Scott v R

[2011] NSWCCA 221

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Daniel Clayton Scott v R [2011] NSWCCA 221
Hearing dates:	14 September 2011
Decision date:	07 October 2011
Before:	Bathurst CJ at 1 James J at 2 Johnson J at 86
Decision:	Leave to appeal against sentence is granted but appeal is dismissed
Catchwords:	Criminal Law - sentencing for offence in accordance with sentencing practice at time of offence, when delay between offence and sentencing
Legislation Cited:	Crimes Act - ss 18, 24, 97(2), 346 Criminal Appeal Act - s 6(3)
Cases Cited:	R v MJR (2002) 54 NSWLR 368 R v Frazer and Spencer [2007] NSWSC 1449 R v Shore (1992) 66 A Crim R 37 R v Moon (2000) 117 A Crim R 497 R v PLV (2001) 51 NSWLR 736 R v Puta and Ors [2001] NSWSC 225 R v Nikau [1999] NSWCCA 322 R v Marsh [2001] NSWSC 1109 R v Clissold [2002] NSWCCA 356 Cahyadi v R (2007) 168 A Crim R 41 Pearce v The Queen (1998 194 CLR 610
Texts Cited:	Sentencing Homicides in New South Wales 1994-2001
Category:	Principal judgment
Parties:	Daniel Clayton Scott, Regina
Representation:	S Dowling (Crown) P Lange (Applicant) S Kavanagh (Crown) Matouk Joyner Lawyers (Applicant)
File Number(s):	2008/92916
Decision under appeal	Citation: R v Daniel Clayton Scott [2010] NSWSC 1026 Date of Decision: 2010-09-10 00:00:00 Before: Hidden J File Number(s): SC 2008/92916

Judgment

1. BATHURST CJ: I agree for the reasons expressed by James J that leave to appeal against sentence should be granted to the applicant but the appeal be dismissed.

1. JAMES J: Daniel Clayton Scott applied for leave to appeal against sentences imposed on him in the Supreme Court by Hidden J for two offences to which he had pleaded guilty. For an offence of being an accessory before the fact to an offence of aggravated assault with intent to rob while armed with a dangerous weapon the sentencing judge imposed a sentence of a fixed term of imprisonment of five years commencing on 17 June 2008. For an offence of being an accessory before the fact to manslaughter the sentencing judge imposed a sentence of 11 years, consisting of a non-parole period of eight years commencing on 17 June 2009 and a balance of the term of three years. The overall sentence was, accordingly, head sentences totalling 12 years and a fixed term and a non-parole period totalling nine years.

1. The trial of the applicant had been fixed to commence before Hidden J and a jury on charges which included a charge of being an accessory before the fact to murder. However, after discussions between the Crown and the applicant's legal representatives, the applicant entered the pleas of guilty to which I have already referred and the Crown accepted those pleas in full discharge of the indictment.

1. Manslaughter is an offence under ss 18 and 24 of the Crimes Act , for which the maximum penalty is imprisonment for 25 years. Assault with intent to rob being armed with a dangerous weapon is an offence under s 97(2) of the Crimes Act for which the maximum penalty is imprisonment for 25 years. There is no standard non-parole period for either offence. Under s 346 of the Crimes Act every accessory before the fact to a serious indictable offence, that is an offence punishable by imprisonment for life or for a term of five years or more, is liable to the same punishment to which he would have been liable had be been the principal offender.

1. A statement of agreed facts was prepared for the sentencing of the applicant and in his remarks on sentence the sentencing judge summarised this statement. On this application no complaint was made about any part of his Honour's summary of the statement of agreed facts and the following statement of the facts of the offences is based on his Honour's summary. As his Honour noted in his remarks on sentence, the facts were quite extraordinary.

The Facts of the Offences

1. The offender's father was a longstanding friend of the victim of the offences, a man named Elliot.

1. In 1997 the applicant's father and Mr Elliot decided to open and conduct a brothel. Before the brothel actually opened, the applicant's father died and the applicant inherited his father's share in the business venture.

1. After a time the relationship between the applicant and Mr Elliot deteriorated and it was agreed between them that Mr Elliot would sell his share in the business to the applicant. The applicant had no ready funds and he provided the consideration for the transfer to him of Mr Elliot's share in the business by transferring to Mr Elliot his family home, which had been built by his father. The applicant deeply resented Mr Elliot taking his house.

