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Supreme Court 15 December 2005

REGINA v. HAMSHERE

[2005] NSWSC 1319

Assault & violenceHomicide
CRIMINAL LAW MANSLAUGHTER PLEA OF GUILTY OFFENDER STABBED THE DECEASED DID NOT ACT WITH INTENT TO KILL OFFENDER AND DECEASED WERE FRIENDS

Citation: Regina v Hamshere [2005] NSWSC 1319
Court: Supreme Court of New South Wales
Date: 15 December 2005
Judge(s): Hall J

Background

The offender and the deceased were friends who spent the afternoon of 26 December 2004 drinking together at the offender's home in Willmot. Two other witnesses were present. What began as playful wrestling between the two men escalated into a more aggressive physical struggle, with both parties becoming visibly intoxicated.

After the deceased suggested the confrontation move outside and removed his shirt, the offender retrieved a large kitchen knife from the kitchen. Despite a witness urging him to put the knife down, the offender approached the deceased, who was standing with clenched fists. In the course of the encounter, the offender raised his right arm and the knife struck the deceased in the neck, causing a fatal wound.

The offender was originally charged with murder. On 7 October 2005, the Crown accepted a plea of guilty to manslaughter on the basis that the offender was substantially affected by alcohol and did not act with intent to kill or cause grievous bodily harm. The plea was also accepted on the basis that the offender's act was unlawful and dangerous. He had been in custody since his arrest on 26 December 2004.

  • What was the appropriate sentence for manslaughter where the offender was heavily intoxicated, lacked intent to kill, and pleaded guilty at the first available opportunity?
  • What weight should be given to mitigating factors including intoxication, contrition, rehabilitation prospects, and a guilty plea?
  • Whether special circumstances existed under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 to justify departing from the standard ratio between the non-parole period and the balance of the sentence term.

Decision

Hall J sentenced the offender to a total term of five years with a non-parole period of three years, backdated to the date of arrest on 26 December 2004. The sentence was reduced to reflect the guilty plea entered at the first opportunity, consistent with established authority requiring a discount for early pleas.

The court accepted that while the offender had misled police in his initial electronically recorded interview, he ultimately demonstrated genuine contrition. His conduct immediately after the stabbing, including attempting to apply pressure to the deceased's wound and expressing distress, was noted. Psychiatric evidence from Dr Westmore indicated good prospects of rehabilitation, particularly if the offender maintained sobriety.

Hall J found special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999, justifying a departure from the standard non-parole to balance-of-term ratio. The court identified the offender's need for extended supervision on parole and ongoing alcohol rehabilitation as the basis for that finding. The sentencing court also acknowledged the profound impact on the deceased's family, with victim impact material considered in the proceedings.

The court noted that alcohol played a central role in the offence and that the offender's cognitive and motor functions had been significantly impaired at the time. The expert evidence indicated that cessation of alcohol consumption would substantially reduce, and likely eliminate, the risk of serious reoffending.

Orders Made

  • Non-parole period of three years, commencing 26 December 2004 and expiring 25 December 2007
  • Balance of term of two years, expiring 25 December 2009 (total sentence: five years)
  • Earliest eligible parole release date: 25 December 2007
  • Recommendation to the Parole Authority that the offender be released to a residential or other suitable rehabilitation programme and attend intensive counselling for alcohol-related issues as directed by the Probation and Parole Service

Key Takeaways

  • A guilty plea entered at the first available opportunity attracted a meaningful discount in the sentence, consistent with the approach in Thomson & Houlton (2000) 49 NSWLR 383.
  • Where an offender is heavily intoxicated at the time of a fatal stabbing and the Crown accepts the absence of intent to kill, the proper sentencing basis is manslaughter rather than murder, with intoxication treated as a relevant mitigating circumstance affecting moral culpability.
  • Special circumstances under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 were established where the offender required extended parole supervision and structured alcohol rehabilitation following release.
  • Psychiatric evidence of good rehabilitation prospects, combined with genuine contrition demonstrated at the scene and in court, were significant mitigating factors weighed against the gravity of a fatal stabbing.
  • The sentencing court's recommendation that the Parole Authority consider release to a rehabilitation programme reflected expert opinion that sustained sobriety would substantially reduce the risk of future serious offending.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes Act 1900 (NSW)

Cases:
- Thomson & Houlton (2000) 49 NSWLR 383
- Hill (1981) 3 A Crim R 397
- Stephens (CCA, 15 August 1993, unreported)
- MacDonald (CCA, 12 December 1995, unreported)
- Dodd (1991) 57 A Crim R 349
- Simpson (2001) 126 A Crim R 525
- Chami [1999] NSWSC 1268
- Blacklidge (CCA, 12 December 1995, unreported)