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31
Court of Criminal Appeal 4 March 2004

R v Trevenna

[2004] NSWCCA 43

Also reported as (2004) 149 A Crim R 505
Homicide
SENTENCE CROWN APPEAL TO INCREASE SENTENCE WHETHER SENTENCE MANIFESTLY INADEQUATE PLEA OF MANSLAUGHTER ACCEPTED RESPONDENT'S APPEAL AGAINST SENTENCE RANGE OF LIKE

Citation: R v Trevenna [2004] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 4 March 2004
Judge(s): Santow JA; James J; Barr J

Background

The respondent, Leeanne Trevenna, was originally charged with the murder of Terry Robert O'Brien, alleged to have occurred on 1 July 2000 at Sutherland, NSW. After the matter proceeded to trial, the Crown accepted a plea of guilty to manslaughter in full satisfaction of the murder indictment. The plea was entered under s 421 of the Crimes Act 1900, which applies where a person uses force involving the intentional or reckless infliction of death that is not a reasonable response in the circumstances, but which the person believed was necessary to defend themselves or another from an imminent threat.

The trial judge, Buddin J, sentenced the respondent on 29 May 2003 to a head sentence of seven and a half years imprisonment, with a non-parole period of four and a half years. Both sentences commenced on 7 December 2000. Special circumstances were found on the basis that this was the respondent's first term of imprisonment, and a discount was applied for the guilty plea, though the plea was not regarded as timely.

Two appeals followed. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), arguing the sentence was manifestly inadequate. The respondent, granted leave to appeal out of time, cross-appealed on the ground that the sentence was manifestly excessive, relying substantially on the lower sentence substituted on appeal in R v Cioban [2003] NSWCCA 304.

  • Whether the sentence imposed by Buddin J was manifestly inadequate, warranting intervention on the Crown's appeal
  • Whether the sentence was manifestly excessive, warranting intervention on the respondent's cross-appeal
  • How to apply the sentencing principles under s 421 of the Crimes Act 1900 (excessive force in self-defence inflicting death), a provision then only recently in force and with limited sentencing precedent
  • What weight should be given to mitigating factors including the respondent's first custodial sentence, her guilty plea, remorse, and the circumstances of the offending
  • Whether the range of comparable manslaughter sentences provided sufficient guidance for appellate review

Decision

The Court dismissed the Crown's appeal. The Court found the sentence was not manifestly inadequate and that the trial judge had properly applied the relevant sentencing principles. Although the provision under s 421 was relatively new and comparable cases were scarce, the Court conducted a review of analogous manslaughter decisions, both under the new statutory framework and under the prior common law position, and concluded that the sentence fell within an acceptable range.

The Court also dismissed the respondent's cross-appeal, by majority. While the respondent argued that the sentence was disproportionately heavy when compared to the reduced sentence substituted in Cioban, the majority found the comparison did not establish manifest excess. The Court took account of factors favouring leniency in the respondent's case, including the spontaneous nature of her actions, some element of provocation, her belief (albeit unreasonable) that force was necessary to defend herself against an imminent threat to her life, her guilty plea, remorse, and the finding of special circumstances. However, those factors were not sufficient to bring the sentence outside the permissible range.

The sentencing judge had acknowledged both the strength of the Crown's evidence and the possibility that a jury might have acquitted the respondent entirely on self-defence grounds, a consideration that warranted a further discount on the plea. The Court of Criminal Appeal found no error in the approach taken at first instance in weighing those competing considerations.

Orders Made

  • Crown appeal to increase the sentence: dismissed
  • Respondent's cross-appeal against the sentence: dismissed (by majority)

Key Takeaways

  • Section 421 of the Crimes Act 1900 creates a partial defence to murder: where excessive force is used that inflicts death, and the person believed (though unreasonably) that force was necessary for self-defence, the appropriate verdict is manslaughter rather than murder.
  • At the time of this decision, s 421 had been in force for only approximately two years, and the Court of Criminal Appeal acknowledged a genuine paucity of sentencing precedent directly under the provision, making reference to analogous common law cases necessary.
  • In dismissing both appeals, the Court affirmed that a sentence may survive challenge from both directions, that is, it may be neither manifestly inadequate nor manifestly excessive, even where comparable cases are limited and the sentencing exercise involves significant discretion.
  • A guilty plea entered at the commencement of a lengthy trial, even if not regarded as timely, may still warrant a discount where it facilitates the course of justice and where there was a realistic prospect of acquittal on self-defence grounds.
  • Comparable sentences from other jurisdictions and analogous factual circumstances can inform the sentencing range for manslaughter under s 421, particularly where domestic precedent under the specific statutory provision remains sparse.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 19A, 24, 316, 418, 419, 420, 421
- Crimes Amendment (Self Defence) Act 2001 (NSW): Part 11, Division 3
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 44
- Criminal Appeal Act 1912 (NSW): s 5D

Cases
- R v Cioban [2003] NSWCCA 304; [2002] NSWSC 972
- R v Thomson & Houlton (2000) 49 NSWLR 383
- R v Azar (1991) 56 A Crim R 414
- R v Blacklidge (CCA, unreported, 12 December 1995)
- R v Allpass (1993) 72 A Crim R 561
- R v Speechley (2002) 133 A Crim R 26
- R v Turkman (2002) 133 A Crim R 328
- R v O'Donnell [2002] SASC 183
- R v Duke [2000] SASC 254
- R v Gazdovic [2002] VSC 588
- Wong v The Queen (2001) 207 CLR 584
- Pearce v The Queen (1998) 194 CLR 610
- Dinsdale v The Queen (2000) 202 CLR 321
- Zecevic v DPP (Vic) (1987) 162 CLR 645
- Wilson v The Queen (1991-1992) 174 CLR 313
- R v Viro (1978) 141 CLR 88
- R v Isaacs (1997) 41 NSWLR 374
- R v Baker [2000] NSWCCA 85
- R v Scott [2003] NSWSC 627
- R v Nguyen [2002] NSWSC 536
- R v Morgan (1993) 70 A Crim R 368
- R v Grenenger [1999] NSWSC 380