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18
Court of Criminal Appeal 17 July 2015

Smith v R

[2015] NSWCCA 193

Homicide
APPEAL SENTENCE MANSLAUGHTER BY SHOOTING SELF CRIMES ACT 1900 (NSW), S 421 ERROR ESTABLISHED

Citation: Smith v R [2015] NSWCCA 193
Court: NSW Court of Criminal Appeal
Date: 17 July 2015
Judges: Leeming JA, Simpson JA, Hamill J

Background

The applicant was convicted of manslaughter following a jury trial in the Supreme Court. He had shot and killed a close friend during a planned confrontation in January 2013. The jury returned a verdict of not guilty of murder but guilty of manslaughter, accepting the partial defence of "excessive self-defence" under s 421 of the Crimes Act 1900 (NSW). That provision reduces murder to manslaughter where a person believes lethal force is necessary in self-defence, but where the conduct was not objectively a reasonable response in the circumstances as perceived by the accused.

At the trial, the applicant gave evidence that, at the moment he fired, he believed the deceased was retrieving a gun from beneath his shirt. The deceased was in fact armed only with concealed knuckledusters. The applicant was 22 years old at the time and had been using methylamphetamine throughout the preceding day.

Garling J sentenced the applicant to 12 years' imprisonment with a non-parole period of 9 years, having reduced the sentence by 25 per cent in recognition of an early offer to plead guilty to manslaughter. The applicant sought leave to appeal, arguing that the sentencing judge had failed to properly identify the circumstances as he perceived them, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to identify, as a finding of fact, that the applicant believed the deceased was armed with a gun at the moment of the shooting.
  • Whether that omission affected the assessment of the unreasonableness of the applicant's response, a central feature of the s 421 partial defence.
  • Whether the applicant's perceived belief in an imminent threat of being shot constituted a significantly mitigating factor for sentencing purposes.
  • Whether the sentence of 12 years' imprisonment was manifestly excessive in light of any identified error.

Decision

Simpson JA (with whom Leeming JA and Hamill J agreed) identified error in the sentencing judge's approach. Specifically, the sentencing judge had omitted to find that the applicant perceived the deceased was armed with a gun and was willing to use it. That finding was, on the evidence, a necessary implication of the jury's verdict: the jury had accepted the applicant's honest belief that lethal force was necessary, while rejecting that his response was objectively reasonable. Without that factual foundation, the sentencing judge's evaluation of the unreasonableness of the applicant's conduct was incomplete.

The Court held that this omission constituted error. The applicant's genuine (if mistaken) belief that he was about to be shot was characterised as a significantly mitigating circumstance. The Court noted it was beside the point that another jury might have been more sceptical of that evidence.

The Court also observed that the applicant's background of emotional and physical deprivation, as disclosed in the psychiatric evidence, was a modestly mitigating factor relevant to moral culpability, consistent with the High Court's approach in Bugmy v The Queen. The Crown's submission that there was a virtual absence of mitigating features was not accepted in full.

On re-sentencing, the Court reduced the head sentence from 12 years to 10 years and the non-parole period from 9 years to 7 years and 6 months. The Court acknowledged that, because manslaughter arises in infinitely varied circumstances, earlier sentences offer limited comparative guidance.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed; sentence imposed on 8 August 2014 quashed.
  • The applicant re-sentenced to imprisonment with a non-parole period of 7 years and 6 months, commencing 12 February 2013 and expiring 11 August 2020, with a balance of term of 2 years and 6 months expiring 11 February 2023.

Key Takeaways

  • Under s 421 of the Crimes Act 1900 (NSW), a sentencing court dealing with excessive self-defence manslaughter must affirmatively identify the circumstances as the accused perceived them, not merely assess the objective unreasonableness of the response in the abstract.
  • Where a jury's verdict of manslaughter under s 421 necessarily implies that the accused held a genuine belief in imminent lethal threat, the sentencing court is required to treat that perceived threat as an established fact, even if the belief was mistaken.
  • The Court of Criminal Appeal confirmed that an accused's honest (though objectively unreasonable) belief that they were about to be shot constitutes a significantly mitigating factor in sentencing.
  • A background of emotional and physical deprivation, as established through psychiatric evidence, remains relevant to assessing moral culpability at sentence, consistent with Bugmy v The Queen [2013] HCA 37.
  • Given the wide variety of circumstances in which manslaughter is committed, the Court reiterated that previously imposed sentences for manslaughter provide limited guidance when re-sentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 418, 419, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, s 21A(3)(c)

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Davis v R [2015] NSWCCA 90
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Forbes [2005] NSWCCA 377; 160 A Crim R 1