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2
Supreme Court 16 February 2016

R v Towney (No 2)

[2016] NSWSC 97

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER INTENTION TO KILL KNIFE WOUNDS NOT GUILTY PLEA

Citation: R v Towney (No 2) [2016] NSWSC 97
Court: Supreme Court of NSW
Date: 16 February 2016
Judge(s): Fagan J

Background

The offender, a 20-year-old man, hosted a gathering at his home in Gilgandra in the early hours of 20 July 2013. The deceased, aged 21, had been asked to leave the party after making guests uncomfortable. He returned before 3am and became involved in a physical altercation at the front door with the offender's sister.

The offender joined in a fist fight with the deceased on the road outside, but stopped, announced he was going to get a knife, and walked approximately 25 metres back inside his house to retrieve a large kitchen knife. Despite being urged by a friend to calm down, he returned outside, pursued the deceased, who had begun to walk away, and stabbed him. The fatal wound was delivered to the neck with a near-full-length blade strike, severing both carotid arteries, the trachea, and partially transecting the aorta and oesophagus. The deceased died shortly after.

The offender pleaded not guilty to murder but guilty to manslaughter. After trial before an 11-person jury (one juror having been discharged mid-trial due to a conflict), he was convicted of murder. The proceeding before Fagan J at this stage was sentencing.

  • Whether the jury was correct to reject the partial defence of provocation, given the deceased's conduct on returning to the party
  • Whether the partial defence of excessive self-defence had any application
  • What sentence was appropriate for the murder, having regard to the objective seriousness of the offence, the offender's personal circumstances, and the need for consistency with comparable cases
  • What weight to give to the offender's disadvantaged background, prior criminal record, absence of remorse, and the fact the offence was committed in the presence of a child while the offender was on conditional liberty

Decision

The jury rejected provocation and, by implication, any suggestion of excessive self-defence. Fagan J accepted the Crown case in full. The offender had formed an intention to kill before retrieving the knife, had been warned by a bystander to stop, had pursued the deceased after he was walking away, and had delivered a deliberate, near-fatal strike before inflicting additional wounds. The court found that the offender's claim of not remembering the events was not accepted and that no genuine loss of self-control was established.

On sentencing, the court assessed the objective gravity of the offence as very high. The offender had armed himself with a weapon from inside his home, pursued a retreating victim, and attacked with clear intent to kill. The offence was committed while the offender was on conditional liberty, and in the presence of a child.

The court considered the offender's subjective circumstances at length, including a severely disadvantaged background marked by parental substance abuse, poverty, domestic violence, and exposure to a community with endemic alcohol misuse. Applying the principles in Bugmy v The Queen and R v Fernando, the court gave weight to this background but noted it did not diminish the gravity of a premeditated, armed attack on a retreating person. The offender's criminal history, the absence of any remorse or insight, and his failure to accept responsibility were factors that weighed against leniency.

Having surveyed comparable sentencing decisions, including R v Mbele, R v Barlow, and R v Hines (No 3), Fagan J arrived at a non-parole period of 18 years, with a balance of term of 6 years, for a total sentence of 24 years. The court identified this sentence as consistent with the range established by comparable cases, reflecting both the seriousness of the offending and the relevant subjective factors.

Orders Made

  • The offender sentenced to a non-parole period of 18 years, commencing 24 December 2014 and expiring 23 December 2032
  • Balance of term of 6 years, commencing 24 December 2032 and expiring 24 December 2038
  • The offender eligible for parole at expiry of the non-parole period
  • The offender notified under s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that its provisions apply to him

Key Takeaways

  • A deliberate decision to retrieve a weapon from inside a home and pursue a retreating victim is a strong indicator of intention to kill and significantly elevates the objective seriousness of a murder.
  • Provocation under the pre-2014 form of s 23 of the Crimes Act 1900 (NSW) requires both an actual loss of self-control and that the conduct relied upon could have caused a reasonable person in the offender's position to lose control; a fist fight that had ended and a retreating deceased calling out a threat were insufficient to raise a reasonable possibility of either element.
  • Under the principles in Bugmy v The Queen (2013) 249 CLR 571, a severely disadvantaged background remains a relevant mitigating consideration in sentencing, even for serious violent offences, though its weight is assessed against the full circumstances of the offending.
  • Sentencing courts in NSW must have regard to consistency with comparable cases; Fagan J undertook a detailed review of numerous murder sentences involving knife attacks and assessed the appropriate range before arriving at a 24-year total sentence with an 18-year non-parole period.
  • Committing a serious offence while on conditional liberty and in the presence of a child are statutory aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) that the sentencing court is required to consider.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 23 (provocation, pre-2014 form)
- Crimes Amendment (Provocation) Act 2014 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- R v Fernando (1992) 76 A Crim R 58
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Wilson v R [1992] HCA 31; (1992) 174 CLR 313
- Wong v The Queen (2001) 207 CLR 584
- R v Mbele [2013] NSWSC 1394
- R v Barlow [2013] NSWSC 217
- R v Hines (No 3) [2014] NSWSC 1273
- R v Hunt [2014] NSWSC 1919
- ZZ v R [2013] NSWCCA 83
- Collon v R [2009] NSWCCA 187
- R v Jones [2012] NSWSC 1433
- R v O'Donnell [2009] NSWSC 42
- Beldon v R [2012] NSWCCA 194
- JB v R [2012] NSWCCA 12
- R v Shee [2012] NSWSC 1422
- R v Shiels [2011] NSWSC 1177
- Carr v R [2009] NSWSC 995