Citation: R v Cioban [2002] NSWSC 972
Court: Supreme Court of New South Wales (Common Law Division, Criminal List)
Date: 18 October 2002
Judge(s): Studdert J
Background
The prisoner, Gheorghe Cioban, faced two counts on indictment: murder of Samuel Ekevati and malicious discharge of a firearm with intent to cause grievous bodily harm, both arising from events in the early hours of 6 January 2000 in Darlinghurst Road, Kings Cross. After a fourteen-day trial, the jury acquitted him of murder but convicted him of manslaughter on the first count, and convicted him as charged on the second count.
The events began at the Hampton Court Hotel, where the prisoner and a companion had been drinking alongside the deceased and a group of four or five other men. An altercation resulted in the prisoner and his companion being asked to leave, after which they were followed outside. A street fight then developed, during which evidence indicated the prisoner produced a firearm, fired a warning shot into the footpath, and later shot the deceased at close quarters during a struggle in a doorway. The deceased died from the gunshot wound.
At sentencing, the court considered witness accounts describing the deceased pursuing the prisoner after he drew and fired the gun, culminating in the fatal shot when the two men were in physical contact near an alleyway doorway.
Legal Issues
- Whether the prisoner's conduct amounted to a reasonable response in self-defence, and to what degree any belief in the need for self-defence reduced his culpability for manslaughter
- The appropriate sentence for manslaughter where a weapon was used against an unarmed person and where the response, even taking the offender's perception of events at face value, was unreasonable under s 421(2) of the Crimes Act
- The appropriate sentence for the separate offence of malicious discharge of a firearm with intent to cause grievous bodily harm under s 33A(1) of the Crimes Act
- How to structure the two sentences, having regard to the principle of totality and the requirements established in Pearce v The Queen, given the offences occurred in close proximity to one another
Decision
Studdert J accepted that the jury's verdict implicitly recognised the prisoner held a belief that his actions were necessary for self-defence. However, his Honour found that this belief did not, on the facts, reduce culpability to a minimal level. The prisoner had acted deliberately and recklessly, and his conduct was not a reasonable response even in the circumstances as he perceived them. The court was required to treat this as falling outside the protection of s 421(2) of the Crimes Act.
In assessing the objective gravity of the manslaughter, the court noted the prisoner had used a firearm against a person who was unarmed. His Honour acknowledged that reviewing comparable sentences in detail was of limited utility, given that each manslaughter sentence turns heavily on its own facts, whether the case involves voluntary or involuntary manslaughter.
The court identified several favourable subjective factors, but balanced these against the reality that a human life had been taken and that the unlawful use of firearms cannot be tolerated. Studdert J emphasised the need to reflect retribution, denunciation, and both specific and general deterrence in the sentences imposed.
For the two offences, the court applied the totality principle as directed by Pearce v The Queen, structuring the sentences so that they ran partly concurrently and partly cumulatively to reflect the closeness in time of the two offences while avoiding a disproportionate overall term.
Orders Made
- For the s 33A(1) Crimes Act offence (malicious discharge of firearm with intent to cause grievous bodily harm): a fixed term of 18 months imprisonment, commencing 17 June 2002 (the date the prisoner was first taken into custody); no non-parole period was set for this sentence given the concurrent manslaughter sentence
- For manslaughter: a term of 8 years imprisonment commencing 17 June 2003 and expiring 16 June 2011, with a non-parole period of 5 years commencing 17 June 2003
- Earliest date of eligibility for release on parole: 16 June 2008
Key Takeaways
- A subjective belief in the necessity of self-defence is a relevant mitigating factor in manslaughter sentencing, but it does not reduce culpability where the response was objectively unreasonable even on the offender's own version of events, as s 421(2) of the Crimes Act requires.
- Where death results from the use of a firearm against an unarmed person, the objective gravity of the manslaughter remains substantial, and sentences must adequately reflect retribution, denunciation, and general deterrence.
- Under Pearce v The Queen (1998) 194 CLR 610, a court sentencing for two offences arising from closely related conduct must apply the totality principle, and may structure sentences as partly concurrent and partly cumulative to achieve a proportionate overall term.
- Comparing sentences across manslaughter cases was treated by the Supreme Court as a limited exercise, given the extent to which the appropriate sentence in any manslaughter case depends on its particular facts and circumstances.
- General deterrence in cases involving unlawful firearm use carries significant weight at sentencing; the court made clear that such conduct simply cannot be tolerated in the community.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 33A(1) (malicious discharge of firearm with intent to cause grievous bodily harm)
- Crimes Act (NSW), s 421(2) (self-defence: unreasonable response)
- Crimes (Sentencing Procedure) Act (NSW)
- Sentencing Act (NSW)
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Isaacs (1997) 41 NSWLR 374
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- R v Troja (unreported, NSWCCA, 16 July 1991)
- R v Morabito (1992) 62 A Crim R 82
- R v Alexander (unreported, NSWCCA, 24 February 1995)
- R v Maguire (unreported, NSWCCA, 30 August 1995)
- R v Papandrea [1997] NSWSC 978; [2000] NSWCCA 499
- R v Dodd (1991) 57 A Crim R 349