Citation: R v Hawkins (No 12) [2020] NSWSC 1910
Court: Supreme Court of New South Wales
Date: 23 December 2020
Judge: Lonergan J
Background
The offender was charged with murdering Kenneth Denniss on 8 December 2018 at the deceased's home in Maryland, NSW. The Crown case was that after an earlier altercation over a motorbike, during which the offender was stabbed in the arm, the offender returned to the deceased's home with a loaded firearm and shot him dead out of anger.
The offender's case was that the earlier stabbing had frightened him, and that his PTSD heightened his perception of threat. He said he returned to warn the deceased off. When he called out from the driveway, the deceased pushed up the garage door and rushed toward him holding a long implement the offender believed was a shotgun, from 13 metres away. He shot in what he believed was necessary self-defence.
After an eight-week trial, the jury acquitted the offender of murder but convicted him of manslaughter, a verdict consistent with the partial defence of excessive self-defence. The matter proceeded to sentencing.
Legal Issues
- What findings of fact should the sentencing court make, consistently with the jury's verdict of manslaughter by excessive self-defence?
- What objective seriousness should be attributed to the offending?
- What weight should be given to the offender's remorse, PTSD, subjective circumstances, and prospects of rehabilitation?
- Whether a 25% discount for the offender's offer to plead guilty was appropriate?
- Whether special circumstances existed justifying a variation to the standard ratio of non-parole period to head sentence?
Decision
Lonergan J found that the jury's verdict of not guilty of murder indicated it had largely accepted the offender's factual account. Her Honour rejected the evidence of the deceased's partner, Taylah Lethbridge, as unreliable. The judge found Ms Lethbridge's account had been shaped to present the offender negatively, was inconsistent across her statements to police, and was critically undermined by the presence of a home-made mace lying near the deceased's body, which the Crown never adequately explained. The offender's evidence, by contrast, was assessed as "bluntly honest," consistent under cross-examination, and supported by the physical evidence at the scene.
On objective seriousness, the offending involved the use of a loaded firearm to kill a person, which placed it at a serious level. However, the mitigating circumstances, including the genuine subjective belief in the need for self-defence, the earlier provocation through the stabbing, and the role of the offender's PTSD, reduced the objective gravity of the offending to a meaningful degree.
The offender's subjective case was weighty. He had no prior criminal history, had struggled with PTSD and substance abuse, had made significant rehabilitative progress, and demonstrated genuine remorse