Citation: [2002] NSWSC 536
Court: Supreme Court of New South Wales
Date: 14 June 2002
Judge(s): Greg James J
Background
The offender pleaded guilty to the manslaughter of one person and the malicious wounding of another, plus two charges of maliciously discharging a pistol with intent to cause grievous bodily harm. All four offences arose from a single incident on 10 February 2001 at Erskine Park, when a group of approximately eight people armed with improvised weapons broke into a home intending to rob it of money or drugs.
When the robbers burst into the room where the offender and others were present, the offender produced an unregistered nine-millimetre self-loading pistol and opened fire. He shot and killed one of the intruders and wounded a second in the abdomen, then pursued the fleeing group and discharged further shots, causing minor wounds to two others. The offence of possessing an unregistered firearm (the same pistol) was dealt with on a Form 1, meaning it was taken into account in sentencing without a separate conviction being recorded.
The offender was on parole at the time of the offences and had a prior criminal record. He had initially lied to police, falsely attributing the firearm to one of the deceased robbers, though the truth subsequently emerged.
Legal Issues
- What was the appropriate head sentence and non-parole period for manslaughter committed by way of excessive self-defence?
- How much weight should be given to the firearm possession offence dealt with on Form 1?
- What discount was warranted for the offender's plea of guilty, youth, prospects for rehabilitation, and the circumstances of the precipitating attack?
- Was backdating of the sentence to the date of remand in custody appropriate?
- Did special circumstances exist justifying a departure from the standard 50% non-parole period ratio?
- How should the sentences on multiple counts be structured in light of the principle in Pearce v The Queen (1998) 194 CLR 610?
Decision
Greg James J accepted that the offender acted in genuine (though not objectively reasonable) belief that his response was necessary, given that he faced a numerically superior group of armed intruders who had broken in to rob the premises. The Crown's acceptance of a manslaughter plea on the basis of excessive self-defence was consistent with this characterisation. The court drew on Previtera (1997) 94 A Crim R 76 in considering the nature of manslaughter by excessive self-defence, and acknowledged the offender's difficult circumstances at the time of the attack.
The court found, however, that these mitigating factors did not reduce the sentence to the level submitted by defence counsel. The offences collectively constituted a serious course of criminal conduct. In particular, the court rejected the proposition that the Form 1 firearms offence warranted only minimal weight in the sentencing exercise, holding that possession of an unregistered pistol with an obliterated serial number deserved a meaningful component of the overall penalty.
On special circumstances, the court found that they existed, given the offender's youth, rehabilitation prospects and the need for a supervisory period upon release. This justified reducing the non-parole period below the standard 50% proportion, producing a ratio of three and a half years non-parole against a seven-year head sentence. The court backdated all sentences to 16 May 2001, the date the offender was taken into custody.
The sentences on counts three and four (maliciously discharging a pistol with intent) were structured as fixed terms running concurrently with the non-parole period on count one, in accordance with the principle in Pearce that concurrent sentences must nonetheless represent a realistic reflection of the total criminality involved.
Orders Made
- Count 1 (manslaughter): Seven years imprisonment commencing 16 May 2001, expiring 15 May 2008; non-parole period of three years and six months commencing 16 May 2001, expiring 15 November 2004.
- Count 2 (malicious wounding with intent): Fixed term of three years commencing 16 May 2001.
- Count 3 (maliciously discharging a pistol with intent): Fixed term of two years commencing 16 May 2001, served wholly concurrently with the non-parole period on Count 1.
- Count 4 (maliciously discharging a pistol with intent): Fixed term of two years commencing 16 May 2001, served wholly concurrently with the non-parole period on Count 1.
- Firearm possession offence taken into account on Form 1 in relation to Count 1.
Key Takeaways
- A plea of guilty to manslaughter on the basis of excessive self-defence can reflect a genuine (though objectively unreasonable) belief that lethal force was necessary, and this is a mitigating factor in sentencing, though not one that displaces the inherent gravity of the offending.
- Where a firearm offence is brought to account on a Form 1, the sentencing court must give it more than minimal weight, particularly where the weapon involved is an unregistered pistol with an obliterated serial number.
- Special circumstances sufficient to justify a non-parole period below 50% of the head sentence can be established where the offender is young, has genuine rehabilitation prospects, and requires meaningful supervision upon release.
- Under the principle in Pearce v The Queen (1998) 194 CLR 610, concurrent sentences must still aggregate to reflect the total criminality across all counts; purely nominal concurrency is insufficient.
- Backdating a sentence to the date of remand in custody is appropriate where the offender has been held on remand and the sentencing court wishes to avoid double-counting time already served.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), including s 33A
- Home Invasion (Occupants Protection) Act 1998 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Previtera (1997) 94 A Crim R 76
- Pearce v The Queen (1998) 194 CLR 610