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Supreme Court 28 March 2013

R v Leung

[2013] NSWSC 259

HomicideDomestic & family violence
CRIMINAL LAW SENTENCING UNLAWFUL AND DANGEROUS ACT TWO PRIOR ACQUITTALS CONVICTION AT THIRD TRIAL FINDING OF SPECIAL CIRCUMSTANCES.

Citation: R v Leung [2013] NSWSC 259
Court: Supreme Court of New South Wales
Date: 28 March 2013
Judge: Price J

Background

The offender was convicted by jury of the manslaughter of his long-term domestic partner, who died on 7 April 2007. The two men had shared a home in Alexandria for approximately four years, though evidence at trial indicated the relationship had been deteriorating in the weeks before the death, with the deceased having expressed fear of the offender to friends.

The deceased was found with 16 distinct injuries. The pathologist's opinion was that the injuries were more consistent with multiple blunt force contacts than a simple fall. Physical evidence at the scene, including a disassembled fruit juicer bearing both the deceased's DNA and the offender's fingerprint, and fresh damage to a kitchen wall consistent with an object being thrown, formed part of the Crown's case.

The conviction came at the offender's third trial. Two earlier trials had resulted in acquittals on murder, and the Crown had pursued appeals to the Court of Criminal Appeal on multiple occasions before the manslaughter conviction was ultimately returned.

  • What facts relevant to sentencing could be established beyond reasonable doubt, consistently with the jury's verdict of manslaughter?
  • What weight should be given to the mitigating and aggravating factors under the Crimes (Sentencing Procedure) Act 1999?
  • Whether special circumstances existed justifying a variation from the standard ratio between non-parole period and balance of term.
  • What sentence was appropriate for manslaughter by unlawful and dangerous act in these circumstances?

Decision

Price J made findings of fact consistent with the jury's verdict, concluding that the offender had caused the deceased's death by an unlawful and dangerous act. His Honour assessed a range of aggravating and mitigating factors under the Crimes (Sentencing Procedure) Act 1999, including the domestic relationship between the parties and the offender's personal circumstances.

On the question of special circumstances, His Honour identified two distinct bases for a finding. First, the prolonged history of proceedings, including two prior acquittals and multiple Crown appeals, had caused significant psychological harm to the offender. His Honour considered that fairness required some leniency to be extended to reflect that adverse impact, even though the Crown had a legitimate interest in pursuing retrial and was not entirely unsuccessful on appeal, given murder had always been rejected. Second, the offender's physical disability and need for ongoing psychiatric review and treatment provided a further independent basis for the finding.

His Honour was satisfied that no sentence other than full-time imprisonment was appropriate. The sentencing statistics for manslaughter were noted to be of limited utility, given the wide range of conduct that can constitute the offence.

Orders Made

  • The offender was sentenced to 8 years imprisonment for manslaughter.
  • Non-parole period: 4 years 6 months, commencing 26 July 2012 and expiring 25 January 2017.
  • Balance of term: 3 years 6 months, commencing 26 January 2017 and expiring 25 July 2020.
  • Earliest parole eligibility: 25 January 2017.

Key Takeaways

  • A finding of special circumstances justifying a reduced non-parole period can rest on the cumulative psychological burden of protracted criminal proceedings, including multiple retrials and Crown appeals, even where those proceedings were legitimately pursued.
  • The Supreme Court confirmed that a victim impact statement cannot be used to increase an offender's sentence, citing R v Previtera (1997) 94 A Crim R 76.
  • Manslaughter sentencing statistics drawn from the Judicial Commission were treated as having limited utility, given the breadth of conduct that can constitute the offence: R v Woodland [2001] NSWSC 416.
  • Facts adverse to an offender at sentencing must be established beyond reasonable doubt, while mitigating matters may be proved on the balance of probabilities.
  • Physical disability and a need for ongoing psychiatric treatment each constitute independent bases for a special circumstances finding, permitting departure from the standard non-parole to balance-of-term ratio.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(b), (e), (f), (g), (h)

Cases
- Hancock v R [2012] NSWCCA 200
- Mill v R (1988) 166 CLR 59
- R v Blacklidge (unrep, NSWCCA, 12 December 1995)
- R v Hill (1981) 3 A Crim R 397
- R v Isaacs (1997) 41 NSWLR 374
- R v Khanas (1999) 108 A Crim R 499
- R v Leung (No 3) [2009] NSWSC 450
- R v Macdonald (unrep, NSWCCA, 12 December 1995)
- R v Pilley (1991) 56 A Crim R 202
- R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199
- R v PL [2012] NSWCCA 31
- R v Previtera (1997) 94 A Crim R 76
- R v Woodland [2001] NSWSC 416