Citation: R v Newburn [2020] NSWSC 1878
Court: Supreme Court of New South Wales
Date: 17 December 2020
Judge(s): Wilson J
Background
The offender pleaded guilty to the manslaughter of Glen Smith, who died on 20 January 2019 following a street confrontation at Bolton Point, NSW. The offending arose from a domestic dispute: the offender had refused to allow his partner to collect her belongings from their shared accommodation and followed her into the street, where Mr Smith intervened.
Later that night, the offender armed himself with a homemade spear (a curtain pole with a knife taped to the end) and left the safety of the house to confront Mr Smith, who was armed with the shaft of a golf club. During the fight, the offender stabbed Mr Smith twice. The second wound penetrated Mr Smith's heart and proved fatal.
The plea of guilty to manslaughter was entered on the basis of excessive self-defence: the offender had an intention to cause grievous bodily harm, but the force used went beyond what was reasonably necessary in the circumstances. The Crown had originally charged the offender with murder, and accepted the manslaughter plea one working day before trial was due to commence.
Legal Issues
- What sentence was appropriate for manslaughter by excessive self-defence involving an armed confrontation?
- What discount from the sentence applied, given the timing of the guilty plea and the Crown's earlier refusal to accept it at the committal stage?
- What relevance, if any, did the offender's drug addiction and history of childhood trauma have to the appropriate sentence?
- Whether the ordinary ratio of non-parole period to head sentence should be adjusted under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
Decision
Wilson J sentenced the offender to 9 years imprisonment with a non-parole period of 5 years and 9 months. Her Honour found this was a serious example of manslaughter: the offender had not been under direct attack when he chose to arm himself and initiate the confrontation. He used a significantly more lethal weapon than the one Mr Smith carried, and he fled the scene after the stabbing, discarding the knife component of the weapon.
On the guilty plea discount, Her Honour acknowledged that the plea was formally entered very late and would ordinarily attract little or no utilitarian discount. However, the offender had sought to plead guilty to manslaughter in the Local Court prior to committal, and the Crown had declined to accept that offer until shortly before trial. Authority required that the offender not be penalised for the Crown's delay, and Her Honour applied the full 25% discount.
Regarding the drug addiction, Her Honour accepted that the offender's entrenched methamphetamine use was connected to childhood trauma that he had used drugs to suppress. This did not reduce the objective seriousness of the offending, but it informed the decision to vary the standard ratio of non-parole period to head sentence under s 44. Her Honour found the offender would need a longer period of community supervision and support than usual to transition to a law-abiding lifestyle.
Two comparable cases were considered and distinguished. In R v Aljubouri, the offender was unarmed and had to fight off a machete attack before stabbing the deceased; that case was less serious than the present one. R v Cook involved gang-related violence and was of limited comparative utility.
Orders Made
- The offender was convicted of the unlawful killing of Glen Smith on 20 January 2019 at Bolton Point, NSW.
- The offender was sentenced to 9 years imprisonment, commencing 20 May 2019 and expiring 19 May 2028.
- A non-parole period of 5 years and 9 months was set, expiring 19 February 2025.
Key Takeaways
- Where the Crown refuses an early offer to plead guilty to a lesser charge and only accepts it shortly before trial, the offender is entitled to the same sentence discount as would have applied had the plea been accepted at the earlier stage. The delay caused by the Crown's refusal does not reduce the discount available to the offender.
- A manslaughter by excessive self-defence is treated as more serious where the offender chose to arm himself and initiate the confrontation, rather than responding to a direct attack while already engaged.
- Under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court may adjust the standard ratio of non-parole period to head sentence where an offender's particular rehabilitation needs require extended post-release supervision.
- Entrenched drug addiction connected to childhood trauma may inform the structure of a sentence (particularly the length of the parole period) without reducing the objective seriousness of the offending itself.
- Sentences imposed in the Local Court for unrelated offences running concurrently with a Supreme Court sentence is not automatic. Where the offences share no commonality with the principal offending and the Local Court sentences were short, separate and consecutive punishment may be appropriate, with the totality principle barely engaged.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- Hayek v R [2016] NSWCCA 126
- R v Aljubouri [2019] NSWSC 180
- R v Cook [2012] NSWSC 480
- R v Trevenna [2004] NSWCCA 43; (2004) 149 A Crim R 505