Citation: R v Rossi-Murray [2019] NSWSC 482
Court: Supreme Court of New South Wales
Date: 2 May 2019
Judge: Rothman J
Background
The offender was charged with murder following the death of Matthew Shepherd on 2 July 2016 at Schofields, NSW. The two men were not well acquainted. Their connection arose from a drug transaction in which the offender had supplied methamphetamine ("ice") to the deceased in exchange for car wheels, which proved unsuitable. The deceased consequently owed the offender a debt of between $400 and $500.
On the night of the offence, the offender was travelling in the deceased's car along with a third party. When the car stopped at a house, the offender confronted the deceased about the drug debt. He produced a knife and poked the deceased in the chest, causing a minor wound. The deceased fled the vehicle and the offender gave chase in near-total darkness.
During the chase, the offender was still holding the knife. He ran into the fleeing deceased and the knife entered the deceased's back between two ribs, causing the fatal injury. The offender then left the scene and sought to have incriminating evidence destroyed. At trial, the jury rejected an accidental stabbing account but found the act was not done with intent to kill or cause grievous bodily harm, returning a verdict of manslaughter.
Legal Issues
- What facts, consistent with the jury's manslaughter verdict, should the court find as the basis for sentencing?
- What is the appropriate sentence, having regard to the objective seriousness of the offence, the offender's subjective circumstances, and the purposes of sentencing under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- Whether a discount applied for the offender's prior offer to plead guilty to manslaughter, which the Crown had not accepted at the time?
- Whether special circumstances existed justifying a variation to the standard non-parole period ratio?
- How should the sentence interact with time already spent in custody, including a period serving the balance of a pre-existing sentence after parole revocation?
Decision
Rothman J found that the fatal stabbing was a deliberate act but was not performed with the requisite intention to kill or cause grievous bodily harm. The expert evidence established that minimal force was required to inflict the fatal wound: after the knife pierced the skin, the blade met almost no further resistance as it passed between two ribs into the body cavity. The force involved may have been no greater than the minor chest poke earlier in the same incident.
The court assessed the objective seriousness of the offence as below the mid-range for manslaughter. The stabbing arose from a confrontation over a relatively small drug debt, in circumstances where the offender had himself been the subject of prior threats. The fatal outcome was in part attributable to the anatomical misfortune of the knife's entry point rather than the force applied.
On subjective matters, the court gave significant weight to the offender's background as an Aboriginal man who had experienced a deeply disadvantaged upbringing marked by violence, drug use in the home environment, and subsequent social exclusion. The court acknowledged these factors under the principles in Bugmy (as applied in this context) and treated them as relevant to moral culpability and the prospects of rehabilitation. The offender's prior offer to plead guilty to manslaughter, which the Crown had not accepted, attracted a 15% utilitarian discount under ss 22 and 22A of the Crimes (Sentencing Procedure) Act 1999.
Special circumstances were found to exist. The court determined that a longer period of supervised parole, rather than the standard ratio, would better facilitate rehabilitation and reduce the risk of reoffending. The sentence commenced on 2 July 2017 rather than the date of judgment, accounting for time spent on remand and the interaction with the revoked parole from an earlier unrelated sentence.
Orders Made
- The offender was convicted of manslaughter of Matthew Shepherd.
- Sentenced to a total term of 11 years' imprisonment.
- Non-parole period of 7 years and 4 months, commencing 2 July 2017 and concluding 1 November 2024.
- Balance of term of 3 years and 8 months, concluding 1 July 2028.
- First eligible for release on parole on 2 November 2024.
Key Takeaways
- A jury verdict of manslaughter, as distinct from murder, requires the sentencing court to proceed on the basis that the fatal act was deliberate but not accompanied by an intention to kill or cause grievous bodily harm; any accidental account inconsistent with the verdict must be rejected.
- Where a Crown declines a pre-trial offer to plead guilty to a lesser charge and the offender is ultimately convicted of that lesser charge at trial, a utilitarian discount for the plea remains available under ss 22 and 22A of the Crimes (Sentencing Procedure) Act 1999, though the precise discount reflects the circumstances of the eventual plea.
- The objective seriousness of a manslaughter can be significantly affected by the minimal force involved and the degree to which a fatal outcome resulted from anatomical or situational factors beyond what the offender intended or foresaw.
- An Aboriginal offender's background of childhood exposure to violence, substance abuse, and ongoing social exclusion is a relevant factor going to moral culpability, consistent with the approach applied following Bugmy v The Queen.
- Special circumstances justifying a reduction in the non-parole period ratio may be found where an extended period of supervised parole is considered better suited to the offender's rehabilitation than a longer period of incarceration.
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 3A(d), 21A, 22, 22A
Cases
- Kentwell v R (No 2) [2015] NSWCCA 96
- R v Lewis [2014] NSWSC 1127
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14