New South Wales Court of Criminal Appeal CITATION : Regina v Bryan Steven JOHNSON [2003] NSWCCA 129 HEARING DATE(S) : 5/5/03 JUDGMENT DATE : 22 May 2003 JUDGMENT OF : Giles JA at 1; Bell J at 2; Carruthers AJ at 52 DECISION : Leave to appeal granted; Appeal allowed; Sentence imposed in the Supreme Court quashed; In lieu thereof sentence the applicant to a term of nine years imprisonment to date from 18 May 2000 and to expire on 17 May 2009. Specify a non-parole period of six years and nine months. The first date upon which the applicant will be eligible for consideration of release on parole is 17 February 2007 LEGISLATION CITED : Criminal Appeal Act 1912 AB v The Queen [1999] HCA 46; 198 CLR 111 Cameron v The Queen [2002] HCA 6; 76 ALJR 382 R v Alexander (1978) A Crim R 141 R v Blacklidge (unreported) NSWCCA, 12 December 1995 R v Cardoso [2003] NSWCCA 15 CASES CITED : R v Cocking [1999] NSWCCA 311 R v Green [1999] NSWCCA 97 R v PRFN [2000] NSWCCA 230 R v Oinonen [1999] NSWCCA 310 R v Pennisi [2001] NSWCCA 326 R v Simpson [2001] NSWCCA 534 PARTIES : Regina Bryan Steven JOHNSON (Appellant) FILE NUMBER(S) : CCA 60029/02 COUNSEL : P Hamill (Appellant) PG Ingram (Crown) SOLICITORS : DJ Humphreys SE O'Connor LOWER COURT Supreme Court JURISDICTION : LOWER COURT 70055/01 FILE NUMBER(S) : LOWER COURT Davidson AJ JUDICIAL OFFICER : IN THE COURT OF CRIMINAL APPEAL 60029/02 GILES JA BELL J CARRUTHERS AJ Thursday, 22 May 2003 REGINA v Bryan Steven JOHNSON Judgment 1 GILES JA: I agree with Bell J. 2 BELL J: On 22 October 2001 Bryan Steven Johnson (the applicant) was arraigned before Acting Justice Davidson (the Judge) and a jury on an indictment that charged him with the murder of Ronald Alexander Ferguson on 11 May 2000 at Glossodia. He entered a plea of not guilty and stood his trial. On 5 November 2001 the jury returned a verdict acquitting him of murder but convicting him of manslaughter. He seeks leave to appeal against the severity of the sentence imposed on him for this offence. 3 On 13 December 2001 the applicant was sentenced to a term of imprisonment for ten years to date from 18 May 2000 and to expire on 17 May 2010. A non-parole period of seven years and six months was specified. 4 At trial the applicant acknowledged that it was his act that caused the death of the deceased. His defence to the charge of murder was that the Crown had failed to negative self-defence and, in the alternative, that it had failed to exclude that he was acting under provocation. 5 The proceedings were stood over to 13 December 2001 for sentence. On that date a number of reports were tendered and counsel made submissions on sentence. The Judge proceeded to pass sentence that day. The transcript of his Honour's ex tempore reasons contained in the appeal papers appears to be an uncorrected draft. I refer to this in the light of certain of the submissions made by Mr Hamill, who appeared on the applicant's behalf. 6 The following facts are taken from the Judge's remarks on sentence. 7 The applicant was aged twenty-two years on the date of the killing. He had met the deceased when he (the applicant) was aged thirteen years. The deceased asked him if he would like to earn some money by mowing his lawn on weekends. The applicant agreed to do so. On the first occasion he mowed the deceased's lawn and washed a motorcycle and received a payment of twenty-five dollars for his work. He returned to the deceased's home about one week later. On this occasion the deceased made a sexual advance to him. The deceased sexually abused the applicant on a number of occasions. Thereafter the abuse was of a gross kind and included anal penetration of him by the deceased. In all the applicant was molested by the deceased on some six or seven occasions when he was aged thirteen. The deceased introduced the applicant to the use of cannabis during this period. 8 The applicant was living with his mother at the time of the abuse. After some months he left home and went to Queensland to live with his father and stepmother. He had an unsettled relationship with both of them and, ultimately, he returned to the Wilberforce area in New South Wales. This was the area in which the deceased lived. The two saw one another on occasions following his return. The deceased tried to renew their association. He telephoned the applicant asking him if he would mow his lawn again. The applicant refused. On occasions the applicant visited the deceased's home to obtain cannabis or money from him. 9 Prior to the commission of the offence on 10 May 2000 the applicant consumed substantial quantities of alcohol, Valium and amphetamines. Thereafter he met up with a man named Gerand and the two of them smoked some cones of cannabis. They discussed how they might obtain some more of the drug. They were joined by a third man, Harris. The three of them decided to visit the deceased's premises to see if they could obtain some cannabis. 