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Supreme Court 7 November 2012

R v Carney; R v Cambey

[2012] NSWSC 1344

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER EXCESSIVE SELF DEFENCE AGGRAVATING AND MITIGATING MATTERS DETERRENCE

Citation: R v Carney; R v Cambey [2012] NSWSC 1344
Court: Supreme Court of NSW
Date: 7 November 2012
Judge(s): Schmidt J

Background

The two offenders, cousins, went to the home of the deceased in the early hours of 29 January 2006 to buy cannabis, accompanied by a juvenile who was carrying a taser. During what followed, the first offender repeatedly struck the deceased with a metal pole. The deceased died that evening from his injuries. The second offender was present throughout and, on the court's findings, also inflicted injuries on the deceased.

Both offenders were convicted of murder at a first trial in 2010. The Court of Criminal Appeal overturned those convictions in 2011, finding the trial judge had erred by not leaving the alternative verdict of manslaughter to the jury. At the second trial in 2012, a jury acquitted both men of murder but found them guilty of manslaughter. Schmidt J then conducted the sentencing hearing.

The manslaughter verdicts rested on a finding of excessive self-defence: the offenders had used force that went beyond what was reasonably necessary in the circumstances. After the first trial, the second offender had offered to plead guilty to manslaughter, but that offer was rejected by the prosecution.

  • What sentence was appropriate for each offender, having regard to the objective gravity of the offence of manslaughter by excessive self-defence?
  • What facts relevant to sentencing could be established consistent with the jury's verdicts, applying the applicable standards of proof?
  • How should the court weigh the aggravating and mitigating factors under s 21A of the Crimes (Sentencing Procedure) Act 1999, including each offender's criminal history, rehabilitation, remorse, and the conduct at the time of the offence?
  • How should parity between the two offenders be maintained, given their differing roles and individual circumstances?
  • What weight should be given to general and specific deterrence, and to the victim impact statements?

Decision

Schmidt J found, consistent with the jury's verdicts, that the manslaughter was committed by way of excessive self-defence. The court was satisfied beyond reasonable doubt that the first offender struck the deceased both while he was standing and after he had fallen, and that the injuries were inflicted over a greater period and with more force than either offender admitted. The court found that neither offender gave entirely truthful evidence at trial, with both downplaying their involvement.

The second offender's role was found to be less than the first offender's: the first offender was the one who repeatedly struck the deceased with the pole, and was the primary aggressor. The court found it established on the balance of probabilities that the second offender had kicked the deceased, notwithstanding his denials. The overall criminality was assessed as serious, involving the wrongful taking of a human life in a home invasion context, but the excessive self-defence finding moderated the objective gravity compared with murder.

In weighing the subjective circumstances, the court considered each offender's age at the time of the offence, background, rehabilitation since the offences, remorse (which was assessed as limited given the dishonesty in their evidence), and the lengthy and difficult procedural history including the period each had spent in custody. The rejected offer by the second offender to plead guilty to manslaughter after the first trial was taken into account in his favour, as a form of utilitarian acknowledgement of responsibility that had not been accepted by the Crown.

Parity required that the sentence for the second offender be meaningfully lesser than that for the first, reflecting his lesser role. The court also acknowledged the painful experience of the deceased's family, noting that the protracted proceedings, including a successful appeal and a substantially different case being run at retrial, had caused them additional suffering.

Orders Made

  • Todd Carney: Non-parole period of 6 years imprisonment, commencing 25 June 2010 and expiring 24 June 2016; balance of term of 3 years, expiring 24 June 2019. Earliest parole eligibility: 24 June 2016.
  • Luke Cambey: Non-parole period of 5 years and 2 months imprisonment, commencing 16 September 2008 and expiring 15 November 2013; balance of term of 2 years and 6 months, expiring 15 May 2016. Earliest parole eligibility: 15 November 2013.

Key Takeaways

  • Manslaughter by excessive self-defence remains a serious offence warranting a significant custodial sentence, even though the self-defence element moderates objective gravity relative to murder; the maximum penalty of 25 years imprisonment reflects the gravity Parliament attaches to the wrongful taking of human life.
  • When sentencing after an acquittal on a more serious charge, the court must find the facts relevant to sentencing consistently with the jury's verdict: adverse facts must be established beyond reasonable doubt, while facts in favour of an offender need only be established on the balance of probabilities, following R v Olbrich [1999] HCA 54.
  • A co-offender's rejected offer to plead guilty to manslaughter after a first trial, though not a formal guilty plea, was treated as a relevant mitigating circumstance reflecting an acknowledgment of responsibility and potential utilitarian value.
  • Parity between co-offenders required the court to impose a materially lesser sentence on the offender with the lesser role, even where both were convicted on the same charge arising from the same events.
  • Dishonesty in evidence at trial, where the court finds the offenders downplayed their involvement, is a factor that limits the weight given to claimed remorse at sentencing.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A

Cases
- Carney v R; Cambey v R [2011] NSWCCA 223
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- R v Dodd (1991) 57 A Crim R 349
- R v Fletcher-Jones (1994) 75 A Crim R 381
- R v Gordon (1994) 71 A Crim R 459
- R v MD [2005] NSWCCA 342; (2005) 156 A Crim R 37
- R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Previtera (1997) 94 A Crim R 76
- R v Scott [2005] NSWCCA 152
- R v Stephens [2008] NSWSC 1429
- R v Tzanis [2005] NSWCCA 274
- Stephens v R [2009] NSWCCA 240