1. In February 2000 Mr Elliot began the construction of a new brothel about 300 metres away from the existing brothel. This angered the applicant, as it was his understanding that there was an agreement between himself and Mr Elliot that Mr Elliot would not open any brothel in competition with the existing brothel.

1. The two principal offenders in the offences for which the applicant was sentenced as being an accessory before the fact were two men named Utz and Grupe. Both Utz and Grupe had been in the Australian army and the applicant had met Utz while serving in the Army Reserve. The applicant knew that Utz was a gun enthusiast and he had been told that Utz and a friend of Utz were available "to bash or fix up someone".

1. The applicant told Utz of his grievances against Mr Elliot. Utz became aware that Mr Elliot regularly carried a significant amount of cash and was likely to have a large amount of cash concealed in his house.

1. In April or May 2000 the applicant asked Utz to intimidate and harm Mr Elliot. It was agreed by the applicant and Utz that Utz would confront Mr Elliot and cause Mr Elliot some physical harm, in the hope that this would make Mr Elliot conduct his new business more fairly to the applicant. It was also agreed that Utz would rob Mr Elliot of his money, for Utz's own benefit. Utz recruited Grupe to participate in the carrying out of the agreement.

1. In May 2000 Utz and Grupe formed a plan to intercept Mr Elliot at his brothel, force him into a vehicle and drive him to his home and there compel Mr Elliot at gunpoint to disclose where his money was hidden.

1. Two days before Mr Elliot's death the applicant, Utz and Grupe met at a hotel. The applicant showed Utz and Grupe a photograph of Mr Elliot and provided a plan of the house. The applicant provided Utz with a pistol but did not provide any ammunition for the pistol. The applicant said that, as he would come under suspicion, he would arrange an alibi.

1. Utz and Grupe were in possession of a number of firearms and a patrol vehicle, which they had stolen some months previously from an army establishment.

1. On 26 May 2000, the day on which the offences were committed, Utz and Grupe drove the patrol vehicle to where Mr Elliot's new brothel was under construction. Each of them was armed with an automatic weapon and ammunition. They also had the pistol which the applicant had given them. It was loaded and equipped with a silencer. Both Utz and Grupe were wearing balaclavas.

1. When Mr Elliot appeared there was a physical struggle between Utz and Mr Elliot, in the course of which Mr Elliot succeeded in removing the balaclava Utz was wearing. Mr Elliot tried to escape. Grupe fired a round or "burst" to stop Mr Elliot escaping, thereby wounding Mr Elliott. Utz then shot Mr Elliot while he was lying on the ground. Ballistics evidence showed that 15 rounds of ammunition were fired into Mr Elliot's body while he was lying on the ground. The pistol which the applicant had provided was also fired, ten fired cartridge cases being found. After they had shot Mr Elliot Utz and Grupe drove away from the scene.

1. Towards the end of the year 2000 Utz contacted the applicant and demanded that the applicant pay money to him. Utz threatened the applicant that, if he did not pay or if he revealed what had happened to the police or anyone else, the applicant, his wife and his children would be killed. The applicant agreed to pay $50,000 to Utz and Grupe and did so by three instalments in early 2001.

1. In March 2002 Grupe killed Utz during a violent altercation between them. Grupe was tried for murder in Queensland but was acquitted on the basis of self-defence.

1. While Grupe was in custody awaiting trial for the homicide of Utz, he was interviewed by New South Wales police about the killing of Mr Elliot. Much of the statement of agreed facts and hence the sentencing judge's summary and my further summary is derived from what Grupe told police.

1. Grupe pleaded guilty to the murder of Mr Elliot and was sentenced to imprisonment for 19 1/2 years with a non-parole period of 14 1/2 years. He received a substantial discount for his plea of guilty and the assistance he had provided.

1. The sentencing judge made findings that the applicant knew that Utz and Grupe might have other firearms (that is firearms other than the pistol) and that these other firearms might be loaded.

1. In his remarks on sentence the sentencing judge summarised the basis on which the applicant was being sentenced for manslaughter as follows: -

"The offender stands for manslaughter on the basis that a reasonable person in his position, planning this enterprise to harm and intimidate Mr Elliot, would have realised that he was exposing him to an appreciable risk of serious injury. He did not intend, nor did he anticipate, that Mr Elliot would be shot at, let alone killed."

