New South Wales Court of Criminal Appeal CITATION : R v Curry [2002] NSWCCA 109 FILE NUMBER(S) : CCA 60239/01 HEARING DATE(S) : 2 April 2002 JUDGMENT DATE : 2 April 2002 PARTIES : Regina v Raymond Arthur Curry JUDGMENT OF : Heydon JA at 31; Studdert J at 1; Buddin J at 32 LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 70209/00 LOWER COURT JUDICIAL Hidden J OFFICER : COUNSEL : P.G. Ingram (Crown) T.J. Golding (Applicant) SOLICITORS : S.E. O'Connor (Crown) D.J. Humphreys (Applicant) LEGISLATION CITED : Crimes Act CASES CITED: R v Oinonen [1999] NSWCCA 310 Cameron v The Queen [2002] HCA 6 DECISION : Leave to appeal granted; appeal dismissed. IN THE COURT OF CRIMINAL APPEAL 60239/01 HEYDON JA STUDDERT J BUDDIN J Tuesday 2 April 2002 REGINA v RAYMOND ARTHUR CURRY Judgment 1 STUDDERT J: The applicant, Raymond Arthur Curry, seeks leave to appeal against the sentence imposed upon him by Hidden J on 30 March 2001. 2 Earlier, the applicant and five other men had stood trial together, all being charged with two counts of murder, the victims being Orhan Yildirim and Mehmet Unsal. The trial was a lengthy one extending from 3 April to 13 September 2000. The jury found each man charged not guilty of murder but guilty of manslaughter on each count. 3 There then followed proceedings on sentence. Following his conviction, the applicant was sentenced for the manslaughter of Orhan Yildirim to imprisonment for a term of nine years to date from 13 November 1998, the date upon which the applicant had been arrested and after which he had been refused bail. The judge imposed a non parole period of five years. In respect of the manslaughter of Mehmet Unsal, the applicant was also sentenced to imprisonment for nine years, but the sentence was set to commence on 13 November 1999. His Honour again imposed a non parole period of five years, this time to expire on 12 November 2004. 4 The sentences imposed resulted in an aggregate non parole of six years with an effective parole period of four years thereafter. 5 The maximum penalty fixed by s 24 of the Crimes Act for the crime of manslaughter is imprisonment for twenty-five years but the range of circumstances in which the crime may be committed varies greatly and hence, so too the determination of a sentence appropriate to any particular case. 6 It is apparent from the written submissions that the essential objective facts can be fairly shortly stated, and indeed they emerge from the remarks on sentence. There has been no criticism of the way in which his Honour there summarised the facts. 7 On 5 April 1998 the victims earlier named were ambushed in a house at Bankstown and in the course of the ambush, both men were shot dead. There were altogether nine men involved in the ambush upon the two victims; the six who stood trial and two other men who were granted indemnity from prosecution and who gave evidence at such trial, and a ninth person granted a separate trial. That separate trial had not concluded when the applicant was sentenced, and it is unnecessary to refer further to it. 8 Orhan Yildirim was shot seven times. Mehmet Unsal was shot twice. The six co-accused were the applicant, Arben Puta, Zeljko Nitrovic, Goran Mackic, Russell Oldham and Satuala Nanai. Whilst there was evidence that it was Arben Puta who shot Mehmet Unsal, and evidence that it was Zeljko Nitrovic who shot Orhan Yildirim, his Honour was not satisfied to the requisite degree that these two offenders fired the fatal shots, and in the result all six offenders were sentenced to manslaughter on the same legal basis, to which I shall shortly refer. 9 The offenders, other than Arben Puta, the tenant of the house where the shooting occurred, gathered at a cafe in the central business district of Sydney earlier in the evening of the shootings, together with the two indemnified witnesses. They then travelled in two cars to Bankstown, and his Honour found that this journey was clearly for the purpose of pursuing a plan to ambush the two victims. The men were in possession of rubber gloves and surgical tape, as well as rope. His Honour found that there seemed to be no doubt that the plan was to overpower the two victims and to bind and gag them. His Honour said there was "simply no evidence as to what was to then happen to them, and that remains in the realm of speculation". His Honour said that he approached his sentencing task "upon the basis that there is insufficient evidence to establish the motive for the attack". 10 Five guns were found either in the house or in the vicinity and of these three had been fired. However, his Honour was unable to determine that a decision to carry guns was made before the offenders arrived at the house. His Honour said "equally I can make no finding about who made that decision or who in fact had the weapons". 