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Supreme Court 21 December 2016

R v Jarrod Mitchell

[2016] NSWSC 1855

Homicide
SENTENCING MANSLAUGHTER EXCESSIVE SELF DEFENCE

Citation: R v Jarrod Mitchell [2016] NSWSC 1855
Court: Supreme Court of New South Wales
Date: 21 December 2016
Judge: Adams J

Background

The offender was charged with murdering a friend, Alex, at Rosebery on 23 March 2015. The evidence showed that Alex had spent the day in an agitated state, telling his employer he intended to fight the offender that evening. That night, Alex attended the offender's home uninvited, repeatedly banging on both the front and back doors, shouting aggressively and sending a series of threatening text messages demanding the offender come outside.

The offender ultimately confronted Alex, and a physical altercation occurred. The Crown accepted that the offender acted in self-defence but that the force used was objectively excessive, reducing the charge to manslaughter. The offender entered a plea of guilty to manslaughter on 12 December 2016.

The sentencing proceedings required the court to determine the appropriate sentence, having regard to the circumstances of the offending, the offender's background, his psychological state, and the profound impact of Alex's death on his family.

  • Whether the guilty plea to manslaughter by excessive self-defence should be permitted to stand, given that the court harboured doubts about whether the force was truly unreasonable
  • The appropriate sentencing discount for the guilty plea entered on 14 November 2016
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting a variation of the standard non-parole period ratio
  • The weight to be given to the offender's youth, psychological history, and prospects of rehabilitation
  • The proper accounting of the offender's pre-sentence custody (296 days)

Decision

Adams J expressed genuine reservations about the factual basis of the plea. The circumstances were such that the court doubted whether the force used was truly unreasonable, given the nature of Alex's persistent aggression and the confrontation that followed. However, the court concluded that the offender was entitled to admit the element of excessive force by entering the plea, and accordingly allowed the plea to stand, sentencing him on the basis that the force used was objectively excessive even though he believed it necessary for his own defence.

A discount of approximately 10 per cent was applied for the guilty plea, which was offered on 14 November 2016 and avoided what would likely have been a two-week trial. The court noted the plea was not entered at the earliest opportunity, limiting the discount available.

The court found that special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), having regard to the offender's relative youth and his psychological issues. This justified varying the standard ratio between the non-parole period and the total sentence, extending the period of supervised parole.

On the question of future risk, the court noted that while the offender had some prior matters involving low-level violence, the offending arose from unforeseen circumstances unlikely to recur. The court was satisfied the offence was an aberration and expressed confidence the offender would not reoffend in this way. The victim impact statements from Alex's mother and sister were read to the court, and Adams J acknowledged the profound, ongoing grief suffered by the family.

Orders Made

  • The offender was sentenced to an overall term of 3 years and 6 months imprisonment, commencing 1 March 2016
  • Non-parole period of 2 years, ending 28 February 2018, after which the offender is to be released on parole

Key Takeaways

  • A guilty plea to manslaughter by excessive self-defence may be accepted by the Crown and permitted to stand by the court even where the sentencing judge harbours doubts about whether the force was truly unreasonable, because the offender is entitled to make such an admission by plea.
  • Where a plea is entered at a relatively late stage, the sentencing discount for utilitarian value is modest; the Supreme Court here allowed approximately 10 per cent.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be established by a combination of the offender's youth and psychological difficulties, justifying a departure from the standard non-parole period ratio.
  • The court treated the offending as an aberration in the context of a limited prior record of low-level violence, finding a low likelihood of reoffending despite those antecedents.
  • Victim impact statements were received and acknowledged, but the court confirmed that the sentence must be determined according to the evidence and applicable legal principles, not by the weight of the family's grief.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 (special circumstances)

Cases cited: None stated in the judgment.