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Court of Criminal Appeal 13 November 2008

STEPHENSON v R

[2008] NSWCCA 266

Assault & violenceHomicideDomestic & family violence
SENTENCE MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT DOMESTIC ARGUMENT PUNCHES TO HEAD

Citation: Stephenson v R [2008] NSWCCA 266
Court: New South Wales Court of Criminal Appeal
Date: 13 November 2008
Judge(s): Bell JA, Blanch J, Hall J

Background

The applicant pleaded guilty before Hidden J in the Supreme Court to the manslaughter of his long-term partner. The Crown accepted that plea in discharge of a murder indictment. The killing occurred in the early hours of 25 February 2006, following an evening of alcohol, amphetamine, and cannabis use, when a jealousy-fuelled verbal argument escalated and the applicant punched the deceased several times to the head with a closed fist. She lost consciousness and later died in hospital from a traumatic basal subarachnoid haemorrhage.

Hidden J sentenced the applicant to a non-parole period of three and a half years, with a balance of term of two years and six months, for a total head sentence of six years. The sentencing judge found the assault was spontaneous and brief, that the applicant was significantly affected by substances at the time, and that he had been genuinely remorseful from the moment he called emergency services.

The applicant sought leave to appeal out of time, arguing the sentence was manifestly excessive. Leave to extend time was not opposed and was granted.

  • Whether the total sentence and the non-parole period were manifestly excessive for manslaughter by unlawful and dangerous act in these circumstances.
  • Whether the sentencing judge failed to give adequate weight to the applicant's subjective case, including his plea of guilty, remorse, good character, and lack of prior violence.

Decision

Bell JA (with Blanch J and Hall J agreeing) dismissed the appeal. The Court found no error in the sentence imposed by Hidden J.

The sentencing judge had correctly characterised the offence as manslaughter by unlawful and dangerous act, carried out without intent to kill or cause grievous bodily harm. The assault was spontaneous and arose from a volatile, jealousy-driven relationship. The applicant's intoxication explained, but did not excuse, his conduct. His Honour had taken proper account of the applicant's remorse, his plea of guilty, his absence of prior violence, steady employment history, and the strong subjective case assembled through character evidence from family and his former partner.

The Court reviewed comparable sentencing decisions, including cases where single punches caused death and where offenders of good character received non-parole periods of three and a half years. None of the comparative cases supported a finding of manifest excess on the present facts. The Court also cited the High Court's reminder in Markarian v The Queen that sentencing is a discretionary exercise, that there is no single correct sentence, and that judges must be allowed appropriate flexibility within the applicable statutory regime.

The challenge to manifest excess could not be sustained, and the sentence was allowed to stand.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence of three and a half years' non-parole period (with a balance of two and a half years) for manslaughter by unlawful and dangerous act involving repeated punches to the head was not manifestly excessive, even where the offender had no prior violence, demonstrated genuine remorse, and pleaded guilty.
  • A strong subjective case, including good character evidence, absence of prior violence, and early admissions to police, does not automatically render a sentence outside the acceptable range for a fatal assault of this nature.
  • Manslaughter sentences are highly fact-specific. As the Court reaffirmed, the variety of circumstances and degrees of culpability across manslaughter cases makes it impossible to point to any single established tariff.
  • Voluntary intoxication through alcohol and drugs at the time of a fatal assault may provide some explanation for an offender's actions, but does not reduce culpability to any significant extent at sentence.
  • In dismissing the appeal, the Court applied the principle from Markarian v The Queen that sentencing courts retain broad discretion, and an appellate court will not intervene merely because a different result might have been open.

Legislation and Cases Referenced

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

Cases:
- KT v R [2008] NSWCCA 51
- Markarian v The Queen [2005] HCA 25; 328 CLR 357
- R v Dodd (1991) 57 A Crim R 349
- R v Ellis (1986) 6 NSWLR 603
- R v Forbes [2005] NSWCCA 377
- R v Gallagher (1991) 23 NSWLR 220
- R v O'Hare [2003] NSWSC 652
- R v Risteski [1999] NSWSC 1248