10 When they arrived at the deceased's home the applicant asked the other two men to wait outside. He said that the deceased might make a sexual advance to him. They were to come into the premises if they heard any noise. 11 The applicant knocked on the door and the deceased answered it. The applicant asked if he could get some cannabis or money. The deceased said that he could get him some cannabis. He invited the applicant to come in and have a cup of tea. They both went to the kitchen and the applicant started to make some tea. The deceased approached him from behind and rubbed himself against the applicant in a sexually explicit way. 12 The only account as to the circumstances in which the deceased met his death was that given by the applicant in his evidence. The Judge appears to have accepted this account save in certain, identified, respects. 13 The applicant pushed the deceased away when he rubbed himself against him. The deceased picked up a knife telling the applicant to "get out". There was a struggle during the course of which the applicant took hold of the knife. He stabbed the deceased in the chest. This was the fatal wound. There was a further struggle between the two during which the deceased sustained a number of stab wounds including wounds to the back of his body. The applicant said that both Gerand and Harris had come into the house at the time of this further struggle. The Judge rejected this part of the applicant's evidence. It was inconsistent with the evidence of Gerand and Harris. His Honour did not consider this matter to be of any significance. 14 The applicant maintained that after the initial stab wound the deceased had come at him and that the further stab wounds came about during this phase of the struggle. The Judge did not accept this aspect of the applicant's evidence. He characterised it as being implausible and quite improbable. 15 The applicant left the deceased's premises. The deceased's wallet was removed from the premises. 16 The deceased received the fatal wound inside the house. He did not die immediately as the result of it. He managed to walk outside the house and down the driveway of the premises for some distance to a point where he collapsed and died. 17 Dr Langlois conducted the post-mortem examination. He described the fatal wound as to the front side of the chest just below the left nipple. The path of the wound was downwards. The knife punctured the ventricle of the heart at its edge and severed a cardiac artery. The wound track was 19 cm long. Dr Langlois was of the opinion that considerable force was required to inflict this wound. 18 There was a stab wound to the base of the deceased's neck. This, too, was the product of a considerable degree of force. The wound was consistent with the knife having been inserted, withdrawn and reinserted. There was a further wound 12.5 cm long to the back of the deceased (towards the right side of the chest). There was also a wound on the back of the body towards the upper part of the chest. Finally, there was a wound to the back of the rib cage overlaying the spine. 19 In the days following the incident the applicant made a number of statements to associates inculpating himself in the killing of the deceased. 20 The Judge drew on the contents of a pre-sentence report and a report prepared by Ms Barrier, a clinical psychologist, for information as to the applicant's subjective circumstances. The applicant's parents separated when he was aged four years. Thereafter his custody had been a matter of contention. He had lived at times with both parents and with his paternal grandmother. She died when he was about eleven years of age. She had been an important figure in his life and her death was a serious emotional blow to him that may have accounted for some of his subsequent conduct. The applicant's father was a strict disciplinarian. The applicant felt rejected by him and by his stepmother. This led to him leaving them and returning to his mother's care. From as early as the age of twelve the applicant exhibited signs of behavioural disturbance. These difficulties were exacerbated by the sexual abuse. Generally, his teenage years were tumultuous and unsettled. His schooling was disrupted and ended prematurely. 21 In the months prior to the commission of the offence the applicant had been consuming substantial quantities of alcohol and prohibited drugs. His record of employment was a sparse one. 22 While in custody on remand the applicant's behaviour had been impeccable. He had been held in protective custody following an assault on him by several inmates. As at the date of sentence he had been in custody as a protection prisoner for over a year. 23 The Judge analysed the applicant's criminal record noting that there were convictions in this State and in Queensland. A number of convictions were recorded in the Children's Court. His Honour paid no regard to those. On 24 June 1996 the applicant was convicted of assault with intent to rob with wounding. He was sentenced to a term of imprisonment comprising a minimum term of one year nine months to date from 29 December 1995 with an additional term of two years and nine. He was released to parole and thereafter convicted of some relatively minor offences. On 12 November 1998 his parole was revoked. He was again released to parole on 9 April 1999. His parole was to expire on 23 May 2000. This was some twelve days following the commission of the offence. The wounding the subject of the assault and robbery offence involved a stabbing. 