Citation: Regina v Dimond [2000] NSWSC 1212
Court: Supreme Court of New South Wales (Criminal Division)
Date: 18 December 2000
Judge(s): Badgery-Parker AJ
Background
In the early hours of 6 March 1999, in the town of Harden, New South Wales, the offender stabbed Samuel Charles Dyball with a steak knife, killing him at the scene. The incident followed a confrontation in which members of a group outside a late-night shop had taken and taunted the offender with his T-shirt and cap, holding the items out of his reach. The offender, who had been drinking heavily that evening, walked away humiliated before returning with a concealed knife.
After leaving the scene, the offender went to a nearby house and deliberately selected a sharp steak knife from a kitchen drawer. He concealed the blade along the inside of his forearm as he walked back to confront the group. Upon arrival, he asked who had taken his belongings, and when Dyball identified himself and replied dismissively, the offender plunged the knife into Dyball's chest.
The offender was charged with murder. He pleaded not guilty to murder but guilty to manslaughter. The jury returned a verdict of manslaughter, accepting the partial defence of provocation. He was acquitted on a separate charge of using an offensive weapon with intent to wound another bystander, Benjamin Irving, who had sustained a stab wound to the arm during the incident.
Legal Issues
- What was the appropriate sentence for manslaughter by provocation, having regard to the circumstances of the offence and the offender's personal background?
- What weight should be given to the offender's youth, intoxication, remorse, and prospects for rehabilitation?
- How should the non-parole period be structured relative to the total sentence?
- Whether victim impact statements were a permissible factor in determining the sentence.
Decision
Badgery-Parker AJ identified the level of provocation as real but qualified. The taunting and withholding of the offender's belongings constituted genuine provocation, and the court accepted that the offender acted in a state of anger and wounded pride. However, the provocation was significantly diminished by the offender's deliberate conduct in fetching a weapon, concealing it, and returning to the scene with the clear intention of confrontation. The interval between the provocation and the stabbing allowed for reflection, and the offender's actions in that interval demonstrated premeditation rather than a spontaneous loss of control.
The court took into account the offender's youth (he was in his early twenties), his heavy intoxication on the night, his prior good character, and evidence of genuine remorse. Psychiatric evidence indicated the offender had a significant alcohol problem, and the court noted the importance of supervision on release to support abstinence. These mitigating factors moderated the sentence, though the court emphasised the inherent seriousness of any offence involving deliberate lethal violence.
On the question of victim impact statements, the court confirmed that it was not appropriate to take such materials into account in fixing the sentence. The court acknowledged the profound impact of the death on the Dyball family and expressed its sympathy, but held that the seriousness of the offence was already a weighty sentencing consideration that did not require amplification through victim impact evidence.
The non-parole period was set at three-quarters of the total sentence, reflecting the need for a meaningful period of supervised release given the offender's alcohol dependency, without inflating the head sentence merely to produce a longer parole period.
Orders Made
- The offender was sentenced to six years imprisonment for manslaughter, commencing 6 March 1999 and expiring 5 March 2005.
- A non-parole period of four years and six months was fixed, commencing 6 March 1999 and expiring 5 September 2003, being the earliest date of eligibility for release on parole.
Key Takeaways
- Where an offender returns to a scene of provocation after a deliberate interval spent arming themselves, the provocation defence to murder may still succeed, but the circumstances significantly reduce the weight given to provocation at the sentencing stage.
- Manslaughter by provocation does not carry a fixed sentencing range; the sentence must reflect the specific gravity of the provocation, the offender's conduct before and after the act, and their personal circumstances.
- Victim impact statements are not a permissible factor in fixing the quantum of a sentence in New South Wales, even where the loss suffered by the victim's family is plainly serious and deeply felt.
- The non-parole period need not be artificially compressed or extended solely to produce a particular additional term; setting it at three-quarters of the head sentence was appropriate where the circumstances called for meaningful post-release supervision.
- Intoxication, youth, remorse, and prior good character each operated as mitigating considerations, but none displaced the fundamental seriousness of a deliberate lethal stabbing following a calculated return to the scene.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW)
- Crimes (Sentencing Procedure) Act (NSW)
Cases:
- R v Kenney (1983) VR 470
- R v Tumanako (1992) 64 A Crim R 148
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- R v Alexander (1995) 78 A Crim R 141
- R v Underhill (unreported, NSWCCA, 9 May 1986)
- R v Pham (1991) 55 A Crim R 128
- R v Moffitt (1990) 47 A Crim R 444; 20 NSWLR 114