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11
Court of Criminal Appeal 5 May 2014

Grant v R

[2014] NSWCCA 67

HomicideDrugs
CRIMINAL LAW MANSLAUGHTER APPEAL AGAINST SENTENCE

Citation: Grant v R [2014] NSWCCA 67
Court: Court of Criminal Appeal
Date: 05 May 2014
Judge(s): Leeming JA; Adams J; Hall J

Background

The appellant pleaded guilty to manslaughter on the basis of excessive self-defence, arising from his fatal shooting of a man who had entered his rural property with a companion to steal cannabis. The appellant said he fired twice in response to a violent attack by the deceased, who was brandishing a crowbar. He had purchased a pistol and installed security cameras after a prior assault on the property several months earlier.

At the sentencing hearing in September 2010, the primary judge asked the appellant's solicitor what mental state his client had held at the time of the shooting. The solicitor answered unequivocally that the appellant had intended to kill the deceased. The primary judge sentenced the appellant to 12 years' imprisonment with a non-parole period of 8 years and 6 months for manslaughter.

The appellant subsequently obtained new legal representation and sought leave to appeal against sentence on four grounds, including that the admission of intent to kill was made without proper instructions and constituted a miscarriage of justice.

Legal Issues

  • Whether the primary judge's factual findings were inconsistent with a manslaughter conviction and instead reflected findings appropriate only to murder, in breach of the rule in R v De Simoni
  • Whether a miscarriage of justice arose from the solicitor's admission that the appellant intended to kill the deceased, rather than merely cause grievous bodily harm
  • Whether a miscarriage of justice arose from the failure to obtain psychological or psychiatric evidence for the sentencing hearing
  • Whether the manslaughter sentence was manifestly excessive

Decision

Ground 1: Breach of the De Simoni rule

The Court refused leave on this ground. Read as a whole, the sentencing remarks disclosed no error. The primary judge's scepticism about parts of the appellant's account, including whether a crowbar was used and how the pistol was acquired, did not amount to a rejection of the plea of guilty to manslaughter. The judge expressly accepted that the deceased was violent and frightening, that the appellant feared him, and that the Crown's acceptance of the manslaughter plea required a finding that the appellant believed his actions were necessary. An element of premeditation in acquiring the weapon was not inconsistent with the use of excessive self-defence during the attack.

Ground 2: Miscarriage of justice through admission of intent to kill

The Court granted leave and allowed the appeal on this ground. For a plea of guilty to manslaughter based on excessive self-defence to be established, it was necessary that the Crown prove all elements of murder, including that the accused held an intent to kill, an intent to cause grievous bodily harm, or acted with reckless indifference to human life. Both intents were consistent with the plea. The primary judge correctly asked the solicitor which intent applied; the solicitor answered that the appellant intended to kill.

The Court found that the solicitor had not obtained clear instructions on this basic and crucial issue. His own evidence confirmed that the appellant repeatedly described wanting to "stop" the deceased, and that his answer to the judge was partly a matter of his own judgment. The phrase "kill or be killed," even if used by the appellant in instructions, did not inevitably connote an intention to kill rather than to cause grievous bodily harm. An intention to kill generally reflects greater culpability than an intention to cause grievous bodily harm, and the distinction was plainly material to the sentence. The appellant was entitled to have his position correctly conveyed to the sentencing judge, and the failure to do so constituted a miscarriage of justice.

Ground 3: Failure to obtain psychological or psychiatric evidence

The Court refused leave on this ground. The psychological and psychiatric reports obtained years after sentencing were characterised as "new" evidence (available at the time with reasonable diligence) rather than "fresh" evidence. Neither expert could express a view that the appellant was suffering from a mental disorder in 2009; each could only say that, years later, he described symptoms consistent with post-traumatic stress disorder. There was no satisfactory explanation for the lengthy delay in obtaining the reports. Nothing in the sentencing record suggested the solicitor had materially failed in his obligations. The evidence did not establish a miscarriage of justice on this ground.

Ground 4: Manifest excess

The Court did not determine this ground, as resentencing was required by reason of the success of Ground 2.

