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Supreme Court 11 July 2019

R v McDonald

[2019] NSWSC 858

Homicide
CRIMINAL LAW SENTENCE WHERE OFFENDER REMORSEFUL DISCOUNT FOR GUILTY PLEA APPLICATION OF BUGMY PRINCIPLES

Citation: R v McDonald [2019] NSWSC 858
Court: Supreme Court of New South Wales
Date: 11 July 2019
Judge: Harrison J

Background

The offender, an Indigenous man in his late fifties, was charged with the murder of his brother at Taree in January 2017. The two men lived in adjacent Housing Department units and had a long-running hostile relationship. On the night in question, the offender took a kitchen knife to his brother's apartment after being disturbed by a noisy domestic argument involving his brother and the brother's partner. He stabbed his brother once in the chest. His brother died almost immediately from severe blood loss.

The offender had offered to plead guilty to manslaughter by unlawful and dangerous act twice before trial, including once as early as October 2017 when the matter was still in the Local Court. The Crown rejected both offers. The case proceeded to a jury trial on the murder charge, and on the sixth day the jury returned a verdict of not guilty of murder. The offender then stood to be sentenced on his manslaughter plea.

At the time of sentencing, the offender had remained in continuous custody since his arrest on 21 January 2017, a period of approximately two and a half years.

  • What was the appropriate sentence for manslaughter by unlawful and dangerous act, where the Crown had twice refused a guilty plea and the offender was acquitted of murder at trial?
  • Where should the offence be placed on the range of objective seriousness for manslaughter?
  • What weight should be given to the offender's Indigenous background and significant childhood disadvantage under the principles in Bugmy v The Queen (2013) 249 CLR 571?
  • What discount, if any, applied to the sentence by reason of the guilty plea, given the Crown's earlier refusal to accept it?
  • To what extent were specific and general deterrence relevant in the circumstances?
  • Was the offender required to be warned about the operation of the Crimes (High Risk Offenders) Act 2000 (NSW)?

Decision

Harrison J placed the offence towards the lower end of the objective seriousness range for manslaughter. The stabbing involved a single blow following a spontaneous loss of self-control. The offender's stated intention at the time was to frighten his brother rather than to kill him, and there was no premeditation. The jury's acquittal on the murder charge was consistent with findings that the offender lacked the requisite intent for murder.

Applying the Bugmy principles, His Honour gave significant weight to the offender's background. The offender had suffered serious childhood disadvantage, including repeated physical abuse by his father, sexual abuse by a priest at age nine or ten, witnessed domestic violence against his mother, grew up on an Aboriginal mission, and had no stable employment since the 1980s. The Court accepted that this history of profound deprivation diminished, though did not eliminate, the offender's moral culpability.

The offender was found to be genuinely remorseful. He had immediately sought help after the stabbing, asked neighbours to call police, and became visibly distressed upon learning his brother had died. A psychologist's report supported the sincerity of that remorse. The Court accepted that neither specific nor general deterrence carried substantial weight in the circumstances, given his age, his background, and the impulsive nature of the offence.

A discount was applied for the guilty plea. Although the Crown had twice refused to accept the plea before trial, the offender's consistent willingness to plead guilty to manslaughter was a relevant consideration. The Court also noted the victim impact material from the deceased's partner and children and acknowledged the ongoing grief of the family, while conforming to the principles in R v Previtera and Bollen v R that such material cannot be used to increase a sentence beyond what is otherwise appropriate.

Orders Made

  • Non-parole period of 3 years imprisonment, commencing 21 January 2017 and expiring 20 January 2020.
  • Balance of term of 3 years, expiring 20 January 2023.
  • First eligible date for release on parole: 21 January 2020.
  • The offender was formally warned of the existence and potential application of the Crimes (High Risk Offenders) Act 2000 (NSW), as required by s 25C(1) of that Act.

Key Takeaways

  • Under the Bugmy principles, a sentencing court must give full and genuine weight to an offender's Indigenous background and childhood deprivation when assessing moral culpability, regardless of the nature of the offence. That disadvantage does not excuse conduct but it can materially reduce the weight given to punitive sentencing objectives.

  • Where the Crown twice refuses an offender's offer to plead guilty to a lesser offence and the offender is ultimately acquitted of the greater charge at trial, the consistent willingness to plead guilty remains a relevant mitigating factor in sentencing on the lesser offence.

  • Manslaughter by a single, spontaneous act, preceded by no planning and accompanied by an intention to frighten rather than kill, sits towards the lower end of the objective seriousness range for that offence.

  • Specific and general deterrence may carry reduced weight where an offence is impulsive rather than calculated, and where the offender's background reflects the kind of profound social disadvantage recognised in Bugmy.

  • A sentencing court imposing a sentence for a "serious violence offence" under the Crimes (High Risk Offenders) Act 2000 (NSW) is required by s 25C(1) to warn the offender of the Act's existence and potential application, even where the court considers the practical operation of the Act unlikely.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 24 (manslaughter, maximum penalty)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Crimes (High Risk Offenders) Act 2000 (NSW), s 25C(1)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Blacklidge (unrep, 12 December 1995, NSWCCA)
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Green [1999] NSWCCA 97
- R v Previtera (1997) 94 A Crim R 76
- Bollen v R (1998) 99 A Crim R 510
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
- R v McDonald [2019] NSWSC 839 (related judgment)