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Court of Criminal Appeal 16 September 2009

Stephens v R

[2009] NSWCCA 240

Assault & violenceHomicide
CRIMINAL LAW AND PROCEDURE MANSLAUGHTER EXCESSIVE SELF DEFENCE SENTENCE

Citation: Stephens v R [2009] NSWCCA 240
Court: New South Wales Court of Criminal Appeal
Date: 16 September 2009
Judge(s): McClellan CJ at CL, Grove J, RA Hulme J

Background

The appellant had pleaded guilty to manslaughter, which the Crown accepted in discharge of an indictment for murder. The basis of reduced culpability was excessive self-defence: the appellant stabbed the victim once in the chest with a serrated kitchen knife at the doorway of a community café in West Newcastle. The victim died at the scene from a single wound that penetrated 11.3 centimetres, with 5.5 centimetres passing through the heart muscle.

The circumstances leading to the killing showed the victim had been agitated and aggressive that morning, having told witnesses he intended to physically confront the appellant over an alleged theft. The appellant, who was homeless and had a long history of mental illness and substance abuse, pulled the knife from his backpack at the moment the victim pushed through the door towards him. A forensic pathologist found a hilt mark on the victim's body, indicating the stab was delivered with heavy force.

Latham J in the Supreme Court sentenced the appellant to 10 years' imprisonment with a non-parole period of 7 years. The appellant sought leave to appeal on the ground that the sentence was excessive.

  • Whether the sentencing judge gave sufficient weight to the appellant's mental illness as a mitigating factor
  • Whether the total sentence of 10 years with a 7-year non-parole period was manifestly excessive for manslaughter by excessive self-defence

Decision

On the mental illness ground, the Court of Criminal Appeal noted that a ground framed as "insufficient weight" tacitly concedes that some weight was in fact given. The sentencing judge had explicitly acknowledged the appellant's long-standing mental illness and the role it played in creating a heightened and exaggerated sense of danger. The Court found no error in the judge's approach.

However, the sentencing judge had also found that the appellant's non-compliance with treatment and rehabilitation programs, combined with the absence of any impairment of cognitive or intellectual capacity, significantly limited the mitigating value of the mental illness. The expert psychiatrist, Dr Delaforce, could not attribute the appellant's fatal conduct to his schizophrenia. The Court of Criminal Appeal accepted these findings as properly open to the sentencing judge.

On the question of manifest excess, the Court observed that manslaughter by excessive self-defence covers a wide range of objective gravity, and sentences across individual cases vary accordingly. The Court was not persuaded that the sentence fell outside the range of a sound exercise of discretion. Grove J noted that, while the case was not in the worst category, Parliament's prescription of a maximum of 25 years' imprisonment remained a relevant guidepost when assessing whether manifest excess was demonstrated.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A ground of appeal framed as "insufficient weight" to a mitigating factor is inherently difficult to establish, because it concedes the factor was considered; appellate intervention on questions of weight in the exercise of sentencing discretion is narrowly confined.
  • The Court of Criminal Appeal confirmed that mental illness carries reduced mitigating force where an offender has persistently failed to comply with treatment regimes and retains full cognitive capacity to appreciate the consequences of their conduct.
  • Manslaughter encompasses an exceptionally wide range of conduct and culpability, making direct sentence comparisons between individual cases of limited utility; the proper question is whether the sentence falls within the range appropriate to the objective gravity and subjective circumstances of the particular offence and offender.
  • No specific error having been identified in the sentencing judge's reasoning, the Court applied the principle from Markarian v The Queen that there is no single correct sentence and that sentencing judges are entitled to considerable flexibility consistent with a proper exercise of discretion.
  • In dismissing the appeal, the Court found the 10-year sentence with a 7-year non-parole period sat comfortably within the sound exercise of sentencing discretion for this category of manslaughter.

Legislation and Cases Referenced

Cases:
- Markarian v The Queen (2006) 228 CLR 357
- R v Baker [2000] NSWCCA 85
- R v Forbes (2005) 160 A Crim R 1
- R v Morgan (1993) 70 A Crim R 368
- R v Trevenna (2004) 149 A Crim R 505
- Stewart v R [2009] NSWCCA 5
- Ward v R (2006) 166 A Crim R 433

Legislation: No specific legislation was identified in the provided text, though the maximum penalty of 25 years for manslaughter was referenced as a parliamentary prescription.