1. With respect to the offence of manslaughter, the sentencing judge said in paragraph 39 of his remarks: -

"The manslaughter is clearly in the more serious category of offences of that kind. The offender was the instigator of an enterprise which was both unlawful and highly dangerous. As I have said, he knew there was a risk that Utz and Grupe might carry loaded firearms. While he did not anticipate that Mr Elliot would be deliberately shot, he must have been aware of the possibility of the involuntary discharge of a gun in the course of a violent incident. Obviously, Utz and Grupe were experienced in the use of firearms but that eventuality could not be ruled out."

1. With respect to the offence of assault with intent to rob whilst armed with a dangerous weapon, his Honour noted that the offence (like the manslaughter offence) was aggravated by being committed in company and was aggravated because the robbery was to be perpetrated in the victim's home.

1. The sentencing judge found that the criminal venture was conceived primarily, although not wholly, for financial gain. The applicant had been motivated by his desire to protect his business interests from competition from Mr Elliot and by his animosity towards Mr Elliot. Financial gain was the motive for the planned robbery, although the applicant was not himself to receive any part of the proceeds.

Subjective Features

1. In his remarks on sentence the sentencing judge noted some of the subjective features of the applicant.

1. The applicant had left school early. He completed a carpentry apprenticeship and worked in his father's building business. This had been his only work experience until, after his father's death, he found himself the joint proprietor of a brothel.

1. The applicant had separated from his wife by whom he had had two children in 1999 and had entered into a relationship with another woman, which the sentencing judge found to be stable.

1. The applicant had no criminal history and no history of aggressive behaviour. The sentencing judge agreed with an opinion of a psychologist who had interviewed the applicant that the applicant's expectation that, if everything had gone according to plan, Mr Elliot would not have pursued the development of his competing brothel as "naive and short sighted". The psychologist did not detect any sign of mental illness.

1. The sentencing judge found that the applicant had been a well-behaved prisoner, who had taken up the rehabilitative opportunities available to him within the Correctional system. The sentencing judge found that the applicant was remorseful and had insight into the seriousness of his offence. The sentencing judge found that the applicant's pleas of guilty were late pleas but should be allowed a discount of 15 per cent for their utilitarian value.

The Reasoning of the Sentencing Judge

1. The sentencing judge rejected a submission by the Crown that there should be proportionality between the sentences to be imposed on the applicant for the offence of manslaughter and the sentence which had been imposed on Grupe for the murder of Mr Elliot. His Honour reasoned that, although Grupe had been sentenced for his part in the same criminal episode, the offence for which he had been sentenced had been much more serious and his criminality had been of a different order from that of the applicant.

1. The sentencing judge noted that the sentences to be imposed would have to give effect to the sentencing purposes of retribution and deterrence (as well as the other purposes of sentencing). General deterrence was more important than specific deterrence.

1. The sentencing judge found in favour of the applicant that he was a person of previous good character who had committed serious offences in unusual circumstances but who retained support in the community and was unlikely to re-offend. The sentencing judge noted that he had been referred by counsel for the applicant to some single judge sentencing decisions. However, his Honour considered that little assistance would be gained from these cases. It will be necessary to make further reference to this part of his Honour's remarks on sentence in considering one of the applicant's grounds of appeal against sentence.

1. The sentencing judge explained in his remarks on sentence that, but for the pleas of guilty, he would have imposed a fixed term of imprisonment of six years for the offence of armed assault with intent to rob, that he would allow a discount of 15 per cent for the plea of guilty and would round off the resulting figure to five years. His Honour said that, but for the plea of guilty, he would have imposed a sentence of 13 years for the offence of manslaughter, that he would allow a discount of 15 per cent for the plea of guilty and would round off the resulting figure to 11 years. His Honour said that he would fix a non-parole period slightly below the statutory proportion in sentencing the applicant for the offence of manslaughter, so as to preserve the statutory proportion in the aggregate sentence.

1. The applicant relied on two grounds of appeal against sentence, namely: -

1. The sentencing judge erred in failing to sentence the applicant in accordance with sentencing patterns that were prevalent at the time of the offence.

2. The sentencing judge erred in failing to make the sentence in relation to the assault with intent to rob wholly concurrent with the sentence in relation to the manslaughter count.