24 In his written submissions Mr Hamill observed: "4.1 It is not clear whether his Honour made a finding as to whether the applicant intended to kill the deceased: see R p 18-19. The transcript of his Honour's remarks is probably incorrect: see especially at the top of R p 19. The critical sentence in this passage does not make sense. In any event it appears that his Honour failed to make a finding as to the actual intention formed – was it an intention to kill or to inflict grievous bodily harm? It is submitted that the question was relevant to an assessment of the objective gravity of the offence and that the learned sentencing Judge erred in failing to make a finding." This complaint was not articulated as one of the grounds of appeal. Nonetheless it is appropriate to deal with it. The passage to which Mr Hamill referred is as follows: "Turning to the question which I raised at the outset, namely, on what basis, consistently with the jury's verdict, I should proceed in determining the sentence to be imposed on the accused, I find beyond reasonable doubt that the appropriate basis and, clearly, the most consistent basis with the evidence which was before the jury, is that the accused acted under provocation when he killed the deceased. This necessarily involves a finding that either he intended to kill the deceased or to inflict grievous bodily harm on him and I am satisfied beyond reasonable doubt, as consistently I must be, because it follows from my view as to provocation being the basis for the jury's verdict and the basis on which I should proceed on sentence, that he had one or other claimed self defence." (ROS 18-19) The concluding sentence does not appear to be an accurate transcription of what the Judge said. I do not consider that anything turns on this. The sense of his Honour's findings is clear. He approached the matter upon the basis that the applicant was possessed of an intention either to kill the deceased or to inflict grievous bodily harm upon him. It was not necessary to make a finding with any greater particularity. The Judge may have considered that it was not possible to do so. The finding that he made falls short of one that the applicant intended to kill the deceased. This was a finding favourable to the applicant. 25 In his written submissions Mr Hamill identified three respects in which the Judge was said to have erred: (i) By giving insufficient weight to the history of sexual abuse; (ii) By failing to take into account the applicant's offer to plead guilty to manslaughter prior to the commencement of the trial; (iii) By imposing a sentence which was manifestly excessive in all of the circumstances of the case. 26 To the extent that ground (i) propounds a challenge different to that taken in ground (iii) Mr Hamill relied on the following passage in the Judge's reasons: "What, as I understand the case is, must be kept firmly in mind is that the death of a human being has been brought about as a result of the act of the accused. The fact that what that human being may have been guilty of conduct in his life time, which is extremely reprehensible is relevant, no doubt, but cannot be regarded as being decisive in any way as mitigatory of the prisoner's culpability for his death." (ROS 26-27) Mr Hamill submitted that the prior acts of sexual abuse did operate to mitigate the applicant's culpability for his offence. He acknowledged that in the remarks that follow it is apparent that the sentencing judge did give weight to the history of sexual abuse, but he contended that a greater degree of significance should have attached to this factor. 27 A reading of the whole of the remarks on sentence to my mind makes clear that the Judge accepted that the offence occurred against a background that included that the deceased had sexually molested the applicant in a gross manner when the applicant was a child of thirteen. His Honour accepted that the applicant's behavioural problems (referred to in the pre-sentence report) had been exacerbated by that abuse. 