Regina v Oinonen [1999] NSWCCA 310

New South Wales Court of Criminal Appeal CITATION : Regina v Oinonen [1999] NSWCCA 310 FILE NUMBER(S) : CCA 60571/98 HEARING DATE(S) : Wednesday 29 September 1999 JUDGMENT DATE : 29 September 1999

PARTIES : Regina v Lauri Leevi Oinonen JUDGMENT OF : Spigelman CJ at 23; Grove J at 1; Sully J at 24

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70031/97 LOWER COURT JUDICIAL OFFICER : Dunford J

COUNSEL : L.M.B. Lamprati (Crown) P.R. Boulten (Appellant) SOLICITORS : S.E. O'Connor (Crown) T.A. Murphy (Appellant) CATCHWORDS : Criminal Law And Procedure - Sentence - Indictment For Murder - Offer To Plead Guilty To Manslaughter Rejected By Crown - Conviction By Manslaughter By Jury - Considerations Arising Out Of Offer To Plead Guilty To Crime Of Which Ultimately Convicted DECISION : Appeal Allowed. Appellant Resentenced.

IN THE COURT OF CRIMINAL APPEAL

60571/98

SPIGELMAN CJ GROVE J SULLY J

Wednesday 29 September 1999

REGINA v LAURI LEEVI OINONEN

JUDGMENT

1 GROVE J: This is an application for leave to appeal against sentence following the conviction of the appellant for manslaughter at the Dubbo Supreme Court. 2 The appellant was there indicted before Dunford J and a jury for murder. The jury found him not guilty of murder but guilty of manslaughter. His Honour sentenced the appellant to a total of eleven years penal servitude, divided into minimum and additional term components of eight years and three years respectively. That division followed a finding by his Honour that there were special circumstances justifying the extension of the additional term beyond the proportion that would have resulted from the application of the formula in s.5(2) of the Sentencing Act. 3 The circumstances do not require lengthy elaboration. 4 The applicant was a resident of Lightning Ridge and engaged in opal mining. He became concerned that a young man might have stolen some opal from him. The young man was in fact the grandson of a woman with whom the appellant was involved in a de facto relationship. However, having acquired the suspicion about the opal the appellant took a .22 rifle, loaded it, and did not engage the safety catch. He was well affected by the prior ingestion of intoxicating liquor, including methylated spirits. 5 He drove into town to the house where the young man was staying. He sought to remonstrate with him about the alleged theft. That theft was denied. 6 The victim attempted to depart from the scene but his way was blocked by the appellant. Eventually he sought to escape by running down the street. As he did so the appellant raised the rifle to his shoulder and fired it in his direction. It struck him fatally. 7 The finding of the jury obviously meant that they were not satisfied that the appellant intended death or grievous bodily harm. Nevertheless, it must be said that to present a lethal weapon without its safety device engaged is of itself a dangerous act of a very high order. 8 Substantially two matters have been canvassed in the course of this appeal. As I am of a view that the second should be sustained I will deal relatively briefly with the first. 9 It is contended that his Honour was in error in assessing the circumstances as revealing a most serious category case of manslaughter by an unlawful and dangerous act. When his Honour used that expression he was obviously not adverting to the degree of seriousness which gives rise to the application of maximum penalty. In my view his Honour's assessment was not in error. As I have indicated, the facts were that the appellant for the purpose of engaging in an argument arrived armed with a lethal weapon which he had deliberately not rendered safe. 10 It was argued on his behalf that the findings indicated that the appellant should be treated as if he intended no harm at all. When the circumstances involve the presentation and discharge of a lethal weapon, it is difficult to imagine any circumstances in which harm could be intended which was of a lesser standard than that of intending really serious injury. The essence of the seriousness of those categories of crime which involve the use of such weapons is inherent in the nature of them. 11 The second matter canvassed in the appeal relates to the negotiations, if I may so describe them, between the appellant's representatives and the Crown prior to arraignment. His Honour noted in his remarks on sentence that it was submitted that he should sentence the prisoner as if he had pleaded guilty (to manslaughter) on arraignment. He noted that he had offered to plead guilty to manslaughter but the Crown would not accept that plea. 12 His Honour made some observations concerning the course of trial. As I understand his observations(on this sentence application we do not have a full trial transcript) his Honour noted that it was the posture of the appellant that he could only be guilty of manslaughter if, in the circumstances, he had deliberately pulled the trigger. It was concurrent with adopting that posture that the offer to plead guilty to manslaughter had been made. It appears that his Honour ruled, understandably if I may respectfully say, that the appellant could be found guilty of manslaughter by the jury in circumstances other than those involving the deliberate pulling of the trigger of the weapon. 13 Be that as it may, his Honour went on to make the following remarks, at page 6 of his remarks on sentence: "Although the Crown would not have accepted it, it was still open to the prisoner to plead not guilty of murder but guilty of manslaughter on arraignment. He did not do so but pleaded not guilty simpliciter, thereby putting the Crown to proof of all the elements of the charge of manslaughter, including calling ballistic witnesses to show the gun would not have discharged accidentally". 14 So far as the last mentioned example is concerned, it has been conceded by counsel for the Crown appearing in the appeal, that it would be expected that in any event upon trial of the indictment for murder the Crown would have called such evidence. 15 It is true that technically the applicant did not plead guilty to manslaughter and he therefore does not fall within the precise terms of section 439 of the Crimes Act. There has been a long practice, however, in this court and in trial courts to take into account the offer of a plea of guilty which matches the crime for which a person is ultimately convicted. 16 The offer of that plea of guilty or, in usual circumstances, the actual plea of guilty, is of benefit to the person charged broadly in two ways: It is taken as an indication of remorse and contrition for the offence committed and, second, there is what is described as the utilitarian value of the plea; this includes the relief of the State from having to call witnesses and, indeed, the reliefs to the various witnesses of the burden of having to give evidence and potentially being cross-examined. 17 In the instant case his Honour found otherwise that the appellant was in any event remorseful. He had demonstrated his remorse almost immediately after the crime had been committed. He was however as a result of his Honour's findings which are implicit in the remarks which I have quoted, deprived of any benefit that he might expect for what I have described as the utilitarian value of the offer of his plea. 18 In my view the appellant should have been given that benefit. The jurisdiction of this court therefore should be invoked and intervention should take place. This brings me to the question of resentence. 19 The appellant had an almost clear prior record. He is a man of some 62 years of age. He has been committed to prison on a first occasion. He has demonstrated his remorse, not only by his offer of the plea, but in practical ways which his Honour mentioned elsewhere in his remarks. 20 Like his Honour, I would also find that there were special circumstances justifying the extension of the additional term component of the total sentence. It is not necessary to repeat his Honour's findings, which I would respectfully adopt. I would therefore propose the following orders: 21 That the application for leave to appeal be granted, and the appeal allowed. 22 The sentence imposed below be quashed, and in lieu thereof the appellant be sentenced to a total of nine years penal servitude to comprise a minimum term of six years commencing on 6 November 1996 and expiring on 5 November 2002, together with an additional term of three years commencing on 6 November 2002. The appellant would be eligible for release on parole on 5 November 2002. 23 SPIGELMAN CJ: I agree with the orders proposed by Grove J, and his reasons. 24 SULLY J: So do I also agree. 25 SPIGELMAN CJ: The orders of the court are as indicated by Grove J. **********