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District Court 20 March 2019

R v Tristan LEE

[2019] NSWDC 59

Homicide
CRIMINAL SENTENCING MANSLAUGHTER SINGLE STAB WOUND SUBJECTIVE FEATURES REMORSE

Citation: R v Tristan LEE [2019] NSWDC 59
Court: District Court of New South Wales
Date: 20 March 2019
Judge: His Honour Judge Lerve

Background

The offender pleaded guilty to manslaughter following the death of a man in Tolland, New South Wales, in the early hours of 16 May 2017. The deceased and a companion had arrived uninvited at the offender's home after 2am, purportedly to purchase drugs. Following an argument about a missing phone and money, the deceased refused to empty his pockets and ran from the property.

The offender gave chase through a dark grassy laneway while holding a knife. He fell on the deceased during the pursuit and the outstretched knife inflicted a single stab wound to the deceased's upper left thigh. The wound severed the femoral artery and femoral vein, and the deceased bled to death. The offender subsequently handed himself in to police with the assistance of his father.

The offender was charged on the day of his arrest, 16 May 2017, and entered his guilty plea at Wagga Wagga Local Court on 21 June 2018. The sentence hearing took place at the Wagga Wagga District Court on 1 March 2019.

  • What was the appropriate starting point sentence for manslaughter in these circumstances, having regard to the wide range of culpability that characterises the offence?
  • What weight should be given to the subjective features of the offender, including remorse, cooperation with police, and prospects of rehabilitation?
  • Whether special circumstances existed to justify a non-parole period that represented a lower proportion of the total sentence than the statutory default of 75%.
  • What utilitarian discount applied to the early guilty plea?

Decision

Judge Lerve acknowledged at the outset the principle, drawn from cases including R v Barnett and R v Blacklidge, that no sentence can measure the value of a human life, but that the sentence must reflect adequate punishment, denunciation, the objective seriousness of the offence, and the offender's moral culpability and rehabilitation prospects.

The court assessed the circumstances of the manslaughter as falling within a range that, while not involving a deliberate intent to kill, still involved the felonious taking of human life during a pursuit the offender had chosen to undertake while armed with a knife. Drawing on R v Hoerler and R v Loveridge, the court was required to consider the full context of the death, including the extent of violence and the risk of serious injury. The single stab wound was the result of falling on the deceased rather than a deliberate thrust, but the decision to chase a fleeing person with a knife in hand was central to the assessment of culpability.

The court fixed a starting point of six years imprisonment. After applying the full 25% utilitarian discount for the early guilty plea (consistent with R v Loveridge principles), the total sentence was reduced to four years and six months. The court found special circumstances warranting a longer balance of term to support the offender's rehabilitation, producing a non-parole period of approximately 62% of the total sentence rather than the standard 75%. The court recommended parole be conditioned on compliance with directions relating to substance abuse treatment and counselling.

Orders Made

  • The offender was convicted of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900.
  • Total sentence of 4 years and 6 months imprisonment.
  • Non-parole period of 2 years and 9 months, commencing 16 May 2017 and expiring 15 February 2020.
  • Balance of term of 1 year and 9 months, commencing 16 February 2020 and expiring 15 November 2021.
  • The court recommended release to parole at the expiration of the non-parole period.
  • The court recommended parole be conditioned on the offender complying with all reasonable directions from the Department of Community Corrections relating to ongoing treatment and counselling for substance abuse.

Key Takeaways

  • Manslaughter carries a maximum of 25 years imprisonment under the Crimes Act 1900, and no standard non-parole period applies, leaving sentencing courts with wide discretion informed by the particular circumstances of each case.
  • The District Court confirmed that even where death was not intended, running with a knife in pursuit of a fleeing person is a circumstance bearing materially on moral culpability.
  • A full 25% utilitarian discount for plea of guilty remained available where the plea was entered at an early opportunity and maintained through to the sentence hearing.
  • Special circumstances, justifying departure from the standard 75% non-parole period ratio, were found on the facts of this case, with the extended balance of term directed toward supporting rehabilitation.
  • Consistent with authorities including R v Blacklidge and R v MD, BM, NA & JT, the felonious taking of human life remains the starting point for any manslaughter sentencing exercise, regardless of the wide variation in circumstances that can produce a manslaughter conviction.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A

Cases:
- R v Blacklidge (unrep) NSWCCA, 12 December 1994
- R v MD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342
- R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184
- R v Loveridge [2014] NSWCCA 120
- R v Barnett [2016] NSWDC 302
- R v Olbrich (1999) 199 CLR 270