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Supreme Court 19 February 2016

R v Misiepo

[2016] NSWSC 565

Assault & violenceHomicide
SENTENCING EXCESSIVE SELF DEFENCE MANSLAUGHTER VICTIM WAS NOT ARMED THE RESPONSE WAS AN EXTREME ONE DEFENCE WAS OF A HIGH ORDER

Citation: R v Misiepo [2016] NSWSC 565
Court: Supreme Court of New South Wales
Date: 19 February 2016
Judge: Hall J

Background

The offender was convicted of the manslaughter of a 44-year-old man in the early hours of New Year's Day 2014 in Port Macquarie. A jury acquitted him of murder but found him guilty of manslaughter. The victim had driven to the scene after his partner returned home and told him she had been pushed to the ground by the offender earlier that evening.

The offender, who was 33 years old and described as fit and heavily muscled, armed himself with a replica handgun and a knife. His stated apprehension was that the victim might be a member of the Bandidos outlaw motorcycle club, following comments the victim's partner had made as she left. In fact, the victim was unarmed.

The defence case at trial was that a third man, Reece Barnes, had inflicted the fatal wounds. The jury rejected that account. The sentencing hearing proceeded on the basis that the offender produced the knife and stabbed the victim three times as the victim walked backwards down the street, retreating with his hands down and not acting aggressively at the time of the stabbings.

  • How should the court assess the objective gravity of manslaughter by excessive self-defence where the offender was the aggressor?
  • How far did the offender's response exceed what would have been a reasonable response, assessed on the circumstances as the offender perceived them?
  • What weight should be given to the offender's prior criminal history, including serious violence offences, when determining the starting point for sentence?
  • Whether a discount for cooperation with authorities applied, and what discount was warranted.
  • How to treat the commencement date of the sentence, given the offender's parole had been revoked before the offending occurred.
  • Whether the related common assault charge should be determined in the same proceedings or remitted to the Local Court.

Decision

Hall J found that the objective gravity of this manslaughter was high. The offender had armed himself in anticipation of a confrontation he perceived might involve outlaw motorcycle gang members. When the victim arrived, the victim was unarmed. The offender, rather than retreating, advanced towards the victim in a threatening manner. The victim was walking backwards and retreating with his hands down when the offender stabbed him three times. One wound penetrated the aorta and required a moderate degree of force to pass through a rib.

His Honour found the offender's response was extreme, not merely excessive. The offender intended to inflict grievous bodily harm. The fact that the victim had thrown a punch earlier in the altercation did not displace the conclusion that, at the moment of the stabbings, it was the offender who was the aggressor pursuing a retreating, unarmed man.

The offender's prior record weighed significantly against him. He had a history of serious personal violence offences, including previous convictions that had resulted in substantial custodial sentences. The court found there were limited mitigating factors. Some discount was applied for the offender's assistance to authorities. His Honour determined a 20% discount was appropriate, reducing the starting point of 15 years' imprisonment to a term of 12 years.

On the commencement date, Hall J accepted that some limited concurrency was appropriate because the offender's custody from 6 January 2014 was partly referable to his arrest for the subject offence and partly to a pre-existing parole revocation. A concurrency of two months was allowed. The assault charge involving the victim's partner was not resolved at the sentencing hearing, as the offender maintained a not-guilty plea, and the evidence at trial had not focused on that incident. Hall J concluded the charge should be remitted to the Local Court if the Crown chose to proceed with it, and granted leave to the parties to make further application regarding its disposition.

Orders Made

  • The offender was sentenced to a total term of imprisonment of 12 years:
  • Non-parole period of 9 years, commencing 28 July 2014 and expiring 27 July 2023.
  • Balance of term of 3 years, expiring 27 July 2026.
  • First day eligible for release to parole: 28 July 2023.
  • No variation to the statutory ratio of non-parole to parole periods was made; no special circumstances were found under s 44 of the Crimes (Sentencing Procedure) Act 1999.
  • The common assault charge was remitted to the Local Court pursuant to s 169 of the Criminal Procedure Act 1986, subject to the Crown's election to proceed.
  • Leave was granted to the parties to make further application to the Supreme Court concerning the hearing and disposition of the assault charge.

Key Takeaways

  • Manslaughter by excessive self-defence occupies the higher range of objective seriousness when the offender was the aggressor, was armed, pursued a retreating and unarmed victim, and intended to inflict grievous bodily harm.
  • The court assessed how far the response exceeded what would have been reasonable on the circumstances as the offender subjectively perceived them, and found the response extreme rather than marginally excessive.
  • A prior record of serious personal violence offences is a significant factor that weighs against the offender in determining the sentencing starting point, consistent with the principles applied in cases such as R v Blacklidge and R v Lavender.
  • Under s 44 of the Crimes (Sentencing Procedure) Act 1999, the statutory ratio of non-parole to parole periods applies unless special circumstances are established; no such circumstances were found here.
  • Where a related charge remains contested and the trial evidence did not address it, the Supreme Court may decline to deal with that charge at the sentencing hearing and instead remit it to the Local Court under s 169 of the Criminal Procedure Act 1986.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 44
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW), including ss 165 and 169

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 571
- Markarian v R (2005) HCA 25; 228 CLR 357
- Pitts v R [2014] NSWCCA 244
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v Callaghan [2006] NSWCCA 58; (2006) 160 A Crim R 145
- R v Forbes [2005] NSWCCA 377
- R v Lavender (2005) 222 CLR 67
- R v MacDonell (NSWCCA, 8 December 1995, unreported)
- R v Misiepo [2005] NSWCCA 405
- R v Oinonen [1999] NSWCCA 310
- R v Olbrich (1999) 199 CLR 270
- R v Pennisi [2001] NSWCCA 326
- R v Thomson; R v Houlton [2000] NSWCCA 309; 115 A Crim R 104
- Smith v R [2015] NSWCCA 193