Regina v Clissold

[2002] NSWSC 429

CITATION:	REGINA v. CLISSOLD [2002] NSWSC 429
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC No. 70002 of 2001
HEARING DATE(S):	21/09/2001; 24/09/2001; 19/10/2001; 30/11/2001; 10/05/2002; 17/05/2002
JUDGMENT DATE:	17 May 2002
PARTIES :	REGINA v. CLISSOLD, Ian Raymond
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Crown: Mr. B. Smith Offender Mr. A. Webb
SOLICITORS:	Crown: S.E. O'Connor Offender: Sydney Regional Aboriginal Corporation Legal Service
CATCHWORDS:	Criminal law - sentence - manslaughter - plea of guilty in discharge of indictment charging murder - further offence of assault occasioning actual bodily harm - matters to be taken into account although not charged - plea accepted in recognition otherwise conviction may not have been obtained - plea at earliest opportunity - liability as accessory before the fact to unlawful and dangerous act - not present when gravity of co-offenders' assault exceeded expectations - contrition - most serious case.
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Garforth (CCA, unreported 23 May 1994) Pearce (1998) 104 CLR 610 Previtera (1997) 94 A. Crim. R. 76 Sharma [2002] NSWCCA 142 Oinonen [1999] NSWCCA 310 Thomson & Houlten (2000) 49 NSWLR 383
DECISION:	On Count 2, the offender is sentenced to a fixed term of four years imprisonment to date from 25 January 2000. On Count 1, the offender is sentenced to 14 years imprisonment to date from 25 January 2002. In respect of that sentence I impose a non-parole period of eight years to date from 25 January 2002 and to expire on 24 January 2010.

IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

GREG JAMES, J.

FRIDAY 17 MAY 2002

No. 70002 of 2001

REGINA v. IAN RAYMOND CLISSOLD

SENTENCE

1 HIS HONOUR: The offender, Ian Raymond Clissold, on 27 September 2001, was re-arraigned on an indictment containing two counts, he having formerly pleaded not guilty in respect of the two offences charged. On that day, he pleaded guilty to the alternative count to that originally charged as count one, that is he pleaded guilty to manslaughter as an alternative to the charge that on 4 August 1999 at Erskine Park in the state of New South Wales, he did murder Peter John Ledger. He pleaded guilty to the second count, that is, that on that day he did assault Gregory Mark Symonds and thereby occasioned to him actual bodily harm. Those pleas were accepted by the Crown in full discharge of that indictment.

2 The plea to manslaughter was entered on the basis that the offender was an accessory before the fact to an unlawful and dangerous act occasioning the death of the deceased. The plea in respect of the assault upon Mark Symonds was entered upon the basis that the offender was party with others to an attack upon that man as householder in order to abduct the deceased, who was, as will appear from the recital of facts to which I will turn shortly, on the orders of the Supreme Commander of the Commancheros, Jock Ross, to be given by members of that body, supervised by the offender, the Sergeant at Arms of that body, “a flogging”.

3 The maximum penalty prescribed by law for the crime of manslaughter is 25 years imprisonment. The maximum penalty prescribed by law for the assault occasioning actual bodily harm is five years imprisonment. It was conceded by counsel appearing for the offender, and entirely properly so, that the surrounding circumstances sufficiently established by the facts statement admitted by consent and part of Exhibit A on the plea, where such that the court should have regard to the offender’s culpability when sentencing for these two offences as embracing those other matters referred to in that statement which otherwise would have given rise to separate charges. They include the assault committed on the deceased at the premises of Symonds from which the deceased was abducted and which included the use of a knife on him to remove him from the home as well as that abduction. The admitted facts include the admitted detention for a period of time of Mr. Symonds in the home for the purpose of the ill treatment afforded to the deceased. It will be necessary to have regard to those matters but to recognise also that they are not separately charged. They set however, a chilling context to what in fact occurred. The legal necessity to have regard to matters such as those in the context of sentencing for homicide was recognised by the Court of Criminal Appeal in Regina v. Garforth (CCA, unreported 23 May 1994). It will be necessary also to have regard when sentencing to the principle established by the High Court in Pearce v. The Queen (1998) 104 CLR 610 that:-

“The culpability for each offence be particularly examined and that the court pass a sentence appropriate to each offence giving then consideration to the exercise of the discretion on whether or not such a sentence should be entirely cumulative upon some other sentence passed, or wholly or partially concurrent.”

