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Supreme Court 30 November 2007

R v Sesoni BASHFORD

[2007] NSWSC 1380

Assault & violenceHomicide
CRIMINAL LAW SENTENCE PLEA OF GUILTY

Citation: R v Sesoni Bashford [2007] NSWSC 1380
Court: Supreme Court of New South Wales, Common Law Division
Date: 30 November 2007
Judge(s): Rothman J

Background

On 1 October 2006, the offender struck the deceased once to the left side of the face outside a pie shop in Matraville following a night of watching the NRL Grand Final. The deceased fell and struck his head on the concrete footpath. He died two days later from the resulting head injury.

The offender and the deceased had exchanged words over the course of the evening, including provocative and offensive remarks made by the deceased to both the offender's friend and, shortly before the punch, to the offender himself. After the incident, the offender was heard to say words indicating he had reacted to something the deceased said.

The offender pleaded guilty to manslaughter by unlawful and dangerous act. He was represented by the Aboriginal Legal Service. The central sentencing questions concerned how to weigh objective seriousness, the offender's personal circumstances, the provocative conduct of the deceased, and the discount for the early guilty plea.

  • Where on the spectrum of manslaughter offences this particular offence fell in terms of objective seriousness
  • Whether the deceased's verbal conduct constituted relevant provocation or mitigation for sentencing purposes
  • What discount applied for the early guilty plea
  • Whether special circumstances existed to vary the statutory non-parole period ratio
  • Whether the offender's Aboriginal background was relevant to sentencing

Decision

Rothman J found that this manslaughter fell at the lower end of the objective range for the offence. A single punch with no weapon, a spontaneous reaction to grossly offensive words, and the absence of any intention to kill or cause serious injury all pointed toward reduced, though still substantial, objective culpability. The court accepted the offender's account of what the deceased said, finding it corroborated by a witness present at the scene, by the offender's own immediate reaction, and by what the offender told his sister before the severity of the injury was apparent.

The court considered the offender's background, including his Aboriginal heritage, in accordance with the principles from R v Fernando. The offender was 27 years old, had experienced a difficult upbringing, and had a prior criminal history including violence, though none involving death. The court also found that the offender demonstrated genuine remorse, expressed to family and others after the event.

A starting point of seven years' imprisonment was adopted. A 25 percent discount was applied for the early guilty plea, the offender having pleaded as soon as practicable after the manslaughter charge was preferred. Special circumstances were found, justifying a variation to the statutory ratio between the non-parole period and the balance of term, on account of this being the offender's first lengthy custodial sentence and the rehabilitative work required upon release.

Orders Made

  • Convicted of manslaughter by unlawful and dangerous act between 1 October 2006 and 3 October 2006 at Matraville
  • Sentenced to imprisonment with a non-parole period of 3 years and 6 months, commencing 24 October 2006 and expiring 23 April 2010
  • Balance of term of 1 year and 9 months, expiring 23 January 2012
  • Eligible for release on parole on 23 April 2010

Key Takeaways

  • Manslaughter carries a maximum of 25 years' imprisonment and no standard non-parole period, reflecting the broad spectrum of conduct the offence covers. A one-punch death with no weapon and no premeditation placed this matter at the lower end of that spectrum.
  • Provocative verbal conduct by a deceased does not constitute a legal defence but may be taken into account as a mitigating factor in sentencing, particularly where the words were grossly offensive and the offender's reaction was immediate and unplanned.
  • Under the principles confirmed in R v Fernando, an offender's Aboriginal background and associated social disadvantage are matters a sentencing court may consider as part of the overall picture of the offender's circumstances.
  • The Supreme Court applied a 25 percent discount for an early guilty plea entered as soon as practicable after the charge was preferred, reflecting the utilitarian value of that plea to the justice system.
  • Special circumstances justifying variation of the statutory non-parole period ratio were established where an offender was serving a first lengthy custodial sentence and had genuine prospects of rehabilitation, provided the non-parole period remained at an appropriate level.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2), 21A(3)

Cases
- Hamieh v R [2007] NSWCCA 277
- R v Blacklidge, NSWCCA, 12 December 1995
- R v Fernando (1992) 76 A Crim R 58