Resentencing

On resentencing, the Court treated the appellant as having intended to cause grievous bodily harm rather than to kill the deceased. The Court acknowledged the gravity of the offence, including that it arose from a long-term commercial cannabis operation, that the appellant had deliberately acquired a firearm and ammunition, and that he had disposed of the body to impede investigation. Against that, the Court noted the appellant's early offer to plead guilty to manslaughter, his age of 56, his prison conduct record, and two significant health diagnoses (a benign brain tumour and Addison's disease). A sentence of 10 years, with a non-parole period of 7 years and 6 months, replaced the original sentence.

Orders Made

  • Leave to appeal granted in respect of Ground 2
  • Appeal allowed
  • Sentence for manslaughter imposed on 15 September 2010 set aside
  • In lieu, the appellant sentenced to imprisonment for 10 years commencing 13 February 2011, with a non-parole period of 7 years and 6 months commencing 13 February 2011 and expiring 12 August 2018
  • Balance of term: 2 years and 6 months, expiring 12 February 2021
  • Earliest parole eligibility date: 12 August 2018

Key Takeaways

  • A plea of guilty to manslaughter on the basis of excessive self-defence necessarily accepts that the accused held a mental state sufficient for murder (intent to kill, intent to cause grievous bodily harm, or reckless indifference to human life); the distinction between those states of mind is a basic and material issue that legal representatives must obtain clear instructions on before sentencing.
  • Where a solicitor makes an unequivocal admission to a sentencing judge about a client's state of mind, on a matter that is both manifestly relevant to sentence and not the subject of clear instructions, the resulting miscarriage of justice can ground appellate intervention and resentencing.
  • A colloquial expression such as "kill or be killed," even if used in instructions, does not inevitably establish an instruction that the accused intended to kill rather than to cause grievous bodily harm; an advocate who treats it as doing so is exercising independent judgment rather than conveying instructions.
  • New psychological or psychiatric evidence (that is, evidence that could have been obtained with reasonable diligence before the original sentencing) faces a high threshold for admission on a sentence appeal, particularly where there is no satisfactory explanation for the delay in obtaining it and the experts cannot express a retrospective opinion about the accused's mental state at the time of the offence.
  • Factual findings made during sentencing that express scepticism about aspects of a guilty plea's narrative do not necessarily breach the De Simoni principle; what matters is whether, read as a whole, the remarks disclose that the judge sentenced on facts consistent with a more serious offence than that to which the accused pleaded guilty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18, s 421
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- Ali v The Queen [2005] HCA 8; 214 ALR 1
- Apps v R [2006] NSWCCA 290
- Crawford v R [2013] NSWCCA 269
- Dinsdale v R (2000) 202 CLR 321
- Douar v R [2005] NSWCCA 154; 159 A Crim R 154
- Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
- Fisher v R [2008] NSWCCA 129
- HJ v R [2014] NSWCCA 21
- Khoury v R [2011] NSWCCA 118
- KLM v Western Australia [2009] WASCA 73; 194 A Crim R 503
- Lane v R [2013] NSWCCA 317
- Lawless v The Queen (1979) 142 CLR 659
- Lee v R [2013] NSWCCA 68
- Magaming v The Queen [2013] HCA 40; 87 ALJR 1060
- Matthews v R [2013] NSWCCA 187
- Monteiro v R [2011] NSWCCA 113
- Mortada v R [2014] NSWCCA 36
- Nudd v The Queen [2006] HCA 9; 162 A Crim R 301
- Outram v R [2013] NSWCCA 329
- PFC v R [2011] NSWCCA 275
- R v Chioban [2002] NSWSC 972; [2003] NSWCCA 304
- R v Birks (1990) 19 NSWLR 677
- R v Diab [2007] NSWSC 577
- R v De Simoni (1981) 147 CLR 383
- R v Forbes [2005] NSWCCA 377
- R v Fordham (1997) 98 A Crim R 359
- R v Jones [2007] NSWSC 1333
- R v Hillsley [2006] NSWCCA 312
- R v Lavender [2005] HCA 37; 222 CLR 67
- R v Nguyen [2002] NSWSC 536
- R v Nguyen [2013] NSWCCA 195
- R v Trevenna [2003] NSWSC 463; [2004] NSWCCA 433
- TKWJ v The Queen [2002] HCA 46; 212 CLR 124
- Tran v R [2014] NSWCCA 32
- Winter v R [2013] NSWCCA 231
- Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645