4 The pleas came to be entered in somewhat unusual circumstances but it is not necessary that I refer in detail to the chronology surrounding their entry as it is set out in a submission helpfully filed on behalf of the offender. It is sufficient that I note the following.

5 On 25 September 2001 prior to the commencement of the trial that had been envisaged, I delivered judgment in respect of two matters which had been raised as appropriate for pre-trial rulings. The first concerned the admissibility of certain material that it was proposed to tender in the Crown case. That material, in particular, related to the prospect of being able to establish the location of the occasioning of the deceased’s death. It was submitted by the Crown that it could be established that the deceased was beaten to death at the Commanchero club house and the body was thereafter taken to his former wife's home and abandoned in the driveway. There was little evidence to support the submission. What evidence there was was plainly of such little probative value as merely to found a speculation. I rejected it.

6 In the other judgment however a question arose as to the admissibility of the identification of the offender as being one of the assailants who had arrived at the home of Symonds. Identification evidence may be unreliable and is traditionally regarded by the courts as evidence to be examined with close scrutiny. In that judgment I noted the limited nature of Mr. Symonds' prior acquaintanceship with the offender. I ruled that the evidence of the witness recognising the offender as the assailant might be admitted, however I raised in that ruling limitations on what might occur at trial concerning identification.

7 The pleas were entered following that ruling.

8 However it was accepted by the Crown in argument that the value of the plea was such that in the absence of that plea, had the trial proceeded, the evidence of Mr. Crowley, a witness to whose evidence I will return shortly, might not have been accepted beyond reasonable doubt, in which case the offender might have been acquitted entirely in any involvement in the death. It was accepted by the Crown that I should regard both the plea and the acceptance of it as proceeding from an entirely rational appreciation of that possibility. It was accepted by the Crown that absent the plea there was a substantial risk that the Crown would not achieve a conviction for the homicide at all. It was also accepted by the defence that the plea should proceed upon the basis that it admitted complicity in the death of the deceased and that it was accepted the role of the offender in the abduction of the deceased and the assault upon him at the house should be taken into account in assessing his overall culpability. It was conceded by the learned Crown Prosecutor that the plea had been accepted in recognition that after the assailants left Symonds’ house, the Crown was unable to prove beyond reasonable doubt who amongst the assailants did what and with what intention or indeed who was relevantly and critically present. Such concession was made since there was evidence of a statement made by the offender to a psychologist that although he had participated in the initial assault and abduction, prior to the conclusion of the “flogging” that had been intended, he had left the group suffering from abdominal pain and that it was never intended that the deceased should be subject to grievous bodily harm as far as he was aware. The Crown’s concession is an acceptance of an inability to disprove that proposition beyond reasonable doubt notwithstanding the evidence from Mr. Crowley to which I have already referred. In his statement, Mr. Crowley said the offender said to him:-

“I am in a bit of trouble. Jock told us to sort somebody out, he was causing a bit of trouble and teach him a lesson but it went a bit too far. There was three of us there, we gave him a beating but it went too far. It wasn’t intentional and the bloke died after it.”

9 It was accepted by the defence that that material was reliable to the extent that permitted it to be taken into account for the purposes of sentencing to support all such findings other than the presence of the offender at the critical time and any controlling role of the offender at the time at which the assault, the “flogging”, escalated from one in which no serious physical injury was to be occasioned to the deceased to one where really serious physical injury or death was intended to be or might have been or contemplated to be occasioned.

10 I proceed to deal with the matter therefore on that basis.

11 I turn now to the agreed statement of facts.

12 The offender and the deceased were members of the Western Chapter of the Commancheros Motor Cycle Club. The offender held the position of Sergeant at Arms within the club; the deceased was an ordinary member. The deceased had stayed overnight at the home of Symonds on the evening of 3 August 1999. Shortly before 8pm on 4 August, Symonds answered the knock on the front door to find Brady Hamilton, a member of the Commancheros, the offender and another man, who apparently had some association with the Commancheros, standing outside. When Hamilton was informed by Symonds that Ledger was present, the three forcibly entered the house. The offender threatened Symonds with a knife and punched him to the left side of his head, dazing him. Symonds was ordered to move along the hallway and upon the kitchen being reached the offender punched Symonds to the ear, knocking him to the floor.

