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Court of Criminal Appeal 13 May 2011

SMITH v REGINA

[2011] NSWCCA 110

Assault & violenceHomicide
CRIMINAL LAW APPEAL AGAINST SENTENCE MANSLAUGHTER DECEASED LOWERS KNIVES AND BACKS AWAY

Citation: Smith v Regina [2011] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 13 May 2011
Judges: Campbell JA, RS Hulme J, Hoeben J

Background

The appellant pleaded guilty mid-trial to the manslaughter of a man in Narrabri in the early hours of 28 June 2008. The deceased had armed himself with two knives, concealed his face with a balaclava, and aggressively pursued the appellant and his companions through the streets. A third party then confronted the deceased with a large branch and demanded he drop the knives. The deceased raised his hands, indicated he wanted a truce, and began backing away.

The appellant then took hold of the branch and struck the deceased in the head at least twice while he was still standing, struck him again after he fell to the ground, and kicked him around the head until pulled back by a companion. The deceased never regained consciousness and died from inhalation of blood caused by blunt force injuries to the head and neck. The appellant had consumed both alcohol and cannabis that evening and had sustained a knife wound to his hand during the confrontation.

The Crown accepted a plea of guilty to manslaughter on the basis of excessive self-defence. Acting Justice Mathews sentenced the appellant to a total term of 6 years and 9 months, with a non-parole period of 4 years and 6 months. The appellant sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had misassessed the degree of threat posed by the deceased.

  • Whether the sentencing judge erred in her assessment of the degree of threat the deceased posed at the time the fatal blows were struck
  • Whether the sentence of 6 years and 9 months imprisonment (with a non-parole period of 4 years and 6 months) was manifestly excessive for manslaughter by excessive self-defence

Decision

On the threat assessment ground, the Court of Criminal Appeal found no error in the sentencing judge's factual findings. The sentencing judge had access to the full trial evidence as well as additional material tendered at the sentence proceedings, and had observed the witnesses firsthand. Her finding that the deceased no longer presented any immediate threat at the moment the appellant struck him was plainly open on the evidence.

The Court rejected the appellant's argument that his culpability was "extremely slight." Once the deceased had signalled a truce and was backing away, the appellant's response could not reasonably be characterised as proportionate, even accounting for the deceased's earlier aggression and the appellant's intoxicated state. The sentencing judge's findings were inconsistent with a conclusion of extremely slight culpability, though they were consistent with placing the offending in the lower range of culpability for this category of manslaughter.

On manifest excess, the Court identified four undisputed objective features of the offending: a human life was taken; the level of excess was substantial, given the weapon used and the number and location of blows and kicks to the head; some blows were delivered while the deceased lay helpless on the ground; and the first blow was struck while the deceased was backing away and asking for a truce. The Court was satisfied the sentence was well within the legitimate exercise of the sentencing discretion, having also noted that the strong subjective case for the appellant had been fully weighed below.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's factual findings about the nature and degree of a threat are entitled to significant weight where they rest on firsthand observation of witnesses and the full trial record.
  • A plea of guilty to manslaughter on the basis of excessive self-defence does not, of itself, establish extremely slight culpability: the degree of excess in the response remains a critical consideration.
  • Where fatal blows are struck after the victim has signalled surrender and begun to withdraw, the absence of any immediate threat at that moment bears heavily on the objective seriousness of the offending, even where the victim had been genuinely threatening moments earlier.
  • Intoxication and a mistaken belief in the continuing need for self-defence may inform the characterisation of the offence as manslaughter rather than murder, but they do not automatically reduce culpability to a minimal level for sentencing purposes.
  • No error arises in a sentence for this category of manslaughter simply because the offender had a strong subjective case, provided that case was genuinely weighed and balanced against the objective features of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b) (manslaughter; maximum penalty 25 years imprisonment)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 157

Cases
- Stanford v R [2007] NSWCCA 73