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Supreme Court 8 April 2016

R v Anderson

[2016] NSWSC 399

HomicideDomestic & family violence
SENTENCING MANSLAUGHTER BELIEF OF NEED TO ACT IN SELF DEFENCE OFFENCE OF EXCESSIVE SELF

Citation: R v Anderson [2016] NSWSC 399
Court: Supreme Court of New South Wales
Date: 8 April 2016
Judge: Hall J

Background

The offender was charged with murdering his partner, Allira Green, on 3 August 2013 at a unit in Maroubra. Ms Green was 23 years old and approximately five to six months pregnant with the offender's child at the time of her death. The offender and Ms Green had been in a volatile relationship since early 2013, and in the days before the incident they had exchanged numerous heated text messages and phone calls.

In the early hours of 3 August 2013, the offender forced his way into a unit where Ms Green was visiting friends. He was aggressive and unwelcome. He grabbed one of the women present by the neck and pushed her, causing all three women in the room to fall to the floor. Ms Green then retrieved a kitchen knife from a drawer and moved towards the offender with it held above her head. During the brief struggle that followed, the offender grabbed the knife from Ms Green and stabbed her once in the chest. The wound was approximately 150mm deep, penetrating the chest wall and the upper portion of her heart. Ms Green died at the scene.

After a first trial ended in a hung jury, the matter was relisted for retrial. On the second day of that retrial, the Crown accepted the offender's plea of guilty to manslaughter on the basis of excessive self-defence, in full discharge of the murder indictment. The proceedings before Hall J concerned sentencing for that offence.

  • What was the appropriate sentence for manslaughter by excessive self-defence, given the particular factual circumstances?
  • To what degree did the offender's response to Ms Green approaching him with a knife reduce the objective seriousness of the offence?
  • What weight should be given to subjective factors, including the offender's background, mental health, and guilty plea?
  • How should the court apply the statutory sentencing framework, including the discount for the guilty plea and the non-parole period ratio?

Decision

Hall J found that the offence involved a high order of objective criminality. The Crown's submission was accepted: the fact that Ms Green approached with a knife did not significantly reduce the objective seriousness in the circumstances. Critically, Ms Green's actions were not unprovoked. They were a direct response to the offender's own aggressive and violent conduct, including his forced entry, threatening words, and physical assault on the other women present. The offender was physically larger than Ms Green (180cm compared to 165cm), and she was heavily pregnant.

Hall J found that the circumstances had materially changed between the offender's initial aggression and the moment he stabbed Ms Green. While the offender believed he needed to act in self-defence when Ms Green came at him with the knife, his response was grossly disproportionate. The offender had wrested the knife from Ms Green before inflicting the fatal wound, and there was no suggestion she retained any capacity to harm him at the point of the stabbing. His use of ice and Xanax prior to the incident was also noted, though the court treated this as a neutral or aggravating factor rather than a mitigating one.

On subjective matters, the court acknowledged relevant factors including the offender's background, psychological evidence from Professor Stephen Woods, and his guilty plea at the retrial. Hall J applied a 20 percent discount for the guilty plea. The court took a starting point of 16 years imprisonment, reduced to 12 years and 9 months after the plea discount. Applying the statutory ratio, 75 percent of that term was set as the non-parole period.

Hall J also informed the offender of the operation of the Crimes (High Risk Offenders) Act 2006, noting that the State may apply to the Supreme Court for continued supervision or detention beyond the sentence's expiry if the offender is found to pose an unacceptable risk of committing a serious violence offence.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 12 years and 9 months.
  • Non-parole period of 9 years and 6 months, commencing 3 August 2013 and expiring 2 February 2023.
  • Balance of term of 3 years and 3 months, expiring 2 May 2026.
  • The offender becomes eligible for release on parole on 2 February 2023.

Key Takeaways

  • Manslaughter by excessive self-defence can still attract a high order of objective criminality even where the deceased was holding a knife at the time of the fatal act, particularly where the offender's own prior conduct provoked that response.
  • Where the changed circumstances between an offender's initial aggression and the moment of the fatal act are relevant, the court will examine the full sequence of events rather than assessing the offender's response to the immediate threat in isolation.
  • A guilty plea entered at the commencement of a retrial attracted a 20 percent discount in this case, reflecting the utilitarian value of the plea even though it came late in the proceedings.
  • Under s 421 of the Crimes Act 1900, excessive self-defence manslaughter requires that the offender used lethal force believing it was necessary for self-defence, but that the conduct was not a reasonable response in the circumstances as the offender perceived them.
  • Sentencing courts are required to inform offenders convicted of serious violence offences of the existence of the Crimes (High Risk Offenders) Act 2006, which allows the State to seek continued detention or supervision beyond the expiry of the sentence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 24, 421
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Aslett v R [2006] NSWCCA 360
- Grant v R [2014] NSWCCA 67
- Hiron v R [2007] NSWCCA 336
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v R (2011) 244 CLR 120
- Pitts v R [2014] NSWCCA 244
- R v AEM [2002] NSWCCA 58
- R v Blacklidge (Court of Criminal Appeal, 12 December 1985, unreported)
- R v Dawes [2004] NSWCCA 363
- R v Edigarov [2001] 125 A Crim R 551
- R v Forbes [2005] NSWCCA 377
- R v Hamid [2006] NSWCCA 302
- R v Hillsley [2006] NSWCCA 312
- R v Loveridge [2014] NSWCCA 120
- R v Moysten [2004] NSWCCA 97
- R v Oinonen [1999] NSWCCA 310
- R v Palu [2002] 134 A Crim R 174
- R v Pennisi [2001] NSWCCA 326
- R v Previtera (1997) 94 A Crim R 76
- R v Qutami [2001] 127 A Crim R 369