I will consider these grounds of appeal in turn.

1. The sentencing judge erred in failing to sentence the applicant in accordance with sentencing patterns that were prevalent at the time of the offence.

1. It was apparent from the submissions of counsel for the applicant in support of this ground that the ground was directed to the sentence for the offence of manslaughter (being an accessory before the fact to manslaughter).

Submissions for the applicant

1. The steps in the submissions of counsel for the applicant can be summarised as follows.

1. There had been a delay in the sentencing of the applicant. The offence had been committed on 26 May 2000 but the applicant had not been sentenced until 10 September 2010.

1. If there has been a delay in the sentencing of an offender and in the period since the time of the commission of the offence sentencing patterns (sentencing practice) have moved adversely to the offender, then the sentencing court should take into account sentencing patterns for the offence at the time of the commission of the offence. Counsel referred to the leading case of R v MJR (2002) 54 NSWLR 368.

1. Since the commission of the offence sentencing patterns in sentencing for manslaughter had moved adversely to the applicant. To make good this submission counsel referred to paragraph 46 of Hidden J's remarks on sentence in the present case and to paragraph 40 of Howie J's remarks on sentence in R v Frazer and Spencer [2007] NSWSC 1449.

The Crown ' s submissions

1. The principal submissions of counsel for the Crown can be summarised as follows.

1. The Crown accepted that there had been some delay in the sentencing of the applicant and the Crown accepted the principle established by MJR.

1. There are serious practical difficulties in a sentencing court determining what were, a number of years previously, the patterns of sentencing for an offence and these practical difficulties are greater in the case of the offence of manslaughter, where there is a particularly wide range of offending behaviour and it is difficult to discern, even at any one time, any pattern in the sentences being imposed for the offence.

1. Notwithstanding this Court's usual wariness in relying on sentencing statistics, on an enquiry into whether sentencing patterns for an offence have changed the Court can properly refer to statistics of sentences for manslaughter. The Crown referred to a publication of the New South Wales Judicial Commission Sentencing Homicides in New South Wales 1994-2001 as containing statistical information about sentencing patterns for manslaughter at about the time of the present offence and to statistics kept by the Judicial Commission of sentences for manslaughter from April 2003 to March 2010 as containing statistical information about sentencing patterns for manslaughter at about the time the applicant was sentenced. It was submitted that a comparison of the two sets of statistics showed that there had not been any significant increase in sentences for manslaughter.

1. The Crown also referred to sentences in some individual cases as showing that the sentence imposed on the present applicant was consistent with sentencing patterns at the time the offence was committed.

Decision

1. Although the delay in the present case between the time of the commission of the offence and the time at which the applicant was sentenced was less than the delay in MJR itself and in some cases in which MJR has been applied, there was a delay between the date of the offence and the date of the sentencing for the offence and the Court must have regard to the principle established by MJR .

1. In MJR it was held (by majority) that a sentencing court should take into account sentencing practice at the date of the commission of an offence, when sentencing practice has moved adversely to the offender between the date of the commission of the offence and the date of the sentencing for the offence. In MJR the Court followed its earlier decisions in R v Shore (1992) 66 A Crim R 37 and R v Moon (2000) 117 A Crim R 497 and declined to follow its earlier decision in R v PLV (2001) 51 NSWLR 736 .

1. There is likely to be serious practical difficulty in establishing what was the sentencing practice at the time an offence was committed, when the offence was committed a number of years previously. This practical difficulty was adverted to in MJR by Sully J, with whose judgment three of the other four members of the Court agreed, at 383-4 [104] where his Honour said:-

104 As a practical matter, the approach in R v Shore cannot be implemented, as it seems to me either intelligently or intelligibly, unless it happens, as was fortuitously the fact in R v Shore itself, that there exists an authentic and credible body of statistical material that is capable of putting practical flesh upon the theoretical bones of an approach that entails reconstructing what would have been done twenty or so years previously. In that connection, I am in complete and respectful agreement with what was said by Whealy J and by Smart AJ, respectively, in the passages cited by the Chief Justice (at 370[8] and [9] supra).