28 His Honour paid regard to the history of sexual abuse in his assessment of the objective gravity of the offence. In this respect he referred to the judgment of Hunt J (as he then was) in R v Alexander (1978) A Crim R 141 for a statement of the principles involved in sentencing for provocation manslaughter. In particular he referred to the passage at p 144 in which Hunt J set out three matters of significance: (i) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; (ii) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and (iii) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence. In dealing with these three considerations the Judge took into account the history of sexual abuse. His Honour noted that in the intervening period there had been further sexual approaches made to the applicant by the deceased. The Judge found that the applicant had been able to turn these approaches to some personal advantage by obtaining cannabis and money from the deceased from time to time. His Honour took into account the applicant's expectation that he may be the subject of a further sexual advance at the time he entered the deceased's premises on the day of the killing. This led him to conclude that the degree of provocation was relatively low. Turning to the second of the considerations, his Honour found that the provocation was of a cumulative kind and that the deceased's advance in the kitchen on the day of the killing had been a triggering event. This tended to reduce the objective gravity of the offence. In considering the third factor his Honour found the degree of violence and aggression displayed by the applicant to have been excessive. 29 If one took the passage relied upon by Mr Hamill at [25] in isolation it might convey that the Judge considered that the history of sexual abuse afforded no mitigation in assessing the applicant's culpability for his offence. When the whole of the reasons are read I am satisfied that his Honour paid proper regard to the evidence of sexual abuse in assessing the gravity of the offence and in considering the subjective circumstances of the applicant. I would reject this ground of appeal. 30 I turn next to the ground that challenges the sentence as being manifestly excessive. Mr Hamill attached a schedule to his written submissions setting out brief details of sentences imposed at first instance and in this Court in manslaughter cases. He contended that the schedule afforded some basis for concluding that the sentence imposed in this case fell outside the range of sound discretion. The range of circumstances found in the cases included in the schedule serves to reinforce the frequently cited observation of Gleeson CJ (as his Honour then was) in R v Blacklidge (unreported) NSWCCA, 12 December 1995 at 4: "It has long been recognised that the circumstances that may give rise to a conviction for manslaughter are so various, and the range of culpability is so wide, that it is not possible to point to any established sentencing tariff that can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability." 31 Mr Hamill acknowledged the hurdle that he faced. In his written submissions he conceded that the range of sentences for manslaughter is very wide and that it is difficult to discern meaningful patterns from either the statistics or from the decisions in previous cases (AWS 5.1). Nevertheless he sought to draw attention to cases that might broadly be characterised as like cases and to submit by reference to them that the present sentence is manifestly excessive. He relied on R v PRFN [2000] NSWCCA 230 and R v Green [1999] NSWCCA 97. 32 The applicant in PRFN was sentenced to imprisonment for a term of six years comprising a minimum term of three years and an additional term of three years. He was a juvenile. He had been anally raped by the deceased when he was aged fourteen years. He was friendly with the deceased's son and was staying at the deceased's home on the occasion of the assault. The evidence was that this episode had a devastating psychological effect upon the appellant. He became withdrawn and his schoolwork suffered. He entertained thoughts of suicide and carried out acts of self-harm, including cutting himself with a razor and placing his hand on the hotplate of the family's combustion stove. About eighteen months after the assault the appellant disclosed that he had been sexually abused and his family set about obtaining psychological assistance for him. This had not matured into counselling prior to the date of the killing. The killing in PRFN was planned. At the time the appellant was suffering from post-traumatic stress disorder and a major depressive disorder. Both were related to the earlier rape. The disorders were characterised by continued intrusive and intense thoughts in relation to the sexual assault and a preoccupation with sexual abuse manifesting itself in physical symptoms including nausea, trembling and difficulty in breathing. 33 An appeal against the severity of sentence in PFRN was dismissed. Giles JA (in a judgment with which Grove J and Greg James J agreed) noted that the trial judge had been very conscious of the appellant's youth. The trial judge found the appellant to be a person whose prospects of rehabilitation should be excellent. I do not consider that the applicant's reliance upon PRFN assists him. The principles governing the sentencing of children are well known and, generally, commend an approach in which less emphasis is placed on considerations of general deterrence than would be appropriate in sentencing an adult offender. 