Citation: R v Becker [2019] NSWSC 1205
Court: Supreme Court of New South Wales
Date: 11 September 2019
Judge: Button J
Background
The offender was a 33-year-old man who, in June 2017 at Tweed Heads, fatally shot a 31-year-old man during a confrontation connected to a drug supply operation. Both men worked for an older criminal figure who had armed each of them following a substantial financial loss in the drug trade. The offender carried a loaded .44 Magnum revolver; the deceased had been given a sawn-off shotgun.
The fatal shooting occurred when the older man, the offender, and the deceased met at a location in three separate vehicles. During a conversation between the older man and the deceased, the deceased made a movement that suggested he may have been reaching for his shotgun. The offender, grossly intoxicated by methamphetamine, drew his revolver and fired a single shot into the deceased's abdomen. The deceased was driven to hospital but could not be saved.
Originally charged with murder, the offender entered an early guilty plea to manslaughter on the basis of excessive self-defence: that is, he honestly believed the shooting was necessary in self-defence, but that belief did not make his response a reasonable one in the circumstances as he perceived them.
Legal Issues
- What was the appropriate objective assessment of the seriousness of this manslaughter, given the specific circumstances including the partial defence of excessive self-defence?
- Whether the offender harboured an intent to kill or an intent to cause grievous bodily harm, and the significance of that distinction for sentencing purposes.
- What weight, if any, should be given to remorse as a subjective mitigating factor?
- What discount applied for the early plea of guilty, and what was the appropriate head sentence and non-parole period?
Decision
Objective seriousness. Button J assessed the offence as one of significant gravity, notwithstanding that manslaughter can be committed in a wide variety of circumstances. The Crown made a forceful submission that, at the moment of the shooting, the offender was armed and the deceased was not yet armed, and alternatives such as brandishing or training the weapon on the deceased were available. The court accepted the force of that submission. Layered on top was the offender's gross drug intoxication, his possession of an unlawful loaded firearm in a public place, and his involvement in drug trafficking as the underlying reason for the entire encounter.
Mental element. Button J found it probable that the offender spontaneously formed an intention to kill at the moment he fired. However, applying the criminal standard, the court was not satisfied of that graver intention beyond reasonable doubt, given the offender's intoxication, the spontaneous nature of the act, the absence of any pre-existing motive, the trajectory of the shot, and the things the offender said and did not say afterwards. The court was nonetheless satisfied that firing a high-calibre revolver at another person at intermediate range necessarily involved an intention to inflict grievous bodily harm.
Remorse. Button J declined to find remorse established on the balance of probabilities. The offender hid the murder weapon (which was never recovered), fled the scene, and exercised his right to silence on arrest. No statement from the offender or those close to him addressed how he felt about the killing. A psychological report contained only brief references to remorse, and these were undermined by the fact that the offender was either intoxicated or withdrawing from drugs at the time of his assessment. The early plea was treated as an acceptance of responsibility, but that was as far as the court went.
Sentence. A 25% discount was applied to reflect the early guilty plea. Button J identified a starting point of 13 years' imprisonment, reduced to a head sentence of 9 years and 9 months by reason of the plea. Subjective features, including the offender's ice dependence and his prior absence of criminality before he became drug-dependent, were weighed against the significant objective gravity of the offence.
Orders Made
- The offender was convicted of manslaughter.
- Head sentence of imprisonment for 9 years and 9 months, with a non-parole period of 7 years and 3 months.
- Sentence fully backdated to 27 June 2017, the date of arrest and commencement of custody.
- Non-parole period expires 26 September 2024; parole period runs from 27 September 2024 to 26 March 2027.
Key Takeaways
- Under s 421 of the Crimes Act 1900 (NSW), excessive self-defence reduces murder to manslaughter where the offender genuinely believed the act was necessary in self-defence, but the response was objectively unreasonable in the perceived circumstances.
- A plea of guilty to manslaughter carries an obligation to assess whether genuine remorse exists separately from the plea itself; an early plea warrants a discount for acceptance of responsibility, but does not automatically establish remorse as a distinct mitigating factor.
- Where an aggravating mental element (such as intent to kill) is disputed in sentencing, the court must be satisfied of that element to the criminal standard of proof before treating it as an aggravating circumstance.
- Gross intoxication by methamphetamine was treated as an objective feature of danger to others rather than a mitigating subjective consideration, given that the intoxication arose in the context of the offender's own drug use and criminal conduct.
- Significant objective gravity was found even within the context of a partial-defence manslaughter, because the offender possessed and discharged an unlawful loaded firearm in a public place while grossly intoxicated, as part of a drug trafficking enterprise.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 421 (excessive self-defence as a partial defence reducing murder to manslaughter)
Cases
No cases were cited in the material provided.