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12
Court of Criminal Appeal 18 May 1999

R v GREEN

[1999] NSWCCA 97

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER

Citation: R v Green [1999] NSWCCA 97
Court: New South Wales Court of Criminal Appeal
Date: 18 May 1999
Judge(s): Barr J, Greg James J, Carruthers AJ

Background

The applicant, a man aged 22 at the time of the offence, was convicted by a jury of the manslaughter of a close friend following a night of drinking at the deceased's home in Mudgee in May 1993. The applicant's account was that the deceased entered his bedroom and made unwanted sexual advances, prompting a violent response during which the applicant struck the deceased repeatedly with his fists and stabbed him ten times in the back with poultry shears. The injuries were catastrophic and the forensic evidence described the attack as ferocious.

The case proceeded on the basis of provocation manslaughter. The sentencing judge in the Supreme Court noted the applicant's difficult background, including childhood exposure to domestic violence and his father's sexual assault of his sisters, factors the applicant linked to his reaction to the deceased's conduct.

The trial judge imposed a sentence of ten years and six months penal servitude, comprising a minimum term of eight years commencing 20 May 1993 and an additional term of two years six months. The applicant sought leave to appeal, arguing the sentence was excessive.

  • Whether the sentencing judge had failed to take into account the time elapsed between the provocative act and the applicant's violent response, a recognised consideration in provocation manslaughter cases.
  • Whether the sentence of ten years and six months was manifestly excessive, in that it fell outside the proper range available to the sentencing judge.

Decision

On the first ground, the Court found no error. The sentencing judge had expressly referred to the relevant sentencing framework for provocation manslaughter cases, which identifies three matters: the degree of provocation, the time between the provocation and the loss of self-control, and the degree of violence displayed. The judge's findings indicated that the applicant's response followed almost immediately upon the provocation, and any omission in express treatment of the timing element was immaterial given those findings.

On the second ground, the Court surveyed comparable cases and concluded that the sentence was within the available range. The Court acknowledged the significant mitigating features, including the applicant's difficult background, the provocative conduct of the deceased, and the applicant's prompt surrender to police. It weighed those against the gravity of the violence inflicted, the applicant's prior criminal history, and the need for the sentence to reflect the seriousness of the offending.

Greg James J added a note on the standard for appellate intervention in sentencing. He observed that his own view of the appropriate sentence was not the relevant test. An appeal court intervenes only when a sentence falls outside the range that properly balances all relevant considerations. He endorsed the principle that pressing a dissenting personal view, once colleagues have not been persuaded, would be inappropriate.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In provocation manslaughter sentencing, three recognised considerations apply: the degree of provocation, the time elapsed between the provocation and the response, and the degree of violence used. A failure to address one expressly may not constitute error where the findings implicitly address it.
  • The Court of Criminal Appeal confirmed that appellate intervention in sentencing is warranted only when the sentence falls outside the range of the sentencing judge's proper discretion, not merely because the appellate bench might have imposed a different sentence.
  • Greg James J explicitly acknowledged that he may personally have sentenced differently, but held that personal disagreement does not justify appellate intervention absent a conclusion that the sentence exceeded the available range.
  • Upholding the sentence, the Court treated the extreme ferocity of the violence as a significant factor justifying a substantial term, even where provocation and personal background provided meaningful mitigation.
  • A prior criminal history, including prior assault convictions, remained a relevant consideration in assessing an appropriate sentence even where the principal sentencing task concerned a manslaughter conviction founded on provocation.

Legislation and Cases Referenced

Cases Cited:
- R v Alexander (1994) 78 A Crim R 141
- R v Morabito (1992) 62 A Crim R 82
- R v Panozzo, Court of Criminal Appeal, 25 March 1993 (unreported)
- R v Pavia, Court of Criminal Appeal, 9 December 1994 (unreported)
- R v Isaacs (1997) 90 A Crim R 587
- Buckley & Anor v Bennell Design & Constructions Pty Limited & Anor [1977] 1 NSWLR 110

Legislation: No specific legislation was cited in the provided text.