34 The other case that was said to be broadly similar to the present is that of Green. The effective sentence in that case was one of nine years and nine months with an effective minimum term of seven years and three months. In his written submissions Mr Hamill contended that the conduct in Green was far less provocative than that in the present case and the attack a ferocious one. I do not consider that Green lends support to the applicant's challenge. I would not characterise the provocation in Green as being of a lesser degree than the provocation found by the Judge in this case. The killing in this case also exhibited considerable ferocity. 35 It is necessary to keep in mind that the applicant was on parole for an offence involving a stabbing at the time of the killing. This was an aggravating feature of the offence; R v Readman (1990) 47 A Crim R 181. I would reject the ground that contends that the sentence is manifestly excessive. 36 I return to the second ground of appeal that relates to the applicant's offer to plead guilty to manslaughter. During the course of the sentence hearing the Crown Prosecutor informed the Judge that in the week prior to the commencement of the trial the applicant's counsel had raised with her the prospect that his client might plead guilty to manslaughter. That offer was not accepted by the Crown. The judge referred to this circumstance saying: "The Crown, I am told rejected, apparently, a quite late offer of a plea of guilty to manslaughter and in my view the Crown is perfectly entitled to do so. I do not regard the late offer of a plea as indicative of remorse. Indeed, there are suggestions in the material that the prisoner continues to harbour some degree of self justification for his taking of the life of Mr Ferguson; nor do I find that it is appropriate to reduce or rather extend the period to be served after release on parole by way of a finding of special circumstances". (ROS 27-28). 37 In Mr Hamill's submission the Judge erred in failing to allow any discount in recognition of the applicant's offer to plead guilty to manslaughter. In his submission it was not to the point that no criticism might be levelled at the Crown for refusing the offer. He contended that it was neither just nor fair that a person whose offer to plead guilty was rejected by the Crown be placed in a less advantageous position than the person whose offer is accepted. He referred us to R v Oinonen [1999] NSWCCA 310; R v Pennisi [2001] NSWCCA 326; R v Tran [1999] NSWCCA 443 at [25] and R v Cardoso [2003] NSWCCA 15. 38 In Oinonen Grove J (in a judgment with which Spigelman CJ and Sully J concurred) observed at [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." 39 The Court in Oinonen found the trial judge to have erred in failing to allow some discount to reflect the appellant's offer to plea guilty to manslaughter. In that case Grove J made reference to the "utilitarian value of the offer of his plea". 40 In written submissions filed prior to the decision of this Court in Cardoso the Crown contended: "The Crown accepts that in respect of 'utilitarian' considerations, a rule of practice clearly seems to have emerged that courts should 'take into account the offer of a plea of guilty which matches the crime for which the person is ultimately convicted' ( Oinonen & Pennisi ). That approach has been clearly endorsed not withstanding the absence of actual utility. The concept of 'notional utility' is an inherently contradictory one and as the decisions of the court do not identify the precise basis of the discount they should be reviewed in light of Cameron (which held that the rationale for a plea discount was totally subjective, namely a willingness to facilitate the course of justice), and R v Sharma [2002] NSWCCA 142 (which resisted the totally subjective approach on the basis of the legislative provisions in NSW dealing with actual pleas). It seems clear that the basis of any discount where no plea has actually been entered must necessarily be subjective and not objective. It could be argued discounts of the magnitude of those given for objective utilitarian considerations are inappropriate when the court is confined to the subjective factor of preparedness to facilitate the administration of justice: that it is actual utility that attracts the utilitarian discount. Adopting this approach, once the basis for a discount for the offer of a plea is correctly identified as purely subjective, it would then become necessary to have regard to the motivation of the applicant and questions of self-interest may become relevant ( Sharma at [42]). It is however perhaps debatable whether such an approach is appropriate where the Crown in effect has by its rejection of the plea offer forced the applicant to plead not guilty. Why, it may be argued, should the possible discount offered to an applicant ultimately depend upon subjective considerations as a result of a possibly capricious or erroneous decision of a Crown Prosecutor in a particular case who refuses to accept a plea, especially where that decision has ultimately proved to be incorrect. If the plea was accepted in this matter, there would have been some two weeks of court time saved as well as all the other well recognised 'utilitarian' benefits." 