wound to the head. It is obvious that the weapon used would have had a significant recoil, and accuracy in its use would require practise. It seems to me that it would be altogether unreasonable to conclude that this was simply a lucky shot, and I do not form that conclusion. The prisoner is not, of course, to be dealt with more harshly because he did not tell the truth about his experience with guns, nor is he to be punished because I conclude he must have had some prior experience of them. However, what is relevant is that I cannot accept his assertion in response to questions 390-392, and I consider caution must be exercised in assessing all that the prisoner said during the recorded interview. I add that the prisoner gave no evidence in the proceedings on sentence. His affidavit read at the sentencing proceedings did not address the circumstances of the crime.
The Crown submitted that I should find that the prisoner was provoked into killing the deceased, rather than that this was a killing in defence of the prisoner and/or of members of his family. The contrary submission was made on behalf of the prisoner.
In support of the submission that I should find provocation, the Crown drew attention to these matters:
(i)that the prisoner had intended to kill as distinct from inflicting grievous bodily harm;
(ii)the deceased did not produce a weapon nor did he act in such a way as to present an overt threat to the prisoner;
(iii)the prisoner chose to kill instead of seeking to avoid the deceased by leaving the unit in the same way as his de facto wife and her daughter had done. Alternatively, the prisoner had ample time and opportunity just to point the pistol at the deceased and to tell him to leave;
(iv)the prisoner was angry with the deceased, as demonstrated by the demeanour exhibited in the walkthrough video and by what he said to Sgt Hutchings following his arrest:
“He always get me to do things for him, I had enough. I sick of my family being scared.” (T 411)
Ms Uren heard the prisoner say to the deceased during the confrontation: “How many times do I have to tell you not to come here when my family is here” (T 367), and “I’m sick of you coming around here with my family always being scared” (T 373).
Ms Parker heard the prisoner say to the deceased: “I thought I told you not to come around with my family around” (T 384);
(v)then there was the evidence of Mr Todd, and the Crown submits that an acceptance of that evidence eliminates any reasonable perception that the deceased’s visit presented an immediate threat of harm to the prisoner.
After reflecting on the Crown’s submissions, I find I am unable to accept them. It seems to me, assessing all the available evidence, that the conclusion is inescapable that at the time that the prisoner fired the shot he was exercising self control. Before the shooting he drew the gun from his jeans and checked it. In this regard, I accept the evidence of Ms Parker’s daughter (T 364), even though this involves a rejection of what the prisoner asserted to police to the effect that he had taken the gun from a position on the bed. The prisoner told the police (Q 653-662), and I accept for sentencing purposes, that the shooting was deliberate, that he shot to kill, that he aimed at the deceased’s head and that he shot him there. He said he perceived that this would be the last chance he had (Q 661). Moreover, the oral account given by the prisoner to the police and the reconstruction of the incident in the walkthrough do not suggest loss of self control. I am unable to find, and I do not find, that the prisoner shot the deceased at a time when he was in a state of loss of self control.
This leaves only one basis for the verdict of the jury, and that is that the prisoner acted in excessive self defence and/or defence of members of his family.
In considering what evidence supports the verdict of manslaughter on the basis advanced on behalf of the prisoner, I am obliged to have regard to the evidence that is available to support the verdict on this basis.
I must accept for sentencing purposes that the deceased did approach the prisoner for assistance in recovering the weapons that had been taken from the deceased’s home on 29 January 2003. Why this approach was made is unclear, but I find for present purposes, constrained as I am by the jury’s verdict, that there was such an approach. Detective Constable Pack urged the deceased in early February to pass on information to the police (T 423). He spoke to the deceased again on 27 February and at this time the deceased informed him that he was using Kaufman and the prisoner to obtain information on the persons responsible for the break and enter offence.
The prisoner says he was offered money by the deceased to recover the weapons and to inflict harm on those responsible for taking them, and for present purposes I find this is what occurred.
There is, as Ms Yehia submitted, some support for the prisoner’s assertions against the deceased.
Jason Allen gave evidence that the prisoner gave him the deceased’s phone number and suggested Allen ring the deceased to try to sort matters out (T 103-104) and asserted the deceased wanted him to rough Allen up.