11 At trial the Crown case was that each of the offenders was party to a joint criminal enterprise to assault the deceased, knowing that at least one of his companions was armed with a loaded gun and contemplating the possibility that that gun might be discharged with the intent to kill or to cause grievous bodily harm. 12 Whilst manslaughter was left to the jury on several bases, the judge in sentencing the applicant and the other offenders concluded that an adequate explanation of the verdicts of the jury was that each offender was a party to the assault and knew of the presence of a gun or guns, but the jury was not satisfied that each such offender contemplated the use of a gun with the intent requisite for murder. The applicant, like the others, was aware of the presence of guns and that they might be used to frighten but not to wound. The judge recorded: "It was common ground that this was the factual basis upon which the offenders other than Puta and Nitrovic were to be sentenced", and his Honour, having found himself unable to determine that those two men fired any of the fatal shots, went on to decide that they too should be dealt with on this same basis. His Honour also said that he approached the sentencing of the offenders upon the basis that there was insufficient evidence to establish the motive for the crimes. 13 None of those facts as I have reviewed them is the subject of challenge on this application. 14 With the exception of Arben Puta and of Satuala Nanai, each of the other offenders were sentenced in the same manner as the applicant. Before proceeding to pass sentence, his Honour said: "I do not consider that the differences between the subjective cases of Mr Nitrovic, Mr Curry, Mr Mackic, and Mr Oldham are such as to call for disparity in the sentences passed upon them. Mr Puta must be dealt with more severely because of his more serious criminal record and the fact that he was on parole. The contempt charge calls for a short sentence, and his counsel accepts that that sentence must be cumulative upon the effective non-parole period which I proposed. Conversely, the evidence of Mr Nanai's good character entitles him to be dealt with more leniently..." 15 Before addressing the submissions of the applicant, I refer briefly to the subjective features of the applicant's case. 16 The applicant was twenty-four years of age at the time of the incident and was twenty-seven years old at the time of sentence. He had a criminal record consisting of some driving offences in 1990, offences of common assault and assaulting police in 1991 and a further common assault offence in 1996. Before being sentenced for these offences of manslaughter, the applicant had not been imprisoned apart from during the period in custody awaiting trial. The applicant was born in New Zealand of Samoan parents and he had a good upbringing, being educated to School Certificate standard. His employment record was found by the judge to be satisfactory. He had a supportive family who regarded his involvement in these offences as entirely out of character. He was in a de facto relationship which his Honour found to be enduring and of which there were two children. His Honour received and considered a report from a psychologist from which he observed that it appeared that the applicant had been chastened by the experience of imprisonment. The judge found to his credit that the applicant had been involved in assisting new inmates to adapt to prison life and that he assisted prisoners of Pacific Island origin to deal with their problems within the prison system. The judge accepted that the remorse he expressed to the psychologist was genuine. 17 This brings me to the ground upon which it is submitted the sentencing judge erred in connection with this applicant. It was submitted that whilst the judge indicated that he took into account the applicant's subjective circumstances and accepted that the applicant was genuinely remorseful, he did not properly bring into account an offer the applicant had made before the trial began to plead guilty to manslaughter. It was submitted that the applicant was entitled to some further discount for the notional utilitarian value of the plea that he had offered before the trial began. 18 In advancing this submission the applicant relied upon the decision of the Court of Criminal Appeal in R v Oinonen [1999] NSWCCA 310. In that case the offender stood trial for murder but the jury found him not guilty of murder but guilty of manslaughter. Prior to arraignment, the offender had offered to plead guilty to manslaughter but the Crown would not accept that plea. The applicant had indicated that he could only be guilty of manslaughter on one particular basis but the judge considered that he could have been found guilty of manslaughter on more than one basis. The judge declined to give any discount for any notional utilitarian value of the plea of guilty to manslaughter that had been offered and it was held on appeal that the sentencing judge had erred. 19 In the course of his judgment, with which the Chief Justice and Sully J agreed, Grove J said: "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 Crime 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." 20 The sentencing judge in the present case distinguished Oinonen when both Arben Puta and the applicant sought to rely upon it. The judge first addressed the situation with Arben Puta : "22 There is conflicting evidence from Mr Puta's solicitor, on one hand, and a solicitor from the Office of the Director of Public Prosecutions and a Deputy Senior Crown Prosecutor who were earlier involved in this case, on the other, as to whether an offer by Mr Puta to plead guilty to manslaughter was conveyed to the Crown before the trial. There may have been some informal discussion about that matter but it does not appear to me that any such offer was made. Mr Puta's solicitor acknowledged that he could find no notes of any such discussion and his recollection of the matter may well be faulty. Certainly, not withstanding the jury's verdicts, it is difficult to see on what basis the Crown might have accepted the offer of pleas of guilty to manslaughter on the material then available." 