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13
Court of Criminal Appeal 11 May 2000

Regina v Dally

[2000] NSWCCA 162

Also reported as [2000] 115 A Crim R 582
Homicide
CRIMINAL LAW SENTENCE NOT EXCESSIVE .

Citation: Regina v Dally [2000] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 11 May 2000
Judge(s): Sully J, Carruthers AJ, Smart AJ

Background

The appellant was convicted of manslaughter following the death of his flatmate, Raymond Marden, at a Redfern flat on 6 January 1997. The two men shared accommodation and had argued during the day over rent and food arrangements. That evening, following a confrontation at the flat in which the deceased pushed and pulled the appellant, the appellant stabbed the deceased once with a carving knife. The wound was fatal.

The jury acquitted the appellant of murder but found him guilty of manslaughter. The trial judge (Sperling J in the Supreme Court) had directed the jury that manslaughter could be established on either of two bases: the Crown's failure to negative provocation, or the Crown's failure to prove the specific intent required for murder while still proving a deliberate, unlawful, and dangerous act.

The appellant was sentenced to a minimum term of five years, three months and thirteen days of penal servitude, plus an additional term of two years. He appealed against both the conviction and the sentence.

  • Whether a manslaughter conviction is valid where jurors may not have agreed on the particular basis or variety of manslaughter (provocation or unlawful and dangerous act) on which the verdict rested
  • Whether the sentence imposed was manifestly excessive given the appellant's subjective circumstances

Decision

On the conviction appeal, the Court considered whether jury unanimity on the specific basis of manslaughter was required. The Court held that it was not. A jury need not agree on the precise legal pathway to a manslaughter verdict, provided all jurors are satisfied beyond reasonable doubt that the elements of manslaughter in some form have been established. This principle is consistent with the approach taken in comparable cases across Australian and English jurisdictions.

On the sentence appeal, the Court examined the sentencing judge's approach against the appellant's subjective features, which were considerable. Those features included his lack of relevant criminal history, his immediate notification of authorities, his frank admissions to police, his remorse, the unpremeditated nature of the offending, and his unlikely prospect of reoffending. However, the sentencing judge had found the objective gravity of the crime to be high, having regard to the deliberate nature of the stabbing and the lethal wound inflicted. The Court of Criminal Appeal found the sentencing judge's approach was well open on the materials and agreed with the assessment of objective seriousness.

Both the conviction appeal and the sentence appeal were therefore dismissed.

Orders Made

  • Appeal against conviction dismissed
  • Leave to appeal against sentence granted; appeal dismissed

Key Takeaways

  • A manslaughter conviction does not require the jury to agree on the specific basis or variety of manslaughter on which the verdict is founded, only that all jurors are satisfied the elements of manslaughter have been made out.
  • The Court of Criminal Appeal confirmed that different jurors may rely on different legal pathways (such as provocation or unlawful and dangerous act) without invalidating the verdict.
  • Strong subjective features, including remorse, cooperating with police, no prior serious offending, and low prospects of reoffending, do not automatically reduce a sentence where the objective seriousness of the offence is assessed as high.
  • In dismissing the sentence appeal, the Court endorsed the sentencing judge's conclusion that a deliberate fatal stabbing carries significant objective gravity even where mitigating factors are well established.
  • The case illustrates that leave to appeal against sentence may be granted even where the appeal itself ultimately fails on the merits.

Legislation and Cases Referenced

Cases Cited:
- Regina v Brown (1984) 79 CAR 115
- Regina v Giannetto (1997) 1 Cr App R 1
- Regina v Phillips (1988) 86 Cr App R 18
- Thatcher v Regina (1987) 39 DLR (4th) 275
- Regina v Gaughan (1990) Crim LR 880
- Regina v Clarke & Johnstone (1986) VR 643
- KBT v Regina (1997) 191 CLR 417
- Regina v Beach (1994) 75 A Crim R 447
- Regina v Leivers & Ballinger (1998) 101 A Crim R 185
- Regina v Bessant (Unreported NSWSC 20 May 1998)
- Regina v Isaacs (1997) 41 NSWLR 374
- Regina v Cramp (1999) NSWCCA 324

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