1. At 370[8] in his judgment in MJR the Chief Justice said:-

"The issue has also arisen in this Court in R v Moon (2000) 117 A Crim R 497 at 502[23] where Whealy J applied R v Shore and referred to R v Watson . His Honour also emphasised the difficulty of applying the principle:

[23] Although the principle stated in Shore is clear, its application in a particular appeal is often a difficult matter. First, there is a need to have a clear picture as to the range of penalties imposed at the earlier point of time. In Shore's case for example, there was an extensive analysis of over twenty cases of importation of drugs (see Schedule, shore at 49). Secondly, the perceived difference between the range of sentences disclosed at the earlier point of time and the sentence imposed by the sentencing judge may reveal a discrepancy. Nevertheless it may be one of not so high a kind that the appellate court should interfere ( Shore at 43)."

1. At 370[9] in his judgment in MJR the Chief Justice said:-

9 To similar effect, are the observations of Smart AJ (at 746 [107] in R v PLV where his Honour said:

"The judge correctly had regard to the position which existed in 1974 when the offence was committed and the applicant's present position. There are practical difficulties in trying to recapture the situation which existed 25 years ago. Reference to the odd decided case may not be helpful in trying to obtain an overall picture. Whilst it is not perhaps the best source, there are judges who have a reasonably good recollection of the practice in the courts and the sentences imposed in the period 1965 to 1980. There are judges who do not have such knowledge. If there is no substantial evidence as to that practice (and the sentences) and the sentencing judge is not aware of them then they obviously cannot be taken into account."

1. The onus is on an offender who contends that sentencing practice has moved adversely to him since the time of the commission of the offence, to establish what was the sentencing practice at the time of the commission of the offence; Moon per Whealy J at 502[25] and per Howie J at 510[64].

1. The authorities I have already referred to show that evidentiary materials which can be used to discharge this onus include sentencing statistics, individual sentencing decisions and recollections of judges having knowledge of what was the sentencing practice at the time the offence was committed.

1. As I have already noted, the evidentiary materials relied on by the present applicant were paragraph 46 of Hidden J's remarks on sentence in the present case and paragraph 40 of Howie J' remarks on sentence in R v Frazer and Spencer .

1. In paragraph 46 of his remarks on sentence in the present case Hidden J said:-

"46 Mr Dalton referred me to three cases of sentence for manslaughter arising from a killing in the course of a criminal enterprise: R v Puta and Ors [2001] NSWSC 225, R v Fraser and Spencer [2007] NSWSC 1449 and R v Jackson [2009] NSWSC 168. The first two cases involved shootings. Puta and Ors was a decision of my own, while the other two cases were decisions of Howie J. It is not necessary to analyse them. I have had regard to them but, obviously, every sentencing exercise turns on its own facts and circumstances and little assistance can be gained from reference to a small number of other cases. It should be said, however, that there has been an increase in sentences for manslaughter in recent years. I would have to acknowledge that the sentences passed in Puta and Ors in 2001 would not accord with contemporary sentencing standards."

1. In Puta and Others Hidden J on 30 March 2001 had sentenced a number of offenders for a manslaughter committed on 5 April 1998.

1. In R v Frazer and Spencer Howie J on 11 December 2007 sentenced two offenders for a manslaughter committed on 11 January 2005. In paragraph 40 of his remarks on sentence Howie J said:-

"I believe that the manslaughter here is as serious as it could be save for the fact that the offenders are not professional robbers. By that I mean as serious as an offence of unlawful and dangerous act manslaughter can be. As I indicated in the course of submissions, I believe there has been an increase in sentences for manslaughter in more recent times, perhaps not for unlawful and dangerous act manslaughters to the same degree, having regard to the cases presented to me. I find it difficult, having regard to the range of sentences imposed in other somewhat similar cases, to mark sufficiently the distinction between committing an offence of armed robbery in the circumstance of this case and where the same acts are done, but resulting in the death of the householder."

1. At the time the applicant's offence was committed Hidden J was a judge of the Supreme Court. Howie J, who had been a judge of the District Court and who had also been for a time an acting judge of the Supreme Court, was appointed a judge of the Supreme Court on 11 October 2000. It can be accepted that Hidden J in 2010 and Howie J at the time he sentenced Frazer and Spencer would have had some recollection of some sentences for manslaughter in earlier times.

1. I make the following comments about paragraph 40 of Howie J's remarks. His Honour used tentative language "I believe", his Honour thought that any tendency had been less in the case of manslaughter by unlawful and dangerous act and it is unclear what his Honour meant by "in more recent times".