13 The deceased who had been asleep on a lounge was approached. A sum of money was demanded of him. That sum had apparently been involved in some form of dispute arising within the club in circumstances apparently connected with an offer or attempt to purchase or sell a motor bike. It is not necessary for me to resolve the detail of that matter. Apparently these persons had attended on the premises with a view to obtaining the money, the deceased’s club colours and to enforce some form of club discipline at the instigation of the Supreme Commander, Jock Ross. The offender than began punching the deceased heavily and repeatedly to the face with his fists. The money and the colours were demanded. The deceased begged Symonds to help him. Symonds replied saying he did not know what was going on and did not want to know. The deceased was punched again a number of times. He was crying out when he was punched. The unidentified man had a meat cleaver in his hand. The offender had the knife which he pressed against the deceased’s back and ordered him from the house. Symonds was ordered not to go near the phone. Tersely, the Crown statement of facts continues:-

"The deceased, Ledger, was taken by the prisoner and the others to an unknown location where he was savagely beaten. About 9.25 pm that evening his dead body was found in the driveway of the home of his estranged wife, Margaret ledger, at 8 Pictor Street, Erskine Park.”

14 The body was examined for its injuries. There were sustained numerous bruises, lacerations and abrasions to the head, body, arms and legs of the deceased. During an internal examination the forensic pathologist observed and noticed lacerations to the lower lip and left side of the mouth. Fracturing and extensive damage to the left side of the jaw. Extensive bruising under the scalp. Blood in the cavity of the right lung. A fracture to the skull which extended into the base of the skull. Extensive fractures to the face including to the right cheek bone being completely detached from the rest of the face, the anterior wall of the upper jaw bone being fractured with exposure of the right maxillary sinus, fractures through the left cheek bone and upper jaw bone and several fractures through the lower jaw bone. A fracture in the hard pallet and part of the floor of the anterior fossa of the skull. Fractures with associated bruising through the third to twelfth rib on the right side, the fractures of the seventh, eight and ninth rib causing penetration into the pulmo cavity and lacerations of the lung. A fracture with extensive dislocation and soft tissue injury through the shaft of the left femur and widespread soft tissue injury in the left knee joint and soft tissues beneath the fracture. A fracture to the medial knuckle of the left femur, a fracture with minor dislocation of the mid shaft of the left fibula with surrounding soft tissue damage. The pathologist concluded that death was due to the effects of severe injuries consistent with a severe beating and that the major injuries to the leg and chest would have contributed to the death by virtue of blood loss and impairment of breathing.

15 Certain injuries were inflicted to the knees and legs of the deceased. There was submitted to me, on the voir dire, evidence concerning the use of a spike knuckle-duster. It was accepted that for the purposes of this plea, I could have regard to such evidence as had not been ruled inadmissible on the voir dire. The evidence was no higher than that the spiked knuckle-duster which had been located following these events was consistent with the sort of implement that may have inflicted wounds of the nature of those seen to the knees and legs of the deceased. I am unable to say that the offender was aware of the use or intended use of some such implement consistent with the basis upon which the plea was entered and accepted.

16 I must not, having regard to the conclusion of the pathologist that the injuries that may have been inflicted by such an implement contributed to the death and plainly and obviously would have been the occasioning of grievous bodily harm, attribute a culpability to the offender in respect of those matters going beyond the ambit upon which the plea was entered and accepted. However I accept, and it is within the admission made by the offender, that the attack upon the deceased at Symonds’ home was not only committed in company with others but by the use of weapons including the meat cleaver held by the associate and the knife with which the offender threatened the deceased and abducted him from the premises.

