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31
Court of Criminal Appeal 1 June 2006

Vuni v Regina

[2006] NSWCCA 171

Homicide
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE WIDE DISCRETION OF SENTENCING JUDGE NO ERROR DEMONSTRATED.

Citation: Vuni v Regina [2006] NSWCCA 171
Court: New South Wales Court of Criminal Appeal
Date: 1 June 2006
Judge(s): Tobias JA, James J, Hoeben J

Background

The appellant was tried in the Supreme Court at Orange before Studdert J and a jury on charges of aggravated break, enter and steal, and murder. The jury acquitted him of both counts as charged but returned a verdict of guilty of manslaughter, finding that he had acted in excessive self-defence when he deliberately shot the deceased once in the head with a .357 Ruger Magnum pistol.

The factual background was significant. The deceased had repeatedly attended the appellant's home in the weeks before the shooting, had threatened to kill him, and had previously produced and loaded a firearm in front of him. On the day of the shooting, the deceased came to the appellant's unit while family members, including young children, were present. Studdert J found, however, that when the fatal shot was fired, the deceased was standing at the front door with both hands resting casually on the door and a child's stroller, holding no weapon.

Studdert J sentenced the appellant to imprisonment with a non-parole period of seven years and six months and a balance of term of two years and six months. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal, contending it was manifestly excessive.

  • Whether the sentence of seven years and six months non-parole period was manifestly excessive for manslaughter arising from excessive self-defence.
  • Whether comparisons with sentences imposed in other excessive self-defence manslaughter cases established that the sentencing judge erred.
  • Whether the sentencing judge correctly assessed the objective seriousness of the offence in the circumstances.

Decision

Hoeben J (with whom Tobias JA and James J agreed) dismissed the appeal. The Court found that Studdert J had correctly identified the objective seriousness of the offence. The deceased had been shot deliberately, with intent to kill, and without any prior warning, at a time when he was standing at the doorway holding no weapon and presenting no immediate threat. Although the jury accepted the appellant genuinely believed defensive action was necessary, the sentencing judge rightly found that belief did not make the response reasonable.

On the question of comparative sentences, the Court noted a fundamental limitation: only a small number of cases involving excessive self-defence manslaughter had come before the courts, and most of those had followed pleas of guilty rather than a contested trial. The statistical sample was too small to be of practical value in establishing an appropriate sentencing range, a point consistent with earlier authority in R v Blacklidge and R v Forbes.

The Court applied the established appellate standard that a sentence is manifestly excessive only if it is unreasonable or plainly unjust. The Court of Criminal Appeal may not simply substitute its own view for that of the sentencing judge merely because it might have exercised the discretion differently. No error in the exercise of Studdert J's substantial sentencing discretion was demonstrated, and the sentence could not be shown to fall outside the proper range.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence will only be set aside as manifestly excessive where it is shown to be unreasonable or plainly unjust; a mere difference in view between the appellate court and the sentencing judge is insufficient.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the wide discretion afforded to sentencing judges must be respected, provided the sentence is consistent with proper principle and approach.
  • Where the category of offence has produced only a small number of decided cases, comparative sentencing statistics carry limited weight; this principle applies with particular force to manslaughter arising from excessive self-defence.
  • The distinction between a genuine subjective belief that defensive force was necessary and the reasonableness of the response remains relevant to the objective assessment of seriousness at sentencing.
  • No error was established simply because most comparable cases had involved pleas of guilty rather than a trial verdict; the sentencing judge was entitled to take the contested trial into account in assessing the sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Dinsdale (2000) 202 CLR 321
- Markarian v The Queen [2005] HCA 25
- R v Blacklidge (unreported, NSW CCA, 12 December 1995)
- R v Cioban [2003] NSWCCA 304
- R v Dodd (1991) 57 A Crim R 349
- R v Forbes [2005] NSWCCA 377
- R v Hill (1981) 3 A Crim R 397
- R v Hoerler (2004) 147 A Crim R 520
- R v Previtera (1997) 94 A Crim R 76
- R v Trevenna (2003) 149 A Crim R 505
- R v Weinman (1987) 49 SASR 248
- R v Wickham [2004] NSWCCA 193