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Supreme Court 22 June 2017

R v Donald William Reeves

[2017] NSWSC 813

HomicidePublic order & justice offences
SENTENCE MANSLAUGHTER WILFUL DISPOSAL OF A BODY COLD CASE MANSLAUGHTER BY EXCESSIVE SELF DEFENCE

Citation: R v Donald William Reeves [2017] NSWSC 813
Court: Supreme Court of New South Wales
Date: 22 June 2017
Judge(s): Campbell J

Background

The offender was charged with the murder of Lyn Tasman Jones, who went missing on 11 June 2009. Mr Jones's skeletal remains were not discovered until October 2013, by bushwalkers in a remote part of the Royal National Park. The remains were clothed in a red polo shirt bearing incisions consistent with stab wounds, and forensic examination supported a finding of foul play.

Police commenced their investigation from a missing person report in July 2009. Despite the absence of a body or direct evidence, Detective Sergeant Todd had identified the offender as the prime suspect by June 2013. In 2015, police used a coordinated media strategy, including a published reward of $100,000, to prompt the offender into making admissions. Covert interception of the offender's mobile phone enabled police to record him making damning statements to an ex-partner, including accounts consistent with killing Jones in circumstances involving a knife confrontation and then disposing of the body.

The offender was arrested in July 2015 and charged with murder. He had offered to plead guilty to manslaughter as early as June 2016, but that offer was initially rejected. The Director of Public Prosecutions ultimately accepted the plea to manslaughter on 8 May 2017, and the offender also pleaded guilty to wilful disposal of a body in circumstances where the death was reportable under the Coroners Act 2009 (NSW).

  • Whether the plea to manslaughter by excessive self-defence under s 421 of the Crimes Act 1900 (NSW) should be accepted, and on what factual basis
  • At what point the offender's conduct transitioned from lawful self-defence to excessive self-defence
  • How sentencing discretion operates for common law offences, including manslaughter, where no standard non-parole period applies
  • What weight should be given to the offender's subjective circumstances, the delay between offence and charge, the utilitarian value of the guilty plea, and the objective seriousness of the offending
  • How the sentences for manslaughter and the wilful disposal offence should be structured, including the extent of accumulation

Decision

Campbell J accepted that the applicable category of manslaughter was manslaughter by excessive self-defence under s 421 of the Crimes Act 1900 (NSW). The offender gave evidence at the sentencing proceedings, providing a direct account of events for the first time. He described Mr Jones pulling a flick knife and lunging at him after an alcohol-fuelled confrontation, believing Jones intended to clear the way to his housemate. The Crown accepted this account as accurate. Campbell J found that, at the outset of the struggle, the offender had a genuine belief that he needed to act in self-defence. The response became excessive once the offender continued to use force after the immediate threat had passed.

On objective seriousness, Campbell J characterised the manslaughter as falling below the mid-range of such offences. The absence of premeditation and the precipitating threat from the deceased were relevant mitigating considerations. However, the subsequent concealment of the body, and the offender's efforts to obstruct the investigation, were seriously aggravating features that increased the overall gravity of the matter.

For common law offences such as manslaughter, Campbell J confirmed that the sentencing discretion is at large: there is no statutory standard non-parole period and the court must have regard to all relevant principles. The judge noted the offender's subjective case was not compelling, though some positive features existed. The offender received a discount for his guilty plea. Without that plea, Campbell J indicated a head sentence of 10 years would have been appropriate for the manslaughter; this was reduced to 7 years and 6 months to reflect the utilitarian value of the plea.

The two sentences were partially accumulated. The wilful disposal of the body offence attracted a fixed two-year term commencing on the date of arrest, 17 July 2015. The manslaughter sentence commenced on 17 July 2016, creating a period of accumulation.

Orders Made

  • Count 2 (wilful disposal of body): Fixed term of 2 years' imprisonment, commencing 17 July 2015 and expiring 16 July 2017
  • Count 1 (manslaughter): Term of 7 years and 6 months' imprisonment, with a non-parole period of 5 years and 4 months commencing 17 July 2016 and expiring 16 November 2021; additional term of 2 years and 2 months expiring 16 January 2024
  • Total effective sentence: 8 years and 6 months, expiring 16 January 2024
  • Effective non-parole period after partial accumulation: 6 years and 4 months
  • First eligible for parole: 16 November 2021
  • The offender was warned that the Crimes (High Risk Offenders) Act 2006 (NSW) may apply to him following expiration of his sentences

Key Takeaways

  • Manslaughter by excessive self-defence under s 421 of the Crimes Act 1900 (NSW) arises where an offender genuinely believed self-defence was necessary but used force that was not reasonably proportionate. The sentencing court must identify when lawful self-defence transitioned into excessive force to assess the degree of moral culpability.
  • For common law offences including manslaughter, the sentencing discretion is at large. No standard non-parole period applies, and the court must weigh all relevant principles without the structuring effect of a statutory benchmark.
  • Concealment of the body and active steps to impede a police investigation constitute serious aggravating factors in a manslaughter sentencing, capable of elevating the overall assessment of the offending beyond what the circumstances of the killing alone might warrant.
  • A guilty plea, even where made by an offender who had previously exercised his right to silence, attracts a sentencing discount reflecting its utilitarian value. Here, the plea reduced the head sentence from 10 years to 7 years and 6 months.
  • The Supreme Court emphasised that release at the expiration of a non-parole period is neither automatic nor a foregone conclusion, remaining subject to the independent decision of the State Parole Authority.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 421 (manslaughter by excessive self-defence)
- Coroners Act 2009 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases:
- Blackstock v R [2013] NSWCCA 172
- Jansen v R [2013] NSWCCA 301
- Jaturawong v R [2011] NSWCCA 168
- Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120
- R v Blacklidge (unreported, 12 December 1995, NSWCCA)
- R v Borkowski (2009) 195 A Crim R 1
- R v Bryan Steven Johnson [2003] NSWCCA 129
- R v Davis (1942) 42 SR (NSW) 263
- R v Dawes [2004] NSWCCA 363
- R v Hamilton; R v Sandilands [2007] NSWSC 452
- R v Hoerler (2004) 147 A Crim R 520
- R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280
- R v Isaacs (1997) 41 NSWLR 374
- R v Misiepo [2016] NSWSC 565
- R v Oinonen [1999] NSWCCA 310
- R v Olbrich (1999) 199 CLR 270
- Smith v R [2011] NSWCCA 110
- Smith v R [2015] NSWCCA 193
- The Queen v Kilic [2016] HCA 48