Citation: R v Patel (No 3) [2018] NSWSC 952
Court: Supreme Court of New South Wales
Date: 22 June 2018
Judge: Lonergan J
Background
The offender, a woman originally from Gujarat, India, had been in a close personal and sexual relationship with a man who subsequently became engaged to the deceased, a young woman who had travelled from India to Sydney in July 2013 to begin her new life with her fiancé. Within 25 days of her arrival, the deceased was dead.
The offender was charged with murder. A first trial in 2015 resulted in a murder conviction, but that verdict was quashed on appeal because the self-defence direction given to the jury was incorrect. At a retrial in early 2018, the jury acquitted the offender of murder but convicted her of manslaughter.
The Crown had alleged premeditated, jealousy-motivated murder while the deceased slept. The offender's account was that the deceased had summoned her to the flat and attacked her with a knife, prompting a physical struggle during which the offender strangled and suffocated her. The jury's verdict indicated acceptance that the offender believed she was acting in self-defence, but that her response was disproportionate to the circumstances as she perceived them.
Legal Issues
- Whether the partial defence of excessive self-defence under s 421 of the Crimes Act 1900 (NSW) was made out, reducing the offence from murder to manslaughter.
- What facts could properly be found for sentencing purposes consistently with the jury's verdict, applying the standards from R v Olbrich and Weininger v R.
- What sentence was appropriate for manslaughter by excessive self-defence, having regard to the objective and subjective features of the offence, including peri-mortem stab wounds that did not cause death.
- Whether a discount should be applied for an offer to plead guilty made before the first trial.
Decision
Lonergan J accepted that the jury's verdict required a finding that the offender believed her conduct was necessary to defend herself, but that the response was not reasonable in the circumstances as she perceived them. The cause of death was strangulation and suffocation. Although the offender also inflicted two stab wounds to the deceased's abdomen, medical evidence established these were not a cause of death, and the court treated them accordingly in assessing the objective seriousness of the offence.
The sentencing judge could not take facts adverse to the offender into account unless established beyond reasonable doubt, but could take favourable facts into account on the balance of probabilities. The circumstances of the offence were treated as serious: a young woman was killed in her own home in what was a manifestly excessive response, even on the offender's own version of events.
The court assessed the objective gravity of the offending as significant within the range for this form of manslaughter, while also taking into account the offender's personal circumstances, the time she had already spent in custody (including time served following her first conviction), and the 15 per cent discount warranted by the offer to plead guilty made in 2015.
The offender had been in custody since 14 August 2013, amounting to 1,773 days at the time of sentencing. The sentence was structured to reflect this pre-existing custody as the commencement date.
Orders Made
- The offender was sentenced to imprisonment for manslaughter, comprising a non-parole period of 7 years commencing 14 August 2013, and a balance term of 2 years and 4 months.
- The offender became eligible for parole on 13 August 2020.
- The sentence incorporated a 15 per cent discount for the offer to plead guilty made in 2015.
- The court noted the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) at the expiry of the sentence.
Key Takeaways
- Under s 421 of the Crimes Act 1900 (NSW), excessive self-defence operates as a partial defence reducing murder to manslaughter where an offender believed their conduct was necessary to defend themselves, but that conduct was not a reasonable response in the circumstances as they perceived them.
- A sentencing court must find facts consistently with the jury's verdict and may not use facts adverse to an offender unless established beyond reasonable doubt; facts favourable to the offender need only be proved on the balance of probabilities, following R v Olbrich.
- Peri-mortem wounds that are not established as a cause of death can form part of the sentencing narrative but are treated differently from the conduct that actually caused death when assessing objective seriousness.
- An offer to plead guilty, even one made well before the eventual trial and not ultimately acted upon at retrial, may attract a sentencing discount; here the court applied 15 per cent.
- The Supreme Court confirmed that the Crimes (High Risk Offenders) Act 2006 (NSW) applies to manslaughter convictions as a "serious offence," meaning the State may seek ongoing supervision or detention beyond the sentence's expiry.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 24, 421
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A
Cases:
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Pitts v R [2014] NSWCCA 244
- R v Abdallah [2015] NSWSC 531
- R v Anderson [2016] NSWSC 399
- R v Blacklidge (NSWCCA, 12 December 1985, unrep)
- R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79
- R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377
- R v Hadchiti [2017] NSWSC 292
- R v Hamzy [2016] NSWSC 1512
- R v Isaacs (1997) 41 NSWLR 374
- R v Johnson (No 5) [2017] NSWSC 1169
- R v Lavender (2005) 222 CLR 67; [2005] HCA 37
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Todd [1982] 2 NSWLR 517
- R v Weinman (1987) 49 SASR 248
- Smith v R [2015] NSWCCA 193
- Weininger v R (2003) 212 CLR 629; [2003] HCA 14