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Supreme Court 3 August 2012

R v Won

[2012] NSWSC 855

Homicide
CRIMINAL LAW SENTENCE MANSLAUGHTER PROVOCATION

Citation: R v Won [2012] NSWSC 855
Court: Supreme Court of New South Wales
Date: 3 August 2012
Judge: Fullerton J

Background

The offender was convicted after trial of the manslaughter of a man he found having sexual intercourse with his wife in their Pendle Hill home on 11 May 2010. The jury acquitted the offender of murder. The court was satisfied the manslaughter verdict rested on provocation, given the Crown had conceded during final address that the offender had in fact lost self-control.

The offender had pleaded guilty to manslaughter when presented to the jury, and had offered that same plea prior to and at committal. The Crown declined to accept the plea in discharge of the indictment on either occasion. Sentencing proceeded on the basis that the killing occurred in the context of the offender discovering an extramarital affair his wife had been conducting with the deceased, a man who had been both a social acquaintance and, in the weeks before the killing, a tradesperson working at the family home.

The attack involved six stab wounds inflicted with an 18-centimetre kitchen knife. The fatal wound transected two arteries, a major vein and a nerve in the deceased's upper left arm. The deceased bled to death in the offender's lounge room.

  • Whether the manslaughter verdict reflected a finding of provocation, and what effect that had on the objective seriousness of the offending
  • How to apply the three factors identified in R v Alexander (degree of provocation, time between provocation and loss of control, and degree of violence) when assessing objective seriousness in a provocation manslaughter
  • Whether the offender was entitled to a sentencing discount for his early and repeated offers to plead guilty to manslaughter, which the Crown had declined
  • Whether special circumstances existed justifying a departure from the standard ratio between non-parole period and balance of term under s 44 of the Crimes (Sentencing Procedure) Act 1999

Decision

Fullerton J was satisfied the provocation in this case was not of a high degree, noting that the offender likely had some prior awareness of the affair even if he had no direct confirmation before the night of the killing. At the same time, the degree of violence was considerable: the attack was sustained and persistent, carried into the lounge room as the deceased tried to flee, and accompanied by statements indicating an intention to kill. These competing features required holistic assessment rather than a formulaic application of the Alexander factors.

On the question of the sentencing discount, her Honour applied R v Johnson [2003] NSWCCA 129 and allowed a 25 per cent reduction. This reflected the offender's consistent willingness to plead guilty to manslaughter from an early stage, combined with the Crown's own concession at trial that the offender had in fact lost self-control. In those circumstances, the court was satisfied that a substantial discount was warranted.

In assessing subjective factors, the court found the offender to be of prior good character, a hard-working and reliable provider for his family with no criminal history. His rehabilitation was found to be well advanced after two years in pre-trial custody and his remorse was accepted as genuine. The court found no need for personal deterrence and considered the offender unlikely to reoffend violently. Special circumstances were found to exist, justifying a longer-than-standard parole period to support his reintegration without the structure of family life.

Orders Made

  • The offender sentenced to imprisonment for 7 years and 6 months, commencing 11 May 2010
  • Non-parole period of 5 years, expiring 10 May 2015
  • Balance of term of 2 years and 6 months, expiring 10 November 2017

Key Takeaways

  • Sentencing for provocation manslaughter does not require a rigid tick-box application of the Alexander factors. The court applied a holistic assessment of all objective features of the offending, including the degree of provocation and the degree of violence, treated as matters of weight rather than a checklist.
  • Where the Crown declines a guilty plea to manslaughter but later concedes at trial that the defendant did in fact lose self-control, a substantial sentencing discount remains available, consistent with R v Johnson.
  • A 25 per cent discount was appropriate on the specific facts, reflecting both the early and repeated plea offers and the Crown's own concession during final address.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 were made out where an offender's rehabilitation was advanced but the loss of family support on release justified a longer parole period to assist reintegration.
  • Prior good character, a stable work history, genuine remorse, and the absence of any need for personal deterrence are all capable of operating as significant mitigating factors in a provocation manslaughter sentence, even where the violence involved was persistent and serious.

Legislation and Cases Referenced

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

Cases
- R v Alexander (1994) 78 A Crim R 141
- R v Bolt [2001] NSWCCA 487; 126 A Crim R 284
- R v Johnson [2003] NSWCCA 129
- Hill v R (1981) 3 A Crim R 397