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6
Court of Criminal Appeal 29 June 1999

R v Bryant

[1999] NSWCCA 181

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER CRIMINAL LAW SENTENCING SENTENCE MANIFESTLY EXCESSIVE

Citation: R v Bryant [1999] NSWCCA 181
Court: NSW Court of Criminal Appeal
Date: 29 June 1999
Judge(s): Spigelman CJ, Dunford J, Adams J

Background

The appellant was convicted by jury of manslaughter after being acquitted of murder following a fatal stabbing on 5 July 1995. The deceased suffered multiple stab wounds, including a wound approximately 180mm deep through both lungs and the pulmonary artery, and a separate wound leaving a knife embedded in his skull near his left eye. The deceased bled to death the following day.

The sentencing judge, Dowd J in the Supreme Court, imposed a total sentence of ten years, comprising a minimum term of six and a half years and an additional term of three and a half years. The sentencing judge rejected provocation as a basis for the manslaughter verdict and found the stabbing was the product of an unlawful and dangerous act.

The appellant challenged the sentence on two grounds: that the sentencing judge's reasoning was inconsistent with the jury's acquittal on the murder charge, and that the sentence was manifestly excessive.

  • Whether the sentencing judge's finding that the act of stabbing was "deliberate and voluntary" was inconsistent with the jury's verdict of not guilty of murder, contrary to the principle in Isaacs (1997) 90 A Crim R 587.
  • Whether the total sentence of ten years for manslaughter was manifestly excessive and fell outside the range of a sound exercise of sentencing discretion.

Decision

On the first ground, the Court of Criminal Appeal examined whether the sentencing judge's language impermissibly implied an intent to kill or cause grievous bodily harm, which would have been the missing element for murder. The Court drew on its earlier decision in Bollen (1998) 99 A Crim R 510, where a finding that a stabbing was "deliberate" had been reconciled with a manslaughter verdict on the basis that the act was by way of reaction only, and without specific intent to harm at the moment of infliction. The Court found that a similar reading was available here, and that the sentencing judge's reasoning was not necessarily inconsistent with the jury's acquittal.

The governing principle, confirmed in Isaacs, requires that the facts adopted for sentencing purposes must be consistent with the jury's verdict. The Court acknowledged that this may require a sentencing judge to proceed on a factual basis different from their own view of the evidence. On the facts of this case, however, the Court was not persuaded that the sentencing judge had crossed that line.

On the second ground, the Court accepted that the sentence was high, and acknowledged it appeared to sit at or near the top of the range for manslaughter offences. However, the relevant task is to determine whether the sentence falls within the permissible range of discretion, not to substitute the appellate court's preferred result. Given the objective seriousness of the attack, including multiple stab wounds and a knife left embedded in the deceased's skull, the Court was satisfied the sentence remained within that range. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's factual findings must be consistent with the jury's verdict; where a jury acquits on murder but convicts on manslaughter, the sentencing court cannot proceed on a factual basis that effectively treats the offending as murder.
  • The Court of Criminal Appeal confirmed, following Isaacs, that this constraint may require a sentencing judge to adopt a view of the facts different from their own assessment, as an inherent consequence of the jury trial system.
  • A finding that a stabbing was "deliberate and voluntary" does not automatically imply intent to kill or cause grievous bodily harm; the characterisation depends on its context within the sentencing remarks as a whole.
  • In dismissing the appeal on manifest excess, the Court applied the principle that an appellate court's role is to determine whether the sentence falls within a permissible range of discretion, not simply whether a lower sentence might have been appropriate.
  • Sentences at the upper boundary of an accepted range remain valid exercises of discretion, provided the sentencing judge has properly considered the relevant objective and subjective factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Sentencing Act 1989 (NSW)

Cases:
- Bollen (1998) 99 A Crim R 510
- De Simoni (1981) 147 CLR 583
- Isaacs (1997) 90 A Crim R 587