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Supreme Court 20 April 2011

R v Winefield

[2011] NSWSC 337

Assault & violenceHomicideFirearms & weapons
CRIMINAL LAW SENTENCE OFFENDER ARMED WITH A KNIFE VIOLENCE BY ROAD USER

Citation: R v Winefield [2011] NSWSC 337
Court: Supreme Court of New South Wales
Date: 20 April 2011
Judge(s): Fullerton J

Background

The offender was convicted by jury of the manslaughter of Caleb Jarrett at Nambucca Heads on 14 February 2009, having been acquitted of murder. The fatal encounter occurred shortly before midnight when the offender, who had been drinking and had argued violently with his girlfriend, drove out of his driveway and confronted Caleb, who was walking ahead of a group of younger friends aged between 13 and 18.

The offender stabbed Caleb multiple times with a spring-loaded knife. A single penetrating wound to the chest entered the left ventricle of the heart and proved fatal. Several other stab and slash wounds were sustained to the abdomen, thighs, and groin.

The central factual dispute at trial was who was armed with the knife and who was the aggressor. The offender claimed Caleb had been the aggressor and that he had picked up the knife from the ground in self-defence. The jury rejected that account, and Fullerton J accepted, consistently with the verdict, that the offender had brought the knife and wielded it throughout the fight.

  • On which of the alternative bases of manslaughter left to the jury should sentence be imposed, and what factual findings did that require?
  • What was the objective seriousness of the offence?
  • What was the offender's level of moral culpability, having regard to alcohol consumption, psychiatric state, and the circumstances of the confrontation?
  • Whether any subjective circumstances operated to mitigate the sentence.
  • Whether special circumstances existed warranting a departure from the statutory non-parole to head sentence ratio under the Crimes (Sentencing Procedure) Act 1999.

Decision

Fullerton J found, beyond reasonable doubt, that the offender was armed with the knife when he approached Caleb, that he struck first with the knife-bearing hand, and that he deliberately inflicted the fatal wound and each of the other wounds. The basis for sentencing was manslaughter by an unlawful and dangerous act, not by gross criminal negligence. Her Honour found there was no self-defence operating at any point.

The objective gravity of the offending was assessed as towards the high end of seriousness for this category of manslaughter. Aggravating features included the use of a knife, the unprovoked nature of the attack, the absence of any provocation justifying a violent response, the offending taking place in the presence of children, and the element of road-user violence preceding the confrontation.

Her Honour was not satisfied the offender's moral culpability reached the highest level. Alcohol consumption and an impulsive, emotionally agitated state were relevant context, but did not significantly mitigate the gravity of the conduct. There were no subjective circumstances, including psychiatric or rehabilitative factors, that operated meaningfully in the offender's favour.

On the question of special circumstances, the court declined to depart from the statutory ratio. Fullerton J concluded that the standard parole period, combined with family support and the offender's capacity for skilled employment, would provide sufficient structure upon release.

Orders Made

  • The offender was sentenced to imprisonment for 10 years.
  • Non-parole period: 7 years and 6 months, commencing 14 February 2009 and expiring 13 August 2016.
  • Balance of term: 2 years and 6 months, expiring 13 February 2019.

Key Takeaways

  • Sentencing factual findings must be consistent with the jury's verdict; findings adverse to an offender must be proved beyond reasonable doubt, while matters in mitigation need only be established on the balance of probabilities, applying R v Olbrich.
  • Under the De Simoni principle, conduct not charged as an offence cannot be used to aggravate the sentence for the offence that was charged, even where that conduct is part of the surrounding circumstances.
  • The objective seriousness of manslaughter by unlawful and dangerous act is significantly elevated where the offender is the aggressor, armed with a knife, acts without provocation, and commits the offence in the presence of children.
  • Alcohol consumption and emotional agitation may inform an assessment of whether conduct was impulsive rather than reflecting an entrenched predisposition to violence, but neither factor necessarily reduces the objective gravity of the offending.
  • No special circumstances warranting a variation from the statutory non-parole ratio were established where the standard parole period provided sufficient time for supervision and support on release.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- R v Olbrich [1999] HCA 54; 199 CLR 270
- R v De Simoni [1981] HCA 31; 147 CLR 383
- Alvares v R [2011] NSWCCA 33
- Butters v R [2010] NSWCCA 1
- R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
- R v Lavender [2005] HCA 37; 222 CLR 67
- R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505
- MAH v R [2006] NSWCCA 226
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159
- R v Hamilton; R v Sandilands [2007] NSWSC 452
- R v Ward [2010] NSWSC 304
- R v West [2011] NSWCCA 91
- Director of Public Prosecutions v Lothian [2006] VSCA 217
- Police v Kennedy [2005] SASC 173