21 Then, later, the judge referred to an offer made by the applicant to plead guilty to manslaughter. Having referred to the remorse expressed to the psychologist which the judge accepted as genuine, his Honour went on immediately to say: "It is consistent with his offer, conveyed through his counsel to the Crown before the trial, to plead guilty to manslaughter. As I have said [and this is obviously a reference to the earlier consideration of Mr Puta's position], it is difficult to see on what basis the Crown could have accepted that offer and it does not appear that that matter was discussed. For that reason, his case also is different from Oinonen. Nevertheless, it is a matter properly to be taken into account." 22 Was his Honour correct to distinguish Oinonen as he did? 23 It seems to me that there was good reason for the judge to distinguish Oinonen in that this Court was informed that what occurred in the present case was that counsel for the applicant who appeared for him at the trial approached the Crown and asked the Crown whether the Crown would be willing to accept a plea of guilty to manslaughter. The Crown said no. At no time was there any definition of the basis upon which a willingness to plead to manslaughter was being put forward. There would seem to be no reason why the applicant could not have been specific as to the basis upon which the plea was offered, notwithstanding the many ways in which it was theoretically possible that the finding of the crime of manslaughter could be made. Moreover the factual circumstances in the applicant's case were very different from those in Oinonen and Mr Golding, for the applicant, in his written submissions properly acknowledged that it would have been difficult to identify any utilitarian value to be attached to the offer of a plea because the trial was a joint trial and the only defendant to offer a plea was the applicant. 24 In these circumstances lie the essential differences between the case of the applicant and that of Oinonen. In my opinion, the judge was correct to distinguish Oinonen in the manner in which he did. 25 Since the appeal in Oinonen was heard and since the applicant was sentenced, the High Court has delivered its judgment in Cameron v The Queen [2002] HCA 6. In their joint judgment in that case, Gaudron, Gummow and Callinan JJ identified the matter warranting a reduction in sentence (apart from an expression of contrition) as being not the utilitarian value of a plea offered but rather the willingness of the offender to facilitate the course of justice. Their Honours said this (at para 14): "Reconciliation of the requirement that a person not be penalised for pleading not guilty with the rule that a plea of guilty may be taken into account in mitigation requires that the rationale for that rule, so far as it depends on factors other than remorse and acceptance of responsibility, be expressed in terms of willingness to facilitate the course of justice and not on the basis that the plea has saved the community the expense of a contested hearing." 26 Since Cameron therefore it is proper to have regard to a plea when sentencing an offender as affording evidence of contrition and also as indicating a willingness on the part of the offender to facilitate the course of justice. The latter consideration would ordinarily warrant no less a discount than what was considered appropriate for the utilitarian value of a plea prior to Cameron. I do not therefore understand the decision in Cameron would have affected the sentence ultimately determined to be appropriate in Oinonen. 27 However, I am of the opinion that Hidden J was correct Oinonen distinguish on the basis upon which he did. It would have been extraordinarily difficult for the judge to have assessed what, if any, discount could properly be given to the applicant's undefined offer, particularly in the setting of the joint trial. Nevertheless, his Honour said that it was proper to take the offer into account, presumably as being indicative of remorse, and there is no reason to doubt that his Honour failed to do so. I see no error in the judge's approach to what had occurred in the circumstances of this case. 28 His Honour, having reviewed the subjective features of the applicant and those of his co-offenders who received the same sentences as the applicant, concluded in the passage to which I have already referred that the differences in their subjective circumstances were not "such as to call for disparity in the sentences passed upon them." That, in my opinion, was a conclusion which was properly available. 29 Moreover, having regard to the applicant's involvement in the two crimes of manslaughter and the totality of his criminality, whilst taking due account of the subjective features in the applicant's case, it seems to me that no lesser sentences than those imposed upon the applicant would have been appropriate. 30 I would propose, therefore, that leave to appeal be granted but that the appeal be dismissed. 31 HEYDON JA: I agree. 32 BUDDIN J: I also agree. 33 HEYDON JA: Accordingly the orders of the Court will be as proposed by Studdert J. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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