Then there was the evidence of Kaufman that he witnessed the deceased speaking to the prisoner at Mirrool Way some weeks before the shooting and he observed the deceased was armed with a gun (T 132-133, 184). Kaufman said he heard the deceased say: “I am losing patience” (T 133). Kaufman’s evidence about the incident at Mirrool Way affords support for what the prisoner told the police (see Q 89-91, 345-359, and 465-468).
The prisoner told the police (Q 345-348) that at Mirrool Way the deceased took a bullet from his jeans, being the jeans subsequently worn by the deceased on the day he was shot. When police examined the deceased’s clothing after the shooting, they found no gun but they did find two unfired Winchester .38 rounds of ammunition and one unfired Winchester 357 Magnum round. For completion, I observe that they also found a knife which the deceased was wearing strapped to his leg.
In the recorded interview the prisoner told the police (Q 86-89) that the deceased sent people “to smash these other people”, an assertion that fits in with the evidence of the incident at the flat of Therese Allen on 19 February 2003. Craig Roberts gave evidence about the assault upon him (T 328-332) and so did Ms Parker, who also gave evidence of the prisoner’s intervention to protect Roberts. Further, Ms Parker gave evidence of the appearance of the deceased’s car in the carpark of the units at the time of this incident and she said the deceased was occupying the passenger’s seat (T 392).
Ms Parker said she was so scared by what had happened in this particular incident that she left the prisoner and stayed away for one week (T 392).
Ms Parker also said that following her return the deceased came looking for the prisoner several times (T 393).
Mr Jones, who lived in the unit next to that of the prisoner, said he overheard the prisoner speaking on Mr Jones’ phone, after Mr Jones had given permission for its use, and he had heard the prisoner say he “did not want to kill him” and he “did not want to go to gaol” (T 457). The potential victim the subject of that conversation was not identified, but telephone records indicated that calls were made from Mr Jones’ phone to that of the deceased corresponding in time with the date the prisoner used Mr Jones’ phone.
The prisoner told police during the recorded interview that he was afraid of the deceased, and I refer in particular to the following:
Q 104 “He wanted to kill me in my bed.”
Q 126-127“[The prisoner] grabbed the gun and put the bullet in it”, because he thought the deceased was there to hurt him (referring to the day of the shooting).
Q 174-176“I know he got a gun and I got a gun from him. I got no chance…I had to shoot him…to protect self and my family.”
Q 506“[The prisoner] thought the deceased had a gun in his pocket when he was at the door.”
Q 529Twice before the deceased had had a gun. “This third one, I don’t know what’s happening.”
Q 651-656The shooting was a deliberate act to protect himself and his family (asserted the prisoner).
Ms Yehia submitted that I should find that the deceased gave the prisoner the weapon used some four weeks before the shooting. Certainly the prisoner made this assertion to the police, but this was a registered firearm and it would have been an extremely unwise, and hence unlikely, step for the deceased to have taken to have made available a traceable firearm, intending its use for an illegal purpose. The verdict of the jury excludes the possibility that the prisoner obtained the firearm as a direct result of his participation in the break-in, but this leaves two possibilities:
(a)that the deceased gave it to him in the circumstances claimed by the prisoner; or
(b)that the prisoner obtained possession of the Ruger from the four men involved in taking it from the deceased’s home.

It is possible that the deceased gave the weapon to the prisoner but I make no positive finding to that effect. I find myself unable to choose between the two possibilities recorded above.
However, constrained as I am by the verdict of the jury, I accept Ms Yehia’s submission that I should proceed to sentence upon this basis:
(i)that the deceased had approached the prisoner offering him money to recover the stolen weapons and to assault the men responsible;
(ii)in the weeks following the initial approach, the deceased repeatedly came to the prisoner’s home;
(iii)the deceased had threatened to kill the prisoner if he did not do what he had been asked to do;
(iv)there was an incident at Mirrool Way when the deceased threatened the prisoner by producing a gun and loading it in front of the prisoner;
(v)as at the time of the shooting the prisoner personally believed in the circumstances as he perceived them to be that it was necessary for him to do what he did to defend himself and/or his de facto wife and her daughter but that what the prisoner did was not a reasonable response in the circumstances as he perceived them.
