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Court of Criminal Appeal 29 October 2014

Pitts v R

[2014] NSWCCA 244

Assault & violenceHomicide
CRIMINAL LAW APPEAL AGAINST SENTENCE MANSLAUGHTER EXCESSIVE SELF DEFENCE NO REAL THREAT OF VIOLENCE

Citation: Pitts v R [2014] NSWCCA 244
Court: Court of Criminal Appeal, New South Wales
Date: 29 October 2014
Judge(s): Hoeben CJ at CL; R A Hulme J; Davies J

Background

The appellant had been tried in the Supreme Court on a charge of murder following the fatal stabbing of a man outside his apartment in Redfern. A jury returned a verdict of guilty to manslaughter. The sentencing judge, Adamson J, imposed 10 years imprisonment with a non-parole period of 7 years and 6 months, commencing 16 September 2012.

The deceased had kicked in the front door of the appellant's unit in the early hours of the morning, frightening the appellant's sister and two young nieces who were staying there. However, by the time the appellant emerged, the deceased and his companion were already walking away toward the lifts. The appellant called out to them, then returned inside, retrieved a kitchen knife, followed the two men into the corridor, and stabbed the deceased in the chest, causing his death.

Adamson J found that the manslaughter verdict was consistent with excessive self-defence: the appellant likely believed his conduct was necessary to defend himself or his family, but that belief did not amount to a reasonable response in the circumstances as he perceived them. The sentencing judge also found, beyond reasonable doubt, that the appellant intended to cause grievous bodily harm.

  • Whether the sentence of 10 years imprisonment with a 7.5-year non-parole period was manifestly excessive, having regard to the objective seriousness of the offence and the appellant's favourable subjective circumstances
  • Whether a comparative analysis of sentences in other excessive self-defence manslaughter cases supported a finding of manifest excess

Decision

The sole ground of appeal was manifest excess. R A Hulme J (with whom Hoeben CJ at CL and Davies J agreed) dismissed the appeal, finding that the sentence was neither unreasonable nor plainly unjust.

The Court examined a large schedule of comparative sentences in excessive self-defence manslaughter cases submitted by the appellant. Several features of the comparison cases distinguished them from the present case. Many involved situations where the offender faced a genuine, immediate threat of violence. In the present case, the deceased and his companion were already walking away when the appellant chose to confront them. The appellant then armed himself with a knife before re-engaging them, and need not have done so at all.

R A Hulme J also noted that several of the comparison cases involved youthful offenders (attracting special sentencing considerations), sentences that appeared arguably inadequate on their face, and offenders who received reductions for pleas of guilty, a factor absent here. After accounting for these distinctions, the broad comparative review did not produce an impression of manifest excess.

The Court accepted that the sentencing judge made numerous favourable subjective findings: the appellant had a troubled childhood, a history of drug dependence that was being well managed, no significant prior convictions, good prospects of rehabilitation, and genuine remorse. However, those findings were fully reflected in the sentence. The degree to which the appellant's response was unreasonable remained, in the Court's assessment, quite extreme, and the sentencing judge's characterisation of the conduct as "heinous" and "misguided" was open to her on the facts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence for manslaughter by excessive self-defence must reflect not only favourable subjective circumstances but also the degree to which the offender's response departed from a reasonable one.
  • Where an offender armed himself and re-engaged a departing person rather than facing an immediate or continuing threat, that feature significantly distinguished the case from other excessive self-defence manslaughter decisions and supported a higher assessment of objective seriousness.
  • Comparative sentencing analysis carries limited utility where the comparison cases involve youthful offenders, arguably inadequate sentences, or discounts for guilty pleas that are absent from the case under review.
  • Manslaughter continues to produce the widest range of sentences of any homicide offence, reflecting the great variety of circumstances affecting culpability; the fundamental principle remains that there has been an unlawful taking of human life for which the offender bears criminal responsibility (following R v Blacklidge).
  • A finding that the offender intended to cause grievous bodily harm, combined with a jury verdict of manslaughter by excessive self-defence, does not of itself reduce objective seriousness where the circumstances show the threat was not immediate and the confrontation was self-initiated.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3), 44(2)

Cases:
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
- R v Isaacs (1997) 41 NSWLR 374
- R v Loveridge [2014] NSWCCA 120
- The Queen v Lavender [2005] HCA 37; 222 CLR 67