1. As already indicated, the evidentiary materials principally relied on by the Crown were the statistics of sentences for manslaughter between 1994 and 2001 in the Judicial Commission's publication "Sentencing Homicides in New South Wales 1994-2001" and the statistics of sentences for manslaughter between April 2003 and March 2010 kept by the Judicial Commission.

1. The statistics for the period 1994-2001 were for 231 offenders. Head sentences varied between 18 months and 20 years. The median head sentence was seven years. Non-parole periods varied between eight months and 14 1/2 years. The median non-parole period was four years three months. Twenty offenders received head sentences of more than ten years. Nine offenders received non-parole periods of eight years or more.

1. Statistics for the period between April 2003 and March 2010, some of which were for 234 offenders and some of which were for only 193 of those offenders, showed that head sentences varied between three years and 20 years, that the median head sentence was seven years six months and that non-parole periods varied between 12 months and 16 years, the median non-parole period being three years six months.

1. It seems to me that the comparative statistics, whilst suggesting that there may have been some upward trend in the lowest sentences for manslaughter, do not establish that sentencing practice has moved adversely to offenders for more serious offences of manslaughter.

1. The Crown also relied on some sentencing decisions made at about the time of the commission of the applicant's offence. In R v Nikau [1999] NSWCCA 322 the Court of Criminal Appeal by majority dismissed a prisoner's appeal against a sentence passed on 30 October 1998 for an offence of manslaughter committed on 28 November 1995, being a head sentence of 12 years with a minimum of eight years. In R v Marsh [2001] NSWSC 1109 McClellan J, as his Honour then was, on 29 November 2001 imposed a sentence of ten years four months with a non-parole period of seven years nine months for an offence of manslaughter committed on 3-4 August 2000. In R v Clissold [2002] NSWCCA 356 the Court of Criminal Appeal on 19 August 2002 dismissed a Crown appeal against a sentence of 14 years with a non-parole period of eight years for an offence of manslaughter committed on 4 August 1999. Clissold had this similarity to this present case that the offender was sentenced on the basis of having been an accessory before the fact to manslaughter by unlawful and dangerous act.

1. In my opinion, these three decisions are only of very limited assistance. The facts of each of the cases were very different from the facts of the present case and tend to confirm the truism that the facts of offences of manslaughter vary widely.

1. Howie J in his judgment in Moon , with which Fitzgerald JA agreed, observed at 510 [65] that, if sentencing practice has moved adversely to an offender since the time of the offending, this will probably be a reflection of changes in the attitude of the legislature to the type of offending, evidenced by legislative changes in the nature of the offence or offences and increases in the maximum penalty for the offence or offences. Evidence of such changes in the attitude of the legislature can be observed in the case of some offences, such as offences of child sexual assault. However, the offence of manslaughter remained unchanged, with the same maximum penalty, between 2000 and 2010. While standard non-parole periods have been enacted for many offences, with a resulting increase in the level of sentences for some offences, there is no standard non-parole period for manslaughter.

1. On the whole of the evidentiary materials placed before the Court on this application and particularly the statistical evidence adduced by the Crown, I am not satisfied that it has been established that there was any change, or at least any significant change, in sentencing practice for the offence of manslaughter between the time of the applicant's offence and the time of the sentencing of the applicant.

1. This conclusion is sufficient to dispose of the first ground of appeal. It would not have been an error for the sentencing judge not to sentence the applicant in accordance with sentencing patterns prevailing at the time of the offence, if it has not been shown that there was any significant difference between sentencing patterns prevailing at the time of the offence and sentencing patterns prevailing at the time of the sentencing.

1. It is, however, necessary to deal with a matter which arose in the course of the hearing of the application and is within the general purview of the first ground of appeal or at least closely related to it.

1. I have already quoted paragraph 46 of the sentencing judge's remarks on sentence. In paragraph 46 his Honour said that little assistance could be gained from three cases to which his Honour had been referred, including his Honour's own sentencing decisions in R v Puta and Ors , because each case turns on its own facts and little can be gained from referring to a small number of other cases. However, his Honour then asserted that there had been an increase in sentences for manslaughter and acknowledged that the sentences he had passed in Puta would not accord with contemporary sentencing standards.

1. Earlier, in paragraph 44 of his remarks the sentencing judge had said:-

"I shall arrive at the appropriate sentence ......... having regard to prevailing standards of sentences for manslaughter".

