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Supreme Court 24 March 2017

R v Hadchiti

[2017] NSWSC 292

Assault & violenceHomicide
CRIMINAL LAW SENTENCE EXCESSIVE SELF DEFENCE MANSLAUGHTER POSITIVE SUBJECTIVE CASE REMORSE

Citation: R v Hadchiti [2017] NSWSC 292
Court: Supreme Court of New South Wales
Date: 24 March 2017
Judge: N Adams J

Background

The offender, a 20-year-old man, killed the boyfriend of his sister during a violent altercation at his family's semi-rural property in Londonderry on 30 October 2011. The deceased had arrived at the property to collect his girlfriend's two young children. A struggle broke out during which the deceased attacked the offender's mother, stabbed the offender in the arm, and was ultimately killed when the offender cut his throat with a knife.

The offender was originally convicted of murder following a trial in November 2013. The Court of Criminal Appeal quashed that conviction in April 2016 and ordered a new trial. The offender then offered to plead guilty to manslaughter, which the Crown accepted in full satisfaction of the indictment.

The basis for the manslaughter plea was excessive self-defence under s 421 of the Crimes Act 1900 (NSW). That partial defence applies where an offender believed his conduct was necessary to defend himself or another person, but the conduct was not a reasonable response in the circumstances as he perceived them. It reduces what would otherwise be murder to manslaughter.

  • What was the appropriate sentence for manslaughter by excessive self-defence, having regard to the objective seriousness of the offending?
  • How should the court resolve a factual dispute between the parties regarding the use of a metal chair frame during the struggle?
  • What discount, if any, was warranted for the guilty plea, given the procedural history?
  • Whether special circumstances existed to justify varying the standard statutory ratio between the non-parole period and the head sentence.

Decision

Adams J found this to be a serious example of manslaughter by excessive self-defence. The killing involved multiple serious injuries, including a deep gaping wound to the throat inflicted with what the forensic pathologist described as a sawing motion. Notwithstanding the context of a confrontation initiated by the deceased, the nature and extent of the fatal wound was a significant aggravating feature of the offending.

On the factual dispute, the Crown contended that the offender struck the deceased with a metal chair frame, relying on the force required to cause the head injuries and the presence of the offender's DNA on the chair legs. The offender maintained that the deceased struck the frame when tackled. The court was required to resolve this dispute on the balance of probabilities, applying the principle that facts adverse to an offender must be established by the Crown.

On the subjective side, the court found a positive case in the offender's favour. He was 20 years old at the time of the offence, had no prior criminal history, demonstrated genuine remorse, and had good prospects of rehabilitation. The court also took into account the significant delay between the offence and sentencing, and the fact that this was the offender's first time in custody.

Adams J applied a discount of just over 13% to reflect the guilty plea, acknowledging the utilitarian value of the plea entered in the context of a re-trial following a successful appeal. The court found special circumstances based on the offender's youth and his first-time custodial status, justifying a departure from the standard non-parole period to head sentence ratio.

Orders Made

  • The offender was convicted of the manslaughter of the deceased.
  • A non-parole period of seven years was set, commencing 14 October 2013 and expiring 13 October 2020.
  • An additional term of three years was set, commencing 14 October 2020 and expiring 13 October 2023.
  • The sentence was taken to have commenced on 14 October 2013.
  • The offender was noted to be eligible for release on parole on 13 October 2020.
  • The offender was advised of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), as manslaughter is a "serious violence offence" under that legislation.

Key Takeaways

  • Manslaughter by excessive self-defence, even where the deceased was the initial aggressor, can constitute a serious example of the offence warranting a substantial custodial sentence, particularly where the fatal injuries are extensive and the lethal act goes significantly beyond what was necessary for defence.
  • A guilty plea entered after a successful appeal and in anticipation of a re-trial still attracts a utilitarian discount, though the extent of that discount will reflect the circumstances in which the plea was offered.
  • Special circumstances justifying a variation to the standard non-parole period ratio can be established by a combination of the offender's youth and the fact that it is their first period in custody, even in a serious offence.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), the purposes of sentencing are overlapping and not ranked, requiring the sentencing court to balance punishment, deterrence, accountability, and rehabilitation through a process of instinctive synthesis.
  • Manslaughter is a "serious violence offence" for the purposes of the Crimes (High Risk Offenders) Act 2006 (NSW), and sentencing courts are obliged under s 25C of that Act to advise offenders of the existence and potential application of that legislation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 24, 421
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28, 44

Cases
- Hadchiti v R [2016] NSWCCA 63
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- R v Lavender (2005) 222 CLR 67; [2005] HCA 37
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Simpson (2001) 53 NSWLR 704
- R v Blacklidge (unreported, NSWCCA, 12 December 1995)
- Cioban v The Queen (2003) 139 A Crim R 265; [2003] NSWCCA 304
- R v Fidow [2004] NSWCCA 172
- R v Trevenna (2004) 149 A Crim R 505; [2004] NSWCCA 43
- R v Hillsley (2006) 164 A Crim R 252
- Salah v R [2009] NSWCCA 2
- Stewart v R [2009] NSWCCA 151
- R v Huang [2015] NSWSC 375
- R v Sabra [2015] NSWCCA 38
- R v Smith [2015] NSWCCA 193