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Supreme Court 2 May 2014

R v Phanekham (No 3)

[2014] NSWSC 508

Assault & violenceHomicide
CRIMINAL LAW SENTENCE FACT FINDING ON SENTENCE ROLE OF INTOXICATION VICTIM IMPACT PRIOR CRIMINAL RECORD

Citation: R v Phanekham (No 3) [2014] NSWSC 508
Court: Supreme Court of New South Wales
Date: 2 May 2014
Judge: Beech-Jones J

Background

The offender was charged with the murder of a neighbour, who died from a single stab wound to the abdomen inflicted during a late-night street confrontation at Ambarvale on 20 June 2012. The victim had spent the day drinking heavily, arriving at his former de facto partner's home in an extremely intoxicated state (blood alcohol reading of 0.268 g/100 ml), and behaved aggressively in the hours before his death. The offender, who lived next door, armed himself with at least one knife and went into the street after the victim issued threats from outside.

A jury acquitted the offender of murder but returned a guilty verdict on manslaughter. The proceedings then moved to a sentencing hearing, where the central task was determining the precise factual basis on which the manslaughter conviction rested and what sentence was appropriate in all the circumstances.

The offender was taken into custody on the night of the killing, 20 June 2012, and remained in custody throughout.

  • Whether the manslaughter was established by unlawful and dangerous act or by excessive self-defence under s 23 of the Crimes Act 1900 (NSW)
  • What role the offender's intoxication played in the offending, and whether it mitigated or aggravated the conduct
  • How to assess the objective seriousness of the offending given the victim's aggressive and intoxicated behaviour
  • Whether the offender's prior criminal history, psychiatric condition, and prospects of rehabilitation affected the sentence
  • Whether a discount applied for an offer to plead guilty prior to trial
  • Whether special circumstances existed justifying a variation from the standard ratio of non-parole period to total sentence
  • Whether victim impact should be reflected in the sentence

Decision

Beech-Jones J found, on the balance of probabilities, that the offender had deliberately inserted the knife into the victim during the confrontation. The jury's verdict established this beyond reasonable doubt. His Honour determined that the manslaughter was most appropriately characterised as arising from excessive self-defence: the offender had genuinely, if unreasonably, believed he needed to act in self-defence, but the force used was excessive in the circumstances given the victim's highly intoxicated and vulnerable state at the point of the fatal blow.

On intoxication, his Honour found the offender had consumed a significant quantity of bourbon prior to the incident. The offender's intoxication did not negate the deliberate nature of the act, but it was relevant to assessing his culpability. The victim's extreme intoxication was also significant, as it bore on the degree of threat actually posed to the offender at the time.

The court weighed a number of subjective factors. The offender had a prior criminal record, including for violent offending, which told against him. His psychiatric condition and the difficult circumstances of his upbringing were considered, as were his expressed remorse and his offer prior to trial to plead guilty to manslaughter. His Honour accepted that offer warranted a discount on the sentence, though not at the same level as an early guilty plea. Rehabilitation prospects were assessed as modest but not negligible.

Having balanced objective and subjective factors, including the need for deterrence, denunciation, and rehabilitation as required under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour assessed the total sentence at eight years' imprisonment, with a non-parole period of six years. His Honour found no special circumstances sufficient to justify departing from the standard non-parole period ratio.

Orders Made

  • The offender was convicted of the manslaughter of the victim.
  • Sentenced to imprisonment for a total term of eight years.
  • Non-parole period of six years, commencing 20 June 2012 and expiring 19 June 2018.
  • Balance of term of two years, commencing 20 June 2018 and expiring 19 June 2020.
  • Eligible for release on parole on 20 June 2018.
  • The offender was advised of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW) as required by s 25C of that Act, given that manslaughter is a "serious and violent offence" under s 5A.

Key Takeaways

  • Where a jury acquits of murder but convicts of manslaughter, the sentencing court must undertake its own fact-finding to determine the precise legal basis of the manslaughter and the circumstances of the offending, applying the civil standard of proof.
  • Excessive self-defence under s 23 of the Crimes Act 1900 (NSW) can found a manslaughter conviction where the offender genuinely but unreasonably believed defensive action was necessary; the victim's own conduct and level of intoxication are relevant to assessing the degree of threat and the offender's culpability.
  • An offer to plead guilty to manslaughter made before trial, even where the offer is not accepted by the Crown, may warrant a sentencing discount, though generally a lesser one than that available for an early guilty plea.
  • Manslaughter carries a maximum of 25 years' imprisonment under s 24 of the Crimes Act 1900 (NSW), with no standard non-parole period; sentencing courts must assess the wide spectrum of circumstances the offence encompasses by reference to comparable cases.
  • Under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), a sentencing court is obliged to notify an offender when manslaughter, as a "serious and violent offence," brings them within the scope of that legislation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 23, 24, 61, 114, 428C, 558
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 12, 21A, 21A(5AA), 44, 54A
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4
- Crimes and Other Legislation Amendment (Assault and Intoxication) Act 2014 (NSW), Sch 3, item 4

Cases
- Berrier v R [2009] NSWCCA 40
- Butters v R [2010] NSWCCA 1
- Cheung v R [2001] HCA 67; 209 CLR 1
- Griffiths v R (1977) 137 CLR 293
- MAH v R [2006] NSWCCA 226
- R v Blacklidge (NSWCCA, Gleeson CJ, 12 December 1995, unrep)
- R v Isaacs (1997) 41 NSWLR 374
- R v Tuuta [2014] NSWCCA 40