The prisoner’s response was plainly unreasonable. Indeed, I consider his response to have been extremely unreasonable. He chose deliberately to shoot the deceased intending to kill him and he gave no prior warning. Whilst I have to accept, because of the verdict of the jury, that the prisoner believed as he perceived the circumstances that it was necessary for him to do what he did, and further that he may have believed the deceased to have been armed, the position is that he shot the deceased when the deceased was holding no weapon, and when the deceased was standing at the front door with one hand resting on the door and the other resting on the child’s stroller. He deliberately took a human life and I must, and I do, regard the objective features of this crime as serious indeed.
I turn to the subjective features of this case.
The prisoner is presently fifty years of age. He was born in Tonga. He met his father but once and in his early years was brought up by his grandparents. He had some schooling in Tonga prior to coming to Australia at the age of fourteen. In Australia he had some further schooling. This was hindered by his inability to speak English. The prisoner started working for his uncle doing cleaning work and then he did itinerant farming work and labouring work, spending most of his time working in the country. He formed a de facto relationship with Ms Parker some nine years ago.
A report from a psychologist, Ms Seidler, was tendered in evidence. This report followed an assessment carried out in January this year. In that report reference is made to the prisoner’s cannabis habit. He told Ms Seidler he takes it daily. Ms Seidler’s conclusions are expressed in paras 31-33 of the report:
“31. Psychological assessment of Mr Vuni identifies several factors that are related to his offending behaviour, that are amenable to intervention. Firstly, his daily use of cannabis. Mr Vuni reports this as a long-standing habit and he denies that it is problematic. However, he uses the drug first thing in the morning prior to going to work and as a routine in the evening to wind down from work. This regular pattern of use is considered to be problematic. As such, it is recommended that Mr Vuni would benefit from Drug and Alcohol Counselling designed to intervene with his use of marijuana. Whilst such intervention is available within the correctional system, it is considered to be most beneficial as Mr Vuni transitions to the community when he is most at risk. He resides in the rural area outside of Orange and therefore the best contact for available services within his area is through the local Orange Probation and Parole Service. It is noted that Mr Vuni does not acknowledge his use of cannabis as problematic and therefore would unlikely be open to receiving such intervention.
32. Mr Vuni’s offending may have a psychological component which is the result of his ideas about relationships as a development from his early family experiences. In this case, psychological intervention addressing this issue would be prudent. It is suggested that psychological counselling addressing any remains of his early experiences (including the abuse he suffered as a child) and in particular his relationship experiences and beliefs would be important in allowing him to develop the skills to better manage interpersonally difficult situations where he perceives others are being threatened or harassed. Psychological counselling again, is available within the correctional system and also in the community. Local-based services would be in the best position to find appropriate resources within his area of residence.
33. Mr Vuni appears to have maintained a generally stable lifestyle prior to his arrest and has expressed interest in returning to his partner and employment on his release. He has already served several sentences within gaol and seems to be fairly comfortable within the ‘system’. As such, it is important to consider the impact of a lengthy custodial sentence on this man. Institutionalisation is a risk in this respect and it is suggested that participation in a structured programme of release would maximise the success of his transition to the community.”
The prisoner has a not insignificant criminal record. It includes convictions for offences involving violence. The Crown tendered (as Exhibit C) a statement of facts concerning offences of assault occasioning actual bodily harm and associated offences committed on 26 September 1998. The Crown also tendered a recorded interview concerning an assault the prisoner committed upon his de facto wife on 19 December 2000. Those two exhibits evidence violence committed by the prisoner.
I remind myself of the purposes of sentencing expressed in s 3A of the Crimes (Sentencing Procedure) Act 1999. Plainly, no sentence other than one involving a full time custodial sentence would be appropriate.
I must, and I do, have regard to s 21A of the Act, and I note in particular:
(i)the prisoner has previous convictions to which I have made reference, and all of which are recorded in Exhibit A. I add, however, that the prisoner’s record is not to be treated as having the effect that it makes the offence for which I am now required to sentence the prisoner the more serious: see R v Wickham [2004] NSWCCA 193;
(ii) this offence involved the use of a weapon;
(iii) the offence was not pre-planned;
(iv)I accept that the prisoner has expressed remorse. He admitted from the outset that he was responsible for the shooting, although it would have been hard for him to have done otherwise. However, he went on to express his remorse in the recorded interview with police (Q 651).
Having regard to his past record, I cannot be confident that the prisoner is unlikely to re-offend, and I cannot assess the prospects of rehabilitation as being favourable.
