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Supreme Court 6 June 2008

R v Stewart

[2008] NSWSC 563

HomicideFirearms & weapons
CRIMINAL LAW SENTENCING FOR MANSLAUGHTER EXCESSIVE SELF DEFENCE STABBING USE OF PUSH DAGGER

Citation: R v Stewart [2008] NSWSC 563
Court: Supreme Court of New South Wales
Date: 6 June 2008
Judge(s): Johnson J

Background

The offender was tried for the murder of Brian Sawtell, arising from a fatal stabbing in the early hours of 24 July 2006 at a residential property in Port Macquarie. The two men had come into conflict following a disturbance at a shared house, during which an earlier confrontation involving a Bowie knife and a sword had occurred without physical contact. After the offender and his former partner were asked to leave the premises, a further confrontation took place that ended in the deceased being stabbed.

The offender carried a push dagger concealed in his clothing, a weapon with a transverse handle designed so the blade protrudes between the fingers when gripped in a fist. The court found this weapon was specifically designed for use in fighting. The offender had carried it that night, he said, for personal safety in light of ongoing threats.

At trial, the jury acquitted the offender of murder but convicted him of manslaughter. The sentencing proceedings turned on whether that verdict reflected a finding of provocation or excessive self-defence, as the two pathways carry different sentencing implications.

  • Whether the manslaughter verdict arose from provocation or excessive self-defence
  • The objective gravity of the offence for sentencing purposes
  • The weight to be given to general and specific deterrence, particularly in light of the offender's use of a concealed fighting weapon
  • The relevance of the offender's subjective circumstances, including remorse, rehabilitation prospects, and his prior criminal history
  • Whether special circumstances existed justifying an adjustment to the standard ratio between the non-parole period and the balance of the head sentence

Decision

Johnson J concluded that the verdict was properly characterised as one of excessive self-defence rather than provocation. This finding was treated as consistent with the jury's verdict and was reached applying the criminal standard of proof.

The court assessed the offence as objectively grave. The offender had deliberately carried a concealed push dagger designed as a fighting weapon, and its use in the fatal encounter significantly elevated the seriousness of the conduct. Both general and specific deterrence were treated as particularly important sentencing considerations in that context, given that the offender had chosen to carry the weapon and deployed it against the deceased.

On the offender's subjective case, Johnson J accepted there was some evidence of remorse but noted it was mixed with an element of self-justification that went beyond what the jury's verdict properly allowed. The court found reasonable prospects of rehabilitation, partly based on steps the offender had taken to improve his education while in custody, though it expressed caution given his superficial engagement with earlier supervision by the Probation and Parole Service.

Special circumstances were found under the relevant sentencing legislation, based on the need for community-based management to support rehabilitation on release and matters raised in a psychologist's report. However, the court limited the adjustment to the standard ratio because it considered the offender should not serve any period in custody less than the minimum term imposed. A 12.5 per cent discount was applied before the final sentence was arrived at.

Orders Made

  • Non-parole period of seven years and three months, commencing 27 July 2006 and expiring 26 October 2013
  • Balance of term of three years and three months, commencing 27 October 2013 and expiring 26 January 2017
  • Earliest eligibility for release to parole: 26 October 2013

Key Takeaways

  • Where a manslaughter verdict could have arisen from either provocation or excessive self-defence, the sentencing court must make a finding as to which basis the verdict reflects, applying the criminal standard of proof and remaining consistent with the jury's verdict.
  • The deliberate carrying and concealed deployment of a weapon designed for fighting significantly increases the objective gravity of a manslaughter offence and weighs heavily in favour of both general and specific deterrence.
  • Findings of remorse may carry reduced weight where the offender's account at trial and post-verdict conduct suggests self-justification beyond what the jury's verdict permits.
  • Special circumstances justifying an adjustment to the non-parole/balance ratio do not automatically result in a substantial reduction; the Supreme Court here limited the adjustment to ensure the non-parole period was not diminished.
  • A sentencing discount for relevant subjective factors was applied at 12.5 per cent, producing a head sentence of ten years and six months for this manslaughter conviction.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44
- Crimes Act 1900 (NSW)

Cases:
- Cheung v The Queen [2001] 209 CLR 1
- R v Previtera (1997) 94 A Crim R 76
- R v FD and JD (2006) 160 A Crim R 392
- R v Oinonen [1999] NSWCCA 310
- R v Forbes [2005] NSWCCA 377
- R v Hillsley (2006) 164 A Crim R 252
- Ahmad v R [2007] NSWCCA 177
- R v Trevenna (2004) 149 A Crim R 505
- Ward v R (2006) 166 A Crim R 273
- R v Cakovski [2005] NSWSC 1001
- R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995)