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Court of Criminal Appeal 26 August 2019

Patel v R

[2019] NSWCCA 170

Homicide
CRIME SENTENCE APPEAL DEFENCE PAROLE PERIOD OF 7 YEARS WHETHER APPLICANT SHOULD BE RESENTENCED

Citation: Patel v R [2019] NSWCCA 170
Court: Court of Criminal Appeal, New South Wales
Date: 26 August 2019
Judge(s): Simpson AJA, Harrison J, N Adams J

Background

The appellant was convicted of manslaughter at a retrial before Lonergan J and a jury in March 2018, on the basis of excessive self-defence. The conviction followed an earlier murder conviction that the Court of Criminal Appeal had quashed in 2017. The killing took place on 30 July 2013, meaning sentence was ultimately imposed almost five years after the appellant's arrest.

The facts involved a prolonged and fatal physical confrontation between the appellant and the deceased, who were both connected to the same man. The jury accepted the excessive self-defence basis for manslaughter, meaning it found the appellant believed she was acting in self-defence but used more force than was reasonably necessary.

Lonergan J sentenced the appellant to nine years and four months imprisonment with a non-parole period of seven years, having applied a 15 percent discount for an offer to plead guilty made in March 2015 (which had been rejected by the Crown). The appellant sought leave to appeal on the basis that the sentence was excessive.

  • Whether the sentencing judge failed to properly assess the gravity of the offending by making erroneous factual findings
  • Whether the location of the offence (the deceased's own home) could properly be treated as an aggravating factor
  • Whether the sentencing judge erred in finding the appellant had an intention to kill
  • Whether the sentencing judge erred in her assessment of the overall seriousness of the offence
  • Whether the sentencing judge failed to properly consider the relevance of general deterrence in this individual case
  • Whether the sentencing judge wrongly assumed that imprisonment was the mandatory starting point for manslaughter offences
  • Whether the five-year delay between arrest and sentence should have been treated as a mitigating factor

Decision

Harrison J, with whom Simpson AJA and N Adams J agreed, dismissed each of the grounds of appeal. The Court found no error in the sentencing judge's approach to the objective gravity of the offending, characterising the offence as an objectively serious example of manslaughter. The Court noted that the appellant had deliberately and persistently applied force over an extended period, including stabbing the deceased in the abdomen at a point when she was unresponsive.

On the aggravation ground, the Court of Criminal Appeal agreed with the appellant that the fact the killing occurred in the deceased's own home did not aggravate the offence. Harrison J reasoned that the deceased had, in a relevant sense, chosen that location, and the appellant ought not be more severely punished on that account. This represented a correction of Lonergan J's approach on that point, though it did not ultimately change the outcome.

On the intention to kill, the Court accepted that there was a proper basis on the evidence for the sentencing judge's finding. On delay, the Court acknowledged the lengthy period between arrest and sentence, including over three years between the guilty plea offer and sentence, but found no error in the manner in which the sentencing judge addressed that factor.

Notably, all three judges stated, independently, that they would have imposed a longer sentence than Lonergan J. Because the appeal was brought by the appellant rather than the Crown, the Court could not increase the sentence, and leave to appeal was granted but the appeal dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the location of a killing occurring in the deceased's home is not automatically an aggravating circumstance under the sentencing framework, particularly where the deceased effectively chose that location.
  • All three judges independently expressed the view that, had they been sentencing, they would have imposed a more severe sentence than the one under review. However, because the appeal was brought by the offender rather than the prosecution, the Court had no power to increase the sentence.
  • Excessive self-defence manslaughter remains an offence in respect of which general deterrence can properly be considered as a sentencing factor, contrary to the appellant's submission.
  • A sentencing court does not operate on a wrong principle by treating imprisonment as the appropriate starting point in manslaughter cases, provided it considers all available sentencing options under the Crimes (Sentencing Procedure) Act 1999.
  • Significant delay between arrest, guilty plea offer, and ultimate sentence is a relevant mitigating consideration, but the mere existence of delay does not automatically establish a sentencing error if the judge has addressed it in remarks on sentence.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A(2)(eb)

Cases:
- Patel v R [2017] NSWCCA 121 (earlier successful appeal against murder conviction)
- R v Patel (No 3) [2018] NSWSC 952 (sentencing decision under appeal)
- Jonson v R [2016] NSWCCA 286
- Mulato v R [2006] NSWCCA 282
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unreported)
- R v McDonald [2019] NSWSC 858
- R v Todd [1982] 2 NSWLR 517
- RO v R [2019] NSWCCA 183 (cited by N Adams J on sentencing discretion)