Citation: R v Imbrisak [2006] NSWSC 1382
Court: Supreme Court of New South Wales, Common Law Division
Date: 14 December 2006
Judge(s): Hidden J
Background
The offender pleaded guilty to three charges arising from two separate incidents in late 2003. The first was the murder of a man in Darlinghurst on 30 November 2003, committed in the early hours of the morning following a street encounter. The second incident, on 17 December 2003 at a Marrickville unit, gave rise to charges of manslaughter and malicious wounding involving a father and his adult daughter.
In the first incident, the offender stabbed the deceased multiple times in the head and neck, severing major arteries and causing death from blood loss within approximately twenty minutes. In the second incident, the offender had a history of unrequited romantic interest in the daughter and had visited the family home repeatedly. An altercation broke out between the offender and the father; the father was ultimately stabbed multiple times and died in hospital two days later from haemorrhaging caused by wounds to the head and neck. During the same struggle, the offender stabbed the daughter, causing injuries to her ear and finger that required surgery.
The Crown accepted a plea to manslaughter for the father's death on the basis of excessive self-defence. The offender conceded that, while he believed force was necessary to defend himself, his response was not objectively reasonable in the circumstances as he perceived them. The plea to malicious wounding was accepted in satisfaction of the original charge of wounding with intent to cause grievous bodily harm.
Legal Issues
- What sentences were appropriate for murder, manslaughter through excessive self-defence, and malicious wounding, taking into account the separate incidents and the pleas of guilty?
- Whether special circumstances existed to justify departing from the standard statutory ratio between the non-parole period and the head sentence for the murder charge.
- How to structure the sentences for the three offences, including the extent to which they should be accumulated rather than served concurrently, while achieving an outcome consistent with the totality principle.
- Whether non-parole periods should be set for the manslaughter and malicious wounding sentences given the partial accumulation of the murder sentence.
Decision
Hidden J determined that pleas of guilty warranted a 15 per cent reduction from the sentences that would otherwise have been imposed. The starting points were 22 years for murder, 8 years for manslaughter, and 3 years for malicious wounding. After applying the discount, these became 18 and a half years, 7 years, and 2 and a half years respectively.
On the question of accumulation, His Honour applied the totality principle and ordered the murder sentence to commence partially accumulated on the Bognar sentences, rather than running fully concurrently or fully consecutively. Because of this structure, no non-parole periods were set for the manslaughter or malicious wounding sentences; those were instead fixed-term sentences, with the murder sentence (which carried a non-parole period) commencing partway through them.
Special circumstances were found in relation to the murder sentence, by reason of the accumulation and certain aspects of the offender's personal circumstances. However, the court emphasised that any departure from the standard statutory proportion had to be modest, given that the non-parole period for murder must itself reflect the gravity of that offence and the effective overall non-parole period must adequately mark the total criminality involved.
The structure of the sentences resulted in an overall period of imprisonment of 23 years, commencing on 17 December 2003 and expiring on 16 December 2026, with the offender eligible for parole after 18 years.
Orders Made
- Manslaughter (Csaba Bognar): Fixed term of 7 years from 17 December 2003, expiring 16 December 2010. No non-parole period set.
- Malicious wounding (Bernadette Bognar): Fixed term of 2 and a half years from 17 December 2003, expiring 16 June 2006. No non-parole period set.
- Murder (Lei Zainal): Total sentence of 18 and a half years, comprising a non-parole period of 13 and a half years commencing 17 June 2008 and expiring 16 December 2021, and a balance of term of 5 years expiring 16 December 2026.
- Overall effective sentence: 23 years from 17 December 2003, with parole eligibility from 16 December 2021.
Key Takeaways
- Where multiple serious offences arise from separate incidents, the totality principle requires the court to structure accumulated sentences so the overall result reflects the full criminality without producing a crushing or disproportionate outcome.
- Partial accumulation of sentences, rather than full concurrency or full consecutiveness, is an available mechanism to achieve an outcome consistent with totality across separate criminal incidents.
- A finding of special circumstances to adjust the non-parole-to-head-sentence ratio in a murder sentence must still result in a non-parole period that independently reflects the gravity of that offence; any departure from the standard statutory proportion should be modest.
- Where a murder sentence is partially accumulated on fixed-term sentences for other offences, the Supreme Court may decline to set non-parole periods for those other sentences, treating the effective non-parole period across the total sentence structure as sufficient.
- Pleas of guilty attracted a 15 per cent discount on the notional head sentences, consistent with the approach taken in cases such as R v Way (2004) 60 NSWLR 168.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1990 (NSW), s 421 (manslaughter by excessive self-defence)
Cases:
- R v Engert (1995) 84 A Crim R 67
- R v Way (2004) 60 NSWLR 168
- R v AJP (2004) 150 A Crim R 575