Citation: Forrest v R [2009] NSWCCA 11
Court: New South Wales Court of Criminal Appeal
Date: 12 February 2009
Judges: Hodgson JA, James J, Price J
Background
The applicant was charged with the murder of Brett Crittenden, who was stabbed on 26 January 2007 at a residential property in Long Jetty, NSW. The applicant had brought the deceased back to the premises where a woman, Karen Crittenden, was staying. After the deceased was asked to leave the house, he threatened Ms Crittenden repeatedly on the front steps, saying "I'll stab you." The applicant then retrieved a kitchen knife from inside and stabbed the deceased, causing fatal abdominal injuries.
The applicant offered a plea to manslaughter at arraignment, which the Crown initially rejected. After a day and a half of trial, the Crown accepted the plea on the basis of provocation. Studdert AJ sentenced the applicant to a total term of seven years and six months, with a non-parole period of five years and nine months.
The applicant sought leave to appeal against that sentence, arguing that the sentencing judge had failed to properly account for psychiatric evidence and an element of defence of another person, and that the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by failing to give sufficient weight to the applicant's psychiatric history, including evidence of flashbacks to a traumatic childhood event from 1978
- Whether the sentencing judge erred by not treating the offence as, at least in part, an act in defence of another person
- Whether the total sentence of seven years and six months was manifestly excessive
Decision
On the psychiatric evidence, the Court found no error in the sentencing judge's approach. Two psychiatrists had been provided with histories by the applicant, and neither history strongly supported the contention that flashbacks to a 1978 incident played a significant role in the offence. Hodgson JA noted that the applicant himself gave no evidence suggesting that one psychiatric history was more accurate than the other, and defence counsel made no such submission below.
On the defence of another person issue, the Court observed that the case had not been presented to the sentencing judge on the basis of self-defence or excessive self-defence. When the sentencing judge directly asked whether counsel was seeking a finding that the applicant believed the deceased was holding a knife, counsel responded that it was unnecessary because the matter proceeded on provocation. In those circumstances, the Court found no error in the sentencing judge's failure to address the issue in the way the applicant now sought.
The Court also rejected the submission that the sentence was manifestly excessive. Hodgson JA accepted that the sentencing judge had regard to the applicant's special sensitivity and had characterised the provocation as significant but not extreme. No error in reasoning was demonstrated, and the outcome was one that was open to the sentencing judge on the evidence before him. The Court also held that, while a finding of special circumstances may have been open, the view that the parole period was adequate was similarly open.
Orders Made
- Application for leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- No error was established where a sentencing judge declined to make factual findings that were never squarely put by defence counsel at the sentencing hearing, particularly where the case was conducted entirely on the basis of provocation rather than defence of another.
- Where conflicting psychiatric histories exist and neither the applicant nor counsel at first instance asserted one was more accurate than the other, a sentencing judge cannot be faulted for failing to resolve that tension in the applicant's favour.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the characterisation of provocation as "significant but by no means extreme" was a finding reasonably open on the facts, and did not of itself demonstrate insufficient weight given to mitigating circumstances.
- A sentencing judge's decision not to find special circumstances, where the parole period was considered adequate and appropriate, will not constitute error simply because such a finding may also have been open.
- The Court of Criminal Appeal granted leave to appeal while dismissing the appeal on the merits, reflecting the principle that leave may be granted where grounds are arguable even if they ultimately do not succeed.
Legislation and Cases Referenced
Cases:
- R v Alexander (1994) 78 A Crim R 141
- Green v The Queen (1997) 191 CLR 334