Citation: Misiepo v R [2017] NSWCCA 210
Court: Court of Criminal Appeal, NSW
Date: 1 September 2017
Judge(s): Macfarlan JA (with Johnson J and Harrison J agreeing)
Background
The applicant was tried for the murder of a man in Port Macquarie in the early hours of New Year's Day 2014. He had raised self-defence at trial. The jury returned verdicts of not guilty of murder but guilty of manslaughter, a result that indicated the jury accepted the applicant's conduct amounted to excessive self-defence under s 421 of the Crimes Act 1900 (NSW): that is, the applicant believed he needed to defend himself, but his response went beyond what was reasonably necessary in the circumstances as he perceived them.
The deceased, who was unarmed, had driven to the street after his partner told him she had been pushed to the ground by the applicant during an earlier encounter. When the deceased arrived, a physical confrontation occurred. The applicant stabbed the deceased three times in the chest, inflicting the fatal wound by penetrating the aorta.
The sentencing judge imposed 12 years' imprisonment with a non-parole period of nine years, applying a 20 per cent discount in recognition of the applicant's pre-trial offer to plead guilty to manslaughter. The applicant sought leave to appeal against that sentence.
Legal Issues
- Whether it was open to the sentencing judge to find beyond reasonable doubt that, in the immediate lead-up to the stabbing, the applicant was advancing aggressively toward the deceased rather than acting defensively.
- Whether the sentencing judge erred in his findings about the degree to which the applicant's conduct exceeded a reasonable response to the circumstances as the applicant perceived them.
- Whether the sentence of 12 years' imprisonment was manifestly excessive.
Decision
On Ground 2, the Court of Criminal Appeal rejected the applicant's argument that the "critical finding" (that he had moved aggressively toward the deceased before stabbing him) was not open on the evidence. Witness evidence from a resident who observed the altercation described the applicant as attacking the deceased in an aggressive manner, with the deceased walking backwards trying to disengage. The Court found it was open to the sentencing judge, on that evidence, to make the impugned finding beyond reasonable doubt.
On Ground 4, the Court found no error in the sentencing judge's assessment of the degree to which the applicant's conduct exceeded a reasonable response. The sentencing judge's characterisation of the response as "quite extreme, indeed heinous" was held to be well justified. The Court accepted that the applicant had a high level of fear arising from the confrontation with a larger man who may have been associated with an outlaw motorcycle club, but noted the deceased was entirely unarmed and had been retreating at the time he was stabbed.
On Ground 5, the Court dismissed the manifest excess argument. Pointing to the High Court's guidance in Hili, Dinsdale, and Wong, the Court confirmed that demonstrating a sentence is markedly different from other sentences is insufficient. An appellate court will intervene only where the difference is so pronounced that it must reflect a misapplication of principle. Comparing the present case to Smith v R [2015] NSWCCA 193, where a sentence was reduced in part because the applicant genuinely (though mistakenly) believed the deceased was armed with a gun, the Court noted the applicant here faced no such comparable mitigating circumstance: the deceased was not armed at all.
Orders Made
- The application for leave to appeal against sentence was dismissed.
Key Takeaways
- A jury's verdict of manslaughter based on excessive self-defence does not prevent a sentencing judge from making additional factual findings about the manner of the offending, provided those findings are established beyond reasonable doubt on the evidence at trial.
- Under s 421 of the Crimes Act 1900 (NSW), excessive self-defence manslaughter involves conduct that exceeds a reasonable response in the circumstances as the offender perceived them; the degree of that excess remains a critical sentencing consideration.
- The Court of Criminal Appeal confirmed that manifest excess requires more than demonstrating a sentence is at the high end or differs markedly from comparable cases; the difference must be so striking as to imply a misapplication of principle, even where the error cannot be precisely identified.
- In dismissing the appeal, the Court treated the absence of any weapon on the part of the deceased as a significant factor distinguishing this case from prior decisions where a mistaken but genuine belief in armed threat had been accepted as substantially mitigating.
- A pre-trial offer to plead guilty to a lesser offence can attract a sentencing discount even where the accused contested the more serious charge to verdict, consistent with established sentencing principles regarding recognition of utilitarian value.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 418 (self-defence), 421 (excessive self-defence), 24 (maximum penalty for manslaughter)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Field v R [2015] NSWCCA 332
- Goundar v R [2012] NSWCCA 87
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Ramos v R [2015] NSWCCA 313
- Smith v R [2015] NSWCCA 193
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64