41 This Court considered a number of the issues raised in the above submissions in Cardoso. The applicant in that case offered to plead guilty to manslaughter. The Crown rejected the offer. At trial he sought an outright acquittal relying on the Crown's inability to negative self-defence. On appeal against the severity of the sentence imposed on him following his conviction for manslaughter, Hidden J (in a judgment with which Greg James J agreed) said: "[17] The Crown Prosecutor before us challenged the reasoning in that judgment ( Oinonen ) submitting that it cannot stand with the later decision of Thomson and Houlton , recently revisited in R v Sharma (2002) 54 NSWLR 300. The affirmation by those cases of the purely utilitarian benefit of a plea of guilty, he argued, was directed only to those cases in which that benefit was realised by the entry of that plea and the avoidance or curtailment of a trial. No such benefit flows from the offer of a plea of guilty to a lesser charge which the Crown does not accept. There is no concept of 'notional utility', the argument continued, whereby the offender who is found guilty of that lesser charge is extended the leniency which he or she might have earned if that offer had been accepted and the matter had not proceeded to trial. [18] The Crown Prosecutor acknowledged that the offer of such a plea might attract leniency subjectively, as it might demonstrate remorse or, at least, a willingness to facilitate the course of justice: Cameron v The Queen (2002) 187 ALR 65, in the joint judgment at [13] – [14]. However, he observed correctly that Sharma , in which Cameron was considered, maintains a distinction between the subjective considerations raised by a plea of guilty and the utilitarian value of the plea, viewed objectively. Of course, that utilitarian value attaches to a plea of guilty to a crime less serious than that originally charged: R v Morton [1986] VR 863 at 867, cited in Sharma at [46]. "[19] Hulme J passed sentence in the present case before the High Court handed down its decision in Cameron , and the notion of a willingness to facilitate the course of justice had not yet been introduced into sentencing law. His Honour expressly took into account the applicant's remorse but he made no allowance for his offer to plead guilty to manslaughter. Here, in my respectful view, his Honour fell into error. The applicant had offered to plead guilty to a lesser charge which could fairly be justified on the available evidence and which, in the event, the jury found to be the appropriate measure of his culpability. The Crown chose not to accept that offer, a matter which was beyond the applicant's control. If the offer had been accepted, the same result would have been achieved without the necessity of a trial. [20] It is not to the point that, that offer having been rejected, the applicant chose not to plead guilty to manslaughter in the presence of the jury and raised an issue at the trial which could have led to his outright acquittal. (As it happens, self defence could now give rise to the alternative verdict of guilty of manslaughter because of subsequent amendments to the Crimes Act : see Div 3 of Pt 11 of the Act and, in particular, s 421.) A plea of guilty at that stage would not have been accepted by the Crown and the trial would have proceeded in any event. [21] Oinonen was dealing with a special situation to which no reference was made in Thomson and Houlton or Sharma , and I see no inconsistency between the reasoning in Grove J's judgment and those later important cases. If the submission of the Crown prosecutor in this Court were upheld, the measure of leniency afforded to an offender such as the applicant, prepared to plead guilty to a lesser charge fairly available on the evidence, would depend upon the Crown's attitude. This would be unacceptable." 42 In oral submissions the Crown Prosecutor directed attention to [19] of the judgment set out above. Hidden J there referred to an offer to plead guilty to a lesser charge "which could fairly be justified on the available evidence". In the Crown's submission before a discount is allowed the sentencing judge must assess whether the offer to plead guilty to the lesser offence was one fairly open to acceptance by the Crown. In some cases an offer to plead guilty to manslaughter it was submitted may not evidence a willingness to facilitate the course of justice but rather be a cynical attempt to secure a position of advantage (in the unlikely event of a conviction for manslaughter). 