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6
Supreme Court 30 August 2012

R v Seymour

[2012] NSWSC 1010

Homicide
CRIMINAL LAW SENTENCING EXCESSIVE SELF DEFENCE MANSLAUGHTER

Citation: R v Seymour [2012] NSWSC 1010
Court: Supreme Court of New South Wales
Date: 30 August 2012
Judge: Price J

Background

A jury found the offender guilty of the manslaughter of her mother following an incident at the family home in Girraween in the early hours of 24 November 2010. The offender had returned home late at night to find her mother, who had been babysitting the offender's two-year-old son. Shortly before 3:45 am, the offender stabbed her mother once with a kitchen knife in the back of the upper left arm, severing the brachial artery. The deceased died from blood loss.

The jury acquitted the offender of murder. The maximum penalty for manslaughter in New South Wales is 25 years imprisonment.

The sentencing judge was required to characterise the basis on which the jury returned its manslaughter verdict, and then determine an appropriate sentence having regard to all relevant circumstances, including the offender's personal history, the nature of the relationship between the offender and the deceased, and applicable mitigating and aggravating factors.

  • On what basis did the jury return a verdict of manslaughter, and what facts should be taken as established for sentencing purposes?
  • What weight should be given to evidence of the deceased's drug intoxication and physical limitations at the time of the offence?
  • What mitigating and aggravating factors applied under the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio?
  • What sentence was appropriate for an offence of excessive self-defence manslaughter in these circumstances?

Decision

Price J was satisfied that the manslaughter verdict rested on excessive self-defence. That is, the jury accepted the offender genuinely believed her conduct was necessary to defend herself, but was satisfied beyond reasonable doubt that her response was not a reasonable one in the circumstances as she perceived them. Both the Crown and defence counsel agreed with this characterisation.

The judge accepted, on the balance of probabilities, that the relationship between the offender and the deceased had involved verbal abuse and physical violence by the deceased toward the offender. The last physical incident before the night in question had occurred in April 2010. The judge found the deceased was affected by significant quantities of amphetamine, methylamphetamine, methadone, and cannabis at the time of death, though expert evidence indicated the high methadone level would have limited the deceased's capacity for physical aggression compared with what it would have been without methadone. Evidence also established that the deceased had chronic leg and knee problems affecting her mobility, though she retained the ability to walk and move quickly over short distances on a flat surface.

On aggravation, the judge noted the offence was committed in the presence of the offender's young child. In mitigation, the offender had no prior convictions, had entered a not-guilty plea, had good prospects of rehabilitation, and had experienced a difficult personal history including a troubled relationship with the deceased. A pre-sentence report and psychiatric evidence were considered. The judge found that the R v Smith principles concerning mental disorder as a mitigating factor were not enlivened, as the offender's anxiety disorder did not causally contribute to the offending in the relevant sense.

Finding no appropriate alternative to full-time imprisonment, Price J identified special circumstances arising from the offender's separation from her young son, her need for ongoing psychiatric treatment, and the need for assistance with substance abuse issues. This justified a longer-than-standard balance of term relative to the non-parole period.

Orders Made

  • The offender was sentenced to 6 years 6 months imprisonment for manslaughter.
  • Non-parole period of 3 years 6 months, commencing 24 November 2010 and expiring 23 May 2014.
  • Balance of term of 3 years, commencing 24 May 2014 and expiring 23 May 2017.
  • Earliest eligibility for release to parole: 23 May 2014.

Key Takeaways

  • Where multiple bases for a manslaughter verdict were left to the jury, the sentencing court must determine which basis is consistent with the verdict and sentence accordingly; here, Price J was satisfied the verdict rested on excessive self-defence rather than provocation or unlawful and dangerous act.
  • A sentencing court may accept, on the balance of probabilities, that a history of domestic violence by the deceased toward the offender is relevant to context and mitigation, even where the last incident predated the offence by some months.
  • Expert pharmacological and pathological evidence about the deceased's drug use and physical condition informed the assessment of objective seriousness, but such evidence operates within constraints established by the overall facts.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 were made out by the combination of the offender's separation from a young child, the need for psychiatric treatment, and substance abuse rehabilitation needs, justifying an adjusted ratio between the non-parole period and the balance of term.
  • Sentencing statistics for manslaughter carry limited utility given the wide variety of conduct that can constitute the offence, consistent with the approach in R v Woodland [2001] NSWSC 416.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(ea), 21A(3)(b), 21A(3)(c), 21A(3)(g)-(h), 21A(3)(i)(i)-(ii)

Cases
- Gore v R; Hunter v R [2010] NSWCCA 330; (2010) 208 A Crim R 353
- R v Badanjak [2004] NSWCCA 395
- R v Blacklidge (unrep, NSWCCA, 12 December 1995)
- R v Hemsley [2004] NSWCCA 228
- R v Hill (1981) 3 A Crim R 397
- R v Israil [2002] NSWCA 255
- R v Isaacs (1997) 41 NSWLR 374
- R v Macdonald (unrep, NSWCCA, 12 December 1995)
- R v Pilley (1991) 56 A Crim R 202
- R v Previtera (1997) 94 A Crim R 76
- R v Smith (1987) 44 SASR 587
- R v Woodland [2001] NSWSC 416
- Salah, Dror v R [2009] NSWCCA 2