17 In August 1999, following the death of the deceased, the offender visited the home of the father of Michelle Crowley in the mid north coast. It was there he made to Mr. Crowley the admission to which I have referred concerning the instructions given to him by Jock Ross. He was arrested on 25 January 2000. When interviewed by the police he maintained his right to silence.

18 He has a prior criminal record. It is a record of some substance. It commences some 20 years ago when he was put upon a bond for stealing. It involves earlier offences of assault and malicious injury, assault occasioning actual bodily harm, assault female, malicious damage, maliciously inflicting grievous bodily harm and traffic matters, however courts have extended leniency to him in respect of those matters, in particular he has had the benefit of sentences being deferred, upon him entering into recognisances, of being sentenced for the offence of maliciously inflicting grievous bodily harm to a sentence of some two years extent involving a minimum term of one year, and being fined for traffic matters, although sentenced also to six months imprisonment for driving whilst disqualified. This will be his first substantial sentence of imprisonment if one disregards the sentence for the earlier outburst of violence.

19 The facts of that matter were put before me, by consent, on the plea. There had been a substantial difference in versions of what had occurred giving rise to that plea before the sentencing judge. It was the offender’s contention that he struck one blow against the windscreen of the vehicle of his victim with a piece of wood he had picked up from the side of the road in response to what he contended was harassment by the victim. The victim had apparently had a relationship with the lady who was then the offender’s preferred companion.

20 The trial judge found that he struck at least one blow and accepted otherwise the account of the victim. The trial judge accepted that the offender was at that time angry and acted on impulse, that the offender had a psychological history of behavioural problems resulting in a tendency for him to get into arguments and have trouble in controlling his violent impulses. This at least, the trial judge accepted, was partly in consequence of the offender having been injured by a person who shot him with a shotgun occasioning injuries to his head causing migraines and pressures and a lack of ability to cope with stressful situations. The trial judge considered there should be some leniency because of that matter but found that the effects upon the victim of the “at least one blow” were catastrophic. The victim suffered a penetrating injury to his right eye, the result of which was that the eye had to be taken out and he lost its use.

21 There does not seem to be, in the facts as found here and admitted by the defence, any basis upon which it could be said that this offence arose on impulse, occasioned by some inability to control reactions arising from a consequence of the injuries sustained in the shooting to which the trial judge referred when passing that sentence to which I have referred. This was a premeditated exercise of club discipline committed by the Sergeant at Arms of the club under the orders of the Supreme Commander.

22 In the material provided to me on behalf of the Crown there was extensive material referring to the events which have been summarised in the statement of facts. In addition, I was provided with the victim impact statement of Margaret Ledger, the wife of the deceased, and a victim impact statement of Gregory Symonds.

23 The Crimes (Sentencing Procedure) Act 1999 makes particular provision, and differently, for how each statement should be regarded. Division 2 of that Act contains s.27. Subsection (2) provides that:-

“In relation to an offence that is being dealt with by this Court the division applies only if the offence is being dealt with on indictment and is an offence that results in the death of or actual physical bodily harm to any person.”

24 Section 28(1) provides:-

“That if it considers it appropriate to do so the Supreme Court or District Court may receive and consider a victim impact statement before it sentences an offender.”

25 Subsection (3) provides that:-

“If the primary victim has died as a direct result of the offence” as here, “the Supreme Court must receive a victim impact statement given by a family member and acknowledge its receipt and may make any comment on it that the Court considers appropriate."

26 The law in this state concerning how such a statement must be taken into account has been enunciated by the Court of Criminal Appeal in Regina v. Previtera (1997) 94 A. Crim. R. at 76. In the case of a homicide the statement is noted by the court, and it has been held to be inappropriate that the content of the statement should be used in order that a more severe sentence than would otherwise be passed, might be passed lest that should suggest that the Court might value human lives differently depending upon what might be said by others concerning the impact of the death upon them. It is however accepted law that one can have regard and must have regard to the effects of a crime upon the victim. I do not understand Previtera (supra) to stand in the way of the application of that principle even in the case of a homicide. It is concerning the effect of the death on others as differentially affecting the penalty that it speaks. It does not require the court to ignore the manner of the death or the effect of it on others entirely. In each case I will treat the victims’ impact statements to which I have referred in accordance with those principles.