43 The jury's verdict determines the characterisation in law of the offender's culpability for his or her unlawful killing. In any case in which the verdict is one of guilt of manslaughter it is difficult to see how the offender's offer to plead guilty to that offence might be held to have been not fairly open to acceptance by the Crown. It is not necessary to determine the matter since the Crown Prosecutor did not press any submission that in this case the applicant's offer to plead guilty to manslaughter was not fairly open to acceptance by the Crown. (This is not to say that the Crown was not justified in refusing the offer and seeking to have the jury's verdict on the more serious count). 44 The judge does not appear to have considered that the applicant's willingness to plead guilty to manslaughter was a factor that entitled him to some discount on the sentence to be imposed. I accept, in the light of the authorities to which I have referred, that in this respect his Honour erred. In my view the Crown's challenge to the correctness of Oinonen has not been made out. 45 The exercise of the Judge's sentencing discretion having miscarried it is necessary for this Court to consider the question of sentence afresh. It does not follow from this that the appeal will necessarily succeed. This Court will only intervene and quash the sentence imposed below in a case where error has been established if it is of the opinion that, relevantly, a less severe sentence is warranted in law and should have been passed; s 6(3) of the Criminal Appeal Act 1912 and see R v Simpson [2001] NSWCCA 534. 46 In considering the question of sentence I have regard to the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 (the Act) as in force immediately before its repeal by the Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2002 (the Amendment Act); cl 45 of Sch 2 of the Act. (The applicant's conviction for the offence was recorded prior to the date of commencement of the Amendment Act). 47 I take into account the contents of two affidavits affirmed by the applicant on 28 November 2002 and 30 April 2003 and the affidavit of his solicitor to which a number of reports prepared by prison staff are annexed. The applicant has been diagnosed while in custody as a diabetic. He receives twice daily injections of insulin. He has been troubled by ulcers, boils and cellulitis. The severity of the latter led to an episode of hospitalisation. It is necessary for him to watch his diet with care and this is difficult for a person in prison. In other respects the affidavits provide confirmation of the positive reports that were before the Judge as to the applicant's good conduct in custody. He has been employed in the metal shop where he has commenced a traineeship. He has completed courses addressing both his cannabis use and gambling. 48 In assessing the objective seriousness of the offence I take into account the circumstance that the applicant went to the deceased's home and accepted his invitation to come inside for a cup of tea with the expectation that he may be the subject of a sexual advance. To my mind this demonstrates the degree of provocation to have been relatively low. As I have noted, a circumstance that aggravated the offence was that the applicant was on parole at the time of the killing. 49 Absent any discount for the offer to plead guilty to the offence of manslaughter, taking into account the matters to which I have referred above and the subjective material that was before the Judge, I am of the opinion that the appropriate sentence would be one of ten years imprisonment. I turn now to a consideration of the discount to be allowed in recognition of the applicant's offer to plead guilty. The offer was first made in the week before the trial commenced. I consider a discount at the lower end of the range propounded in R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 to be appropriate. I would discount the sentence to be imposed by a factor of ten percent. 50 I do not consider that there are special circumstances such as to justify a departure from the statutory proportion between the sentence and the term of the non-parole period for the purposes of s 44(2) of the Act. 51 For these reasons the orders that I propose are: 1. Grant leave to appeal; 2. Allow the appeal and quash the sentence imposed in the Supreme Court; 3. In lieu thereof sentence the applicant to a term of nine years imprisonment to date from 18 May 2000 and to expire on 17 May 2009. Specify a non-parole period of six years and nine months. The first date upon which the applicant will be eligible for consideration of release on parole is 17 February 2007. 52 CARRUTHERS AJ: I agree with Bell J. ******** Last Modified: 05/26/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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