I do not find special circumstances, and, indeed, I have not been asked to do so.
In this case the Court received a victim impact statement. This was read by Ms Eslick, the sister of the deceased, and it is an extensive document which clearly records the impact of the death of the deceased upon the deceased’s wife, his parents, his son, his daughter, his sister and his brothers. It also records matters as to the usefulness of the life led by the deceased. It is appropriate in a case such as this that s 28 of the Crimes (Sentencing Procedure) Act should afford to those concerned the opportunity to express and have recorded that which Ms Eslick read on the last hearing date in Orange. However, it is well settled that I cannot consider the content of that statement for the purposes of determining what sentence should be imposed: see R v Previtera (1997) 94 A Crim R 76, R v Bolan (1998) 99 A Crim R 510; and R v Dang [1999] NSWCCA 42.
It is extremely difficult to determine an appropriate sentence for the crime of manslaughter by reference to sentences imposed in other cases. Ms Yehia has supplied sentencing statistics provided by the Judicial Commission. I have considered those bald statistics, but I do not find them helpful because the relevant circumstances differ so greatly in manslaughter cases from case to case.
Ms Yehia also furnished a table of identified cases indicating the sentences passed in some fifty-three cases. In only five of those there was a defence of “excessive self defence”. The remaining cases were cases in which the defence was provocation. Of the five cases in the “excessive self defence” category, the head sentences ranged from five years to seven years six months. The sentences in the provocation category ranged from a recognizance to a head sentence of twenty-one years, although I observe that the head sentence of twenty-one years stands out as being much higher than sentences in any of the remaining fifty-one cases. Generally, it seems the head sentence in the cases detailed in this category rarely exceeded ten years and was frequently significantly lower.
Ms Yehia submitted that provocation manslaughter was to be viewed more seriously than excessive self defence manslaughter. I do not consider this is necessarily so. Each case depends upon its own particular circumstances. The court said as much in Isaacs (at p 381) and added:
“The range of sentencing available in the case of manslaughter is notoriously wide.”
I do not consider it would be helpful to record my review of the tabled cases; so much depends upon my consideration of the objective and subjective features of this particular case. I do however propose to refer to the matter of R v Cioban [2003] NSWCCA 304. In that case, the sentence imposed at first instance for manslaughter involving excessive self defence was one of eight years with a non parole period of five years. On appeal, that sentence was determined to have been excessive, and a head sentence of six years six months with a non parole period of four years was imposed instead.
I consider that the objective features of the present case are significantly more serious than those in Cioban. In Cioban death was caused by shooting, but the shooting was in a struggle that occurred after the appellant was pursued by the deceased, and during that pursuit the appellant had fired a warning shot which the deceased did not heed. The deceased caught up with the appellant and they fell and struggled. In the course of that struggle the shot was fired. The deceased posed a serious threat of physical harm to the appellant, being of bigger build, and he was well affected by alcohol, with a blood alcohol level of .237. Moreover, the appellant had not been in custody before and his subjective features were assessed as “powerful”.
The above statement of the objective and subjective features in Cioban readily identifies features which distinguish it from the present case. I remind myself however that my task is to arrive at a sentence which appropriately reflects the objective gravity of the particular offence, including the unreasonableness of the prisoner’s response, and which has due regard to the subjective features of this particular offender. The sentence must have regard to the purposes of sentencing now expressed in s 3A of the Crimes (Sentencing Procedure) Act.
Since this crime was committed on 10 March 2003, s 44 of the Crimes (Sentencing Procedure) Act, as enacted in 2002 operates. Hence I must first set a non parole period for the sentence, and then the balance of the term, which, in the absence of special circumstances, is not to exceed one-third of the non parole period: s 44(2) of the Act.
Restrained as I am by the verdict of the jury, I have concluded that the appropriate non parole period in this case is seven years six months and that the appropriate balance of the term is two years six months. The offender has been in custody since the time of his arrest on 10 March 2003 and the sentence is to be backdated to that date.
Accordingly I now pass sentence as follows: I sentence the prisoner to imprisonment for ten years, having first set a non parole period of seven years six months and then the balance of the term of the sentence of two years six months. The sentence is to date from 10 March 2003 and the earliest date upon which the prisoner will become eligible to be released on parole is 9 September 2010.

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LAST UPDATED: 11/03/2005