27 When the statements were provided during the arguments before me, I referred to the fact that when a death is occasioned it diminishes the whole of the community and gravely affects the deceased’s loved ones and friends and the recognition by the court of those matters. That there should be such a principle is not only a matter of law but one of common humanity. The court carries forward that principle into the court’s function in sentencing but does not give to the life of one person rather than another some special significance.

28 I turn to the evidence provided on behalf of the offender. Michelle Crowley provided a reference in which she referred to his generosity, kindness and good manners to members of her family and the kindness to her children he showed during their relationship. She referred to the effects upon her and the children of his absence.

29 The Reverend Hannah, who was the parish priest in Mount Druitt, referred to the offender's family circumstances and in particular that his father had been injured in a serious accident; and that his mother, now an elder in the Aboriginal community had been a member of the stolen generation. He referred to the offender's relationship with his family and his children. He gave some valuable background to which I will turn again when I come to the report of Messrs Duffy, Barrier, Robilliard, psychologists.

30 The offender left school at the age of 15, suffers from dyslexia and is still, at least to a substantial extent if not entirely illiterate. Nonetheless he has worked continuously in one employment or another and has had regard for his family and sought to support those with a moral claim upon him, not only by reason of obligation but out of affection and caring for them. This, notwithstanding the very substantial problems experienced by members of that family by reason of matters not under the offender’s control, or his fault, but which make his efforts in their regard which are to be garnered from what appears in Father Hannah’s report, the more estimable.

31 Captain Carter, the Anglican chaplain, Department of Corrective Services, refers to the two years of the offender’s custody and his contact which is weekly or more with the offender. He refers to the offender as being a cooperative inmate adding to the good order of prison life. He refers to his conscientious conduct in gaol and the high level of trust in him. He has discussed with the offender the family issues arising from his confinement and underlines the offender’s concern for his partner and the children.

32 There is also a report, notably, given on his behalf by various prison officers, including the senior prison officer, and education officer, an Aboriginal welfare officer and an alcohol and drug officer, which refers to his work within the gaol and his ability to assist with the management of other prisoners with particular problems, as a support person under the supervision of gaol staff. In particular it praises his role assisting at risk inmates avoid what is referred to as “an exacerbating situation”. It refers to his cooperation and communication with gaol staff and his assistance with inmates at all levels and from many different cultural backgrounds as being invaluable in the resolving of sensitive issues. It says that his behaviour in gaol has been exemplary.

33 Kevin Walters has also given a reference, he having employed the offender as security officer at a nightclub and restaurant and later in working in the tow truck industry, doing mechanical repairs, cleaning and maintenance. He praises the offender’s conscientiousness and trustworthiness in a personal and professional capacity. He refers to the offender’s role in attempting to resolve disputes within the Commanchero motor cycle club, although he refers to the offender as seeking to resolve tension within the club, or outside of it by a peaceful amicable solution. He contends that on his assessment of the offender he was used by others to mete out discipline but also that the offender is such a person as would never have wished for anybody to be fatally injured. He says the offender feels deep remorse and is a man with a strong sense of morality and loyalty.

34 Greg Babbage furnished a reference and also gave evidence. That evidence related to the offender’s prior circumstances and his family and the kindness the offender had shown to Mr. Babbage’s children. He too, as had the other referees to whom I have referred, praised aspects of the offender’s character and had offered to support him when he is discharged from custody.

35 In the report from Duffy, Barrier, Robilliard there was an extensive review of the offender’s circumstances. That review was conducted in the context of the psychologist being afforded material by way of background as set out in the report. In summary, the report confirms in some detail the observations others have made of him and of his circumstances. It is not necessary that I go into detail concerning those matters. The report refers to the background to the offence and that:-

“As ‘Master Sergeant’ the offender recognised his responsibility to maintain law and order within the club to ‘go and sort out problems.’”

36 The report refers to this as being a statement concerning the responsibility to arbitrate. He said “Some people thought I was too soft”, but accepted that his reputation as a boxer earned him respect. He added, “I treated everyone the way I wanted to be treated”. When he moved to the south coast with his family, it was apparently partly to remove himself from more active club life but when the matter concerning the deceased arose, he was called on to intervene and felt a duty to respond.

