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Supreme Court 26 April 2019

R v Russell

[2019] NSWSC 459

HomicideFirearms & weapons
CRIMINAL LAW SENTENCE MANSLAUGHTER BY EXCESSIVE SELF DEFENCE, DEFENCE OF OTHERS LATE PLEA OF GUILTY

Citation: R v Russell [2019] NSWSC 459
Court: Supreme Court of New South Wales
Date: 26 April 2019
Judge(s): Hidden AJ

Background

The offender armed himself with a loaded .32 calibre pistol and drove to confront two brothers who had attended his home making death threats against him, his mother, and his girlfriend. The confrontation occurred in a public street in Heckenberg on 18 March 2016. During the incident, the offender fired multiple shots at the two brothers. One shot, fired at one of the brothers, missed its intended target but fatally struck an entirely uninvolved bystander who was seated in a parked car nearby.

The offender was tried for murder (count 1) and two counts of discharging a pistol with intent to cause grievous bodily harm (counts 2 and 3). The jury convicted him on the two firearms counts but could not agree on the murder count. At a subsequent rearraignment, the offender pleaded guilty to manslaughter on the basis of excessive self-defence and defence of others, and the Crown accepted that plea in full discharge of the murder count.

The sentencing proceedings required the court to resolve disputed facts about the circumstances of the incident, given the absence of an agreed statement of facts and the unsatisfactory evidence of the two brothers, who were unwilling witnesses at trial.

  • What facts could be established for sentencing purposes, given disputed evidence and the limited reliability of key witnesses?
  • What was the appropriate starting point for manslaughter by excessive self-defence, having regard to the objective seriousness of the offending and the circumstances of the fatal shot?
  • What weight should be given to the late plea of guilty, entered after a trial that resulted in convictions on the two related counts?
  • How should the three sentences be structured, including the degree of accumulation, to reflect the totality of the offending?

Decision

Hidden AJ found that the offender had been provoked into the confrontation by genuine death threats, but also accepted that the offender had likely contributed to the underlying animosity and behaved provocatively earlier that day. The court found that the shot which killed the bystander was fired in circumstances where there was a very real risk of death or serious injury to an innocent person, regardless of the precise proximity of the parties. The offender's case that he acted out of fear for his own safety and that of his family was accepted as the basis for the manslaughter plea, but the objective gravity of discharging a firearm in a public street remained significant.

On the late plea, the court noted that it was entered only after the jury had convicted on the two related firearms counts and after the murder count had been set down for retrial. This substantially reduced the utilitarian value of the plea, and the court allowed a discount of 12.5 per cent from the sentence for manslaughter, reflecting the limited utility of a plea made at that stage.

For the manslaughter, the court adopted a starting point of 12 years' imprisonment, reduced to 10.5 years after the plea discount. For each of the two firearms offences, the court indicated 8 years with a non-parole period of 6 years. Partial accumulation was applied across all three sentences to reflect that, while the offences arose from the same incident, they involved distinct acts of firing a weapon and distinct victims.

The court imposed an aggregate sentence, having regard to sentencing statistics for manslaughter by excessive self-defence drawn from Court of Criminal Appeal decisions and a table of first-instance and appellate sentences provided by the Public Defenders. No submission was made that special circumstances warranted a departure from the standard statutory ratio between head sentence and non-parole period.

Orders Made

  • Aggregate term of imprisonment of 14 years, comprising a non-parole period of 10 years and 6 months commencing 22 March 2016 and expiring 21 September 2026, and a balance of term of 3 years and 6 months commencing 22 September 2026 and expiring 21 March 2030.
  • The offender is eligible for release on parole on 21 September 2026.
  • Sentence backdated to the date of custody: 22 March 2016.

Key Takeaways

  • A plea of guilty entered only after a jury has convicted on related counts at trial, and after a retrial on the primary count has been listed, attracts a substantially reduced utilitarian discount. The Supreme Court allowed only 12.5 per cent in these circumstances.
  • Manslaughter by excessive self-defence does not preclude a significant sentence where the method of the killing involved discharging a firearm in a public street with foreseeable risk to bystanders, even where the fatal victim was not the intended target.
  • Where key witnesses are unwilling and their accounts largely unusable, the sentencing court may still draw on admissions against interest embedded in their prior statements and on independent eyewitness evidence to establish the relevant facts.
  • Partial accumulation of sentences is appropriate where multiple offences arise from the same incident but involve distinct acts of firing at different victims.
  • The well-recognised limitations on using comparable sentencing decisions as a guide did not prevent the court from finding those decisions of "some assistance" in calibrating the appropriate sentence for this offence type.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Evidence Act 1995 (NSW), s 38 (leave to cross-examine unfavourable witnesses)

Cases:
- Sentencing decisions of the NSW Court of Criminal Appeal relating to manslaughter by excessive self-defence (referred to collectively; individual citations not stated in the judgment)