Citation: Stewart, Wade John v R [2009] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 25 May 2009
Judge(s): Hodgson JA, Buddin J, Price J
Background
The applicant was tried before Johnson J and a jury on a charge of murder arising from the fatal stabbing of the deceased at a shared house in Port Macquarie in the early hours of 24 July 2006. The jury acquitted him of murder but returned a verdict of guilty of manslaughter. The basis for the manslaughter verdict was excessive self-defence, meaning the applicant used force that was genuine but grossly disproportionate to the threat he faced.
Johnson J sentenced the applicant to a total term of ten years and six months, comprising a non-parole period of seven years and three months followed by a balance of term of three years and three months. The applicant sought leave to appeal that sentence to the Court of Criminal Appeal, arguing it was manifestly excessive.
The relevant background facts, which were not in dispute on appeal, showed that the applicant had secretly armed himself with a concealed push dagger (a fighting knife with a nine-centimetre blade) before returning to the premises. A confrontation with the deceased resulted in the applicant inflicting multiple stab wounds. The sentencing judge found that the number and nature of the wounds demonstrated a repeated and grossly excessive level of violence intended to cause grievous bodily harm.
Legal Issues
- Whether the sentence of ten years and six months for manslaughter by excessive self-defence was manifestly excessive
- Whether the sentencing judge's assessment of the objective seriousness of the offence and the applicant's culpability was open to challenge
Decision
The Court unanimously dismissed the appeal. Hodgson JA, with whom Buddin J and Price J agreed, found no basis for concluding that the sentence was manifestly excessive. The Court adopted the standard from Vuni v R [2006] NSWCCA 171, which confirmed that to establish manifest excess an applicant must demonstrate the sentence was "unreasonable or plainly unjust." The Court emphasised that there is no single correct sentence, and that appellate courts cannot simply substitute their own view for that of the sentencing judge.
Hodgson JA observed that manslaughter is a category of offence where circumstances and criminality can vary enormously, even within a single sub-class such as manslaughter by excessive self-defence. That variation makes the assessment of culpability particularly a matter for the sentencing judge's discretion at first instance. No error in that exercise was identified here.
The Court also noted that the applicant's secret arming with a concealed push dagger, a weapon designed for fighting, was a relevant aggravating feature going to objective seriousness. The sentencing judge's finding that the number of wounds and the character of at least some of them reflected a grossly excessive and repeated level of violence was not open to challenge. The schedule of comparable cases provided by the applicant's counsel did not establish that the sentence fell outside any discernible range.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- To succeed on a manifest excess ground, an applicant must show the sentence was "unreasonable or plainly unjust," not merely that the appellate court might have exercised the sentencing discretion differently.
- Manslaughter by excessive self-defence encompasses a wide spectrum of circumstances and culpability, making first-instance sentencing assessments particularly resistant to appellate interference.
- Secretly arming oneself with a concealed weapon designed for fighting was treated as a factor aggravating the objective seriousness of the offence, even in the context of an excessive self-defence case.
- In dismissing the appeal, the Court of Criminal Appeal declined to extract a definitive sentencing range from the comparative cases presented, finding them insufficient to demonstrate that the sentence imposed was manifestly excessive.
- A total term of ten years and six months (with a seven-year, three-month non-parole period) for manslaughter by excessive self-defence involving multiple stab wounds and a concealed fighting knife was upheld as within the proper exercise of sentencing discretion.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter: 25 years imprisonment)
Cases:
- R v Stewart [2008] NSWSC 563 (sentence at first instance, Johnson J)
- Vuni v R [2006] NSWCCA 171
- Dinsdale v R (2000) 202 CLR 321
- Markarian v R [2005] HCA 25