37 To the psychologist he said that he is now very sorry he left the deceased with the other two assailants when he did. He referred to being with the group that had abducted the deceased and taken him from Symonds' home but said that he left the group as he was suffering abdominal pain, admitting that he knew that the deceased was going to get “a flogging”. He said he left because he was sick. He feels that if he had stayed he would have been able to keep some control of the situation. He said that he does not believe that it is appropriate to “take the law into the hands of the club”, that he was sorry for the victim’s young son who will now grow up without a father.

38 The psychologists concluded after administering numerous tests that he tested out in the well below average range of intelligence, in the bottom three per cent of the population, that his intelligence deficits however were masked by his personable manner and good communication skills. He has a rudimentary level of reading and, although well socialised and functioning effectively, has an intellectual level barely above mildly mentally retarded. He is slow to generate solutions to problems and paranoid in his thinking, hypersensitive to criticism or rejection. He feels safer and more comfortable in the company of those he perceives as stronger than himself and is likely to adopt their image. He values the camaraderie and feeling of belonging of motor cycle club membership. It is concluded that he appears to differentiate appropriately between what he sees as the rights and limitations of maintaining club law and taking the laws of the community into club hands.

39 On the argument concerning the submissions made on plea, a question arose as to whether his adherence to the disciplinary function entrusted to him by the Supreme Commander was a matter which should mitigate the penalty for this offence. That matter has to be considered in the context that notwithstanding what has now occurred, there is no evidence before me to suggest that the offender has terminated his life membership of the Commancheros, albeit there is some evidence, particularly in the report of the psychologist to suggest that he has sought to distance himself from the active day to day role a member of that body might have, but nonetheless as far as one can tell he retains a loyalty to the objects of the club and its Supreme Commander.

40 That leads me then to a consideration of the relevant sentence. It was accepted in argument eventually by the Crown that I could not be satisfied beyond reasonable doubt that the offender was present and participated in the final assault, though I can be satisfied beyond reasonable doubt he bears legal responsibility for the death appropriate to his complicity in the unlawful and dangerous acts which occasioned that death. Although to some extent it was submitted to the contrary, it does not appear to me that if having supervised and directed others to undertake a beating, for some fortuitous cause the offender is not present and those others go too far and beat the person to death, there is much that can be said to mitigate the culpability of having put in train those events, particularly where, as here, the offender had a primary role, using a weapon in the abduction, beating and eventually abandoning the deceased to the attentions of his co-offenders, who inflicted such appalling injuries occasioning the deceased’s death. The relevant culpability for manslaughter, whilst it may not be that of the worst class of case, is very, very high. As far as his personal circumstances go, the prior criminal history of the offender is to be set against what has been said on his behalf by way of his gentleness and good character. In argument it was discussed that there should be full concurrence between the sentences for the two offences but upon reviewing what the High Court has said in Pearce (supra), although the offences are closely related and the culpability of each to an extent embraces that of the other, I am unable to conclude that there should not be within the total sentence a specific reflection of the culpability of the acts perpetrated upon Mr. Symonds. I have concluded therefore that there will be a substantial degree of concurrence in the sentences passed but that they will not be wholly concurrent. It was accepted in the submissions of both counsel that an appropriate sentence in respect of the assault upon Mr Symonds, having regard to all considerations and including having regard to what is said in the victim’s impact statement, was that the offender be sentenced to a fixed term of four years.

41 It is not that sentence which will loom largest of course when one comes to consider the total criminality. I am reminded by the written submissions of the Crown that the starting point of sentence for the major offence is the recognition that the crime deals with the occasioning of the death of another human being and in this case with an attack of viciousness and savagery which preceded a much more vicious and appalling torture and killing of the victim. Whilst I have resolved that I cannot be satisfied that the offender was present, nonetheless I can be satisfied beyond reasonable doubt that the offender’s influence still remained throughout the beating. I accept the Crown’s submission that the offender was the original instigator of the assaults and the instigator of the viciousness and brutality used at the Symonds’ home.