1. His Honour did not expressly say whether by "prevailing standards" he meant standards prevailing at the time of the sentencing or standards prevailing at the time of the offence. However, if his Honour had meant standards prevailing at the time of the offence, I would have expected him to have expressly said so.

1. It is necessary to exercise caution before concluding that so experienced a criminal judge as his Honour might have misdirected himself but the conclusion I consider I should form is that what his Honour said in paragraphs 44 and 46 of his remarks should be interpreted as conveying that his Honour considered that he should sentence the applicant in accordance with standards of sentencing prevailing at the time of the sentencing and not in accordance with standards of sentencing prevailing in 2001, and that an additional reason for not being able to derive any assistance from the sentences in Puta was that those sentences did not accord with sentencing standards at the time at which his Honour was sentencing the applicant.

1. On this interpretation of his Honour's remarks his Honour did misdirect himself, that he should sentence the applicant in accordance with sentencing standards at the time the applicant was being sentenced and, as a result of this misdirection, his Honour, believing that there had been a change in sentencing standards, might have imposed a heavier sentence on the applicant than he would have done, if he had applied his recollection of sentencing standards at the time of the offence.

1. In these circumstances, I consider that it is necessary for this Court to determine whether it is of the opinion that a less severe sentence than that imposed by his Honour would be warranted; ( Criminal Appeal Act s 6(3)). In making this determination I consider that this Court should proceed on the basis that it has not been established that sentencing practice has moved adversely to the applicant to any significant degree since the time of the offence.

1. I have already referred to the objective facts of the offence and the subjective features of the applicant. I have already quoted paragraph 39 of the sentencing judge's remarks in which his Honour found that the offence was in the more serious category of offences of manslaughter and gave reasons for that finding.

1. In my opinion, this Court should find that no less severe a sentence than that imposed by the sentencing judge would be warranted.

1. I would reject the first ground of appeal against sentence.

2. The sentencing judge erred in failing to make the sentence in relation to the assault with intent to rob wholly concurrent with the sentence in relation to the manslaughter count.

1. In support of this ground of appeal it was submitted by counsel for the applicant that both the offences for which the applicant was sentenced were "part and parcel" of the same plan; that the culpability for the offence of assault with intent to rob being armed with a dangerous weapon was wholly subsumed within the culpability for the manslaughter offence (counsel referred to Cahyadi v R (2007) 168 A Crim R 41 at 47 [27] per Howie J) and that in making the sentences for the two offences partly concurrent the sentencing judge had infringed the principle that an offender should not be doubly punished for the same conduct (counsel referred to Pearce v The Queen (1998) 194 CLR 610 at 623). Counsel for the applicant said that the sentencing judge had not given any reasons in his remarks on sentence for making the sentences for the two offences partly cumulative.

1. Counsel for the Crown pointed out that in the proceedings on sentence counsel then appearing for the applicant had accepted that the sentences for the two offences should be partly cumulative and that cumulation to the extent of one year would be appropriate. Accordingly, it was not surprising that there had been no discussion in the sentencing judge's remarks on sentence about whether the sentences for the two offences should be wholly concurrent or partly cumulative.

1. It was submitted by counsel for the Crown that it had been within the sentencing judge's discretion to make the sentences for the two offences cumulative to the extent to which he had.

1. In my opinion, it was open to the sentencing judge to consider that there had been some separate criminality in the offence of assault with intent to rob which was not comprehended within the criminality for the manslaughter offence and hence to make the sentences partly cumulative.

1. Even if there was only one plan, that plan was capable of being dissected into a part of the plan that Mr Elliot should be intimidated and physically harmed and a part of the plan that Mr Elliot should be robbed. The sentencing judge noted in his remarks on sentence that it was an aggravating factor of the offence of assault with intent to rob (but not of the manslaughter offence) that the offence should be committed in the home of the victim where his cash was believed to be hidden. It was not part of the plan for the manslaughter offence that Mr Elliott was to be intimidated and physically harmed in any particular place.

1. I would reject the second ground of appeal.

Conclusion

1. Having rejected both grounds of appeal against sentence I would, while giving leave to appeal against sentence, dismiss the appeal against sentence.

1. JOHNSON J: I agree with James J.

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Decision last updated: 10 October 2011