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Supreme Court 17 December 1999

R v Howard

[1999] NSWSC 1228

Homicide
CRIMINAL LAW & PROCEDURE SENTENCING MANSLAUGHTER PROVOCATION

Citation: R v Howard [1999] NSWSC 1228
Court: Supreme Court of New South Wales
Date: 17 December 1999
Judge(s): Bell J

Background

The prisoner, a man aged 31, was charged with the murder of a neighbour and former friend at a unit block in Greenacre on 15 November 1997. The relationship between the two men had deteriorated over several months following disputes involving a pawned guitar, an unpaid debt, and the treatment of the deceased's younger brother, who had moved in with the prisoner.

On the night of the offence, the deceased forced his way into the prisoner's unit and made threats to both the prisoner and a third person present. After the immediate confrontation appeared to subside, the prisoner went to his kitchen, retrieved a carving knife, and stabbed the deceased twice. One wound penetrated to 14.5 centimetres and severed the aorta, proving fatal.

The prisoner fled the scene in apparent distress and was arrested at his father's home. He had previously offered to plead guilty to manslaughter before trial, but the Crown declined that offer and proceeded with a murder indictment. The jury returned a verdict of guilty of manslaughter.

  • What was the appropriate sentence for manslaughter, where culpability for murder was reduced by provocation?
  • What weight should be given to the prisoner's prior offer to plead guilty to manslaughter, given the Crown's refusal to accept that plea?
  • Whether the prisoner's remorse, good character, and rehabilitation prospects warranted some leniency, balanced against the inherent seriousness of an unlawful killing?
  • Whether special circumstances existed justifying a departure from the statutory proportion between the minimum and additional terms under the Sentencing Act 1989.

Decision

Bell J accepted the defence submission that the proper basis for sentencing was manslaughter reduced from murder by provocation, rather than manslaughter on the basis of an unlawful and dangerous act. The deceased had forced entry into the prisoner's home, made explicit threats, and the prisoner had been under accumulated stress over several months. Her Honour treated these as relevant contextual matters in assessing the degree of provocation.

The prisoner's prior offer to plead guilty to manslaughter was taken into account as a mitigating factor. Consistent with the Court of Criminal Appeal's observations in R v Oinonen, her Honour credited the offer both as evidence of genuine contrition and for utilitarian reasons, noting that the prisoner was entitled to a sentencing benefit even though the plea was not ultimately entered.

A number of subjective factors weighed in the prisoner's favour: good character (with one minor childhood conviction disregarded), a stable employment history, family support, demonstrated remorse, and good prospects of rehabilitation. However, her Honour emphasised, citing R v Macdonald, that any sentence must still reflect the inherent gravity of the unlawful taking of a human life.

No special circumstances were found to justify departing from the standard proportion between minimum and additional terms set out in section 5(2) of the Sentencing Act 1989. Full credit was given for 38 days of pre-sentence custody already served.

Orders Made

  • Minimum term of five years penal servitude, commencing 10 December 1999 and expiring 2 November 2004 (reduced by 38 days to reflect pre-sentence custody)
  • Additional term of one year and six months, commencing 3 November 2004 and expiring 2 May 2006

Key Takeaways

  • A timely offer to plead guilty to manslaughter, made before trial even where the Crown declines it and proceeds with a murder indictment, can attract a sentencing benefit for both the contrition it evidences and utilitarian considerations.
  • Where a jury returns a manslaughter verdict, the sentencing court is required to identify the proper basis for the reduction from murder, as this affects the assessment of culpability; here, provocation was the accepted basis.
  • Under section 5(2) of the Sentencing Act 1989, a departure from the standard proportion between minimum and additional terms requires a finding of special circumstances; the absence of such circumstances will result in the standard proportion being applied.
  • Notwithstanding favourable subjective factors including good character, genuine remorse, and rehabilitation prospects, sentencing for manslaughter must still reflect the fundamental seriousness of an unlawful killing, consistent with the Court of Criminal Appeal's position in R v Macdonald.
  • A victim impact statement tendered at sentence is to be received and treated in accordance with the principles in R v Previtera, including the limitations on the use to which such statements may be put.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), s 23C(3)
- Sentencing Act 1989 (NSW), s 5(2)

Cases:
- R v Previtera (1997) 94 A Crim R 76
- R v Oinonen [1999] NSW CCA 310
- R v Macdonald (unreported, NSW CCA, 12 December 1995)