42 As an assault amounting to an unlawful and dangerous act, the assault contemplated by the offender to be committed upon the deceased falls into that category of being one of the worst one could contemplate short of the deliberate infliction of grievous bodily harm and it resulted in this brutal killing. There was a degree of planning. It is an offence which should be marked by a considerable measure of personal deterrent and denunciation, particularly having regard to it being committed in the context of an exercise of club discipline, so that others will be deterred from being engaged in such events, even if it is not an offence which I should conclude was marked by an intention or realisation on his part that some such consequences as did eventually occur, resulting in the deceased’s death should come to pass.

43 I accept that there is some degree of contrition. I accept that the plea was of considerable utility in the context that the Crown might not otherwise have succeeded in obtaining a conviction at all. Thus I am of the view that the utility of the plea, having regard to the principle in the Regina v. Sharma [2002] NSWCCA 142 is high. I regard the plea in the circumstances as having been entered at the first reasonably practicable opportunity, that being the time at which the Crown was first minded to consider offering that such a plea might be accepted and in that regard I will treat the plea in accordance with the principle laid down by the Court of Criminal Appeal in the decision in Regina v. Oinonen [1999] NSWCCA 310.

44 Further, in addition to that limited contrition to which I have referred, I will take into account the subjective element in such a plea that the offender, by the plea, intended to facilitate the processes of justice, having regard to the prospect that the Crown might have failed at trial. Nonetheless having regard to all of those matters and to the extent to which such a plea might discount a sentence otherwise applicable (see Regina v. Thomson & Houlten (2000) 49 NSWLR 383), I consider that the submitted discount put by the offender’s counsel of 30% is far too high. This is an appropriate matter, having regard to all the offences and the taking into account as I have been asked to do, of all those other offences when sentencing for the two offences charged, for the offender to receive a discount in the order of 20%.

45 Accepting that the sentences imposed must reflect the objective seriousness of the offences and my conclusion that the homicide offence, whilst not the worst class of offence, nonetheless is very, very serious, I have concluded that the appropriate sentence to pass, having regard to all the matters to which I have referred is a sentence of 14 years imprisonment. The sentence on count 2, the assault occasioning actual bodily harm offence, as I have said, should be a sentence for a fixed term. The Crimes (Sentencing Procedure) Act 1999, s.45 permits me to decline to impose a non-parole period for that sentence in the circumstances set out in s.45(1). In this case my reason for declining to impose a non-parole period is because of the penalty to be imposed in respect of the homicide offence and because on that offence I will impose a non-parole period. In that regard, in respect of the extent of that percent and noting s.44 of the Crimes (Sentencing Procedure) Act 1999, I find special circumstances which permits the imposition for the manslaughter of a non-parole period of a lesser extent than that which would otherwise be required because of the length of the sentence to be imposed, that it is partly cumulative. I have determined to impose a non-parole period of eight years. I have already referred to the exercise of my discretion as to the extent to which the sentences are to be made consecutive or concurrent. The sentence on count two will date from 25 January 2000 and be by way of a four year fixed term. The sentence on count one of 14 years will date from 25 January 2002 and the non-parole period of eight years will date from that date and expire on 24 January 2010. I would invite counsel at this point to check the figures.

WEBB: I cannot see any error there your Honour.

46 HIS HONOUR: The sentence reflects the submission put to me by counsel for the offender that the appropriate range of penalty in the upshot would be in the lower double figures end of the range available. I make that note specifically since it was submitted by the Crown that the matter should be treated as in the worst class of case so that the sentence should be at the upper end of the range in manslaughter. When one has regard to an appropriate synthesis of all considerations, and particularly those to which I have referred as discounting the sentence that would otherwise be received by dint of the plea, it appears to me that no lesser and no greater sentence than I have indicated should be imposed.

47 Would you please rise Mr. Clissold. For the reasons that I have given on count two you are sentenced to a fixed term of four years imprisonment to date from 25 January 2000. On count one you are sentenced to 14 years imprisonment to date from 25 January 2002 and in respect of that sentence I impose a non-parole period of eight years to date from 25 January 2002 and to expire on 24 January 2010. The prisoner may be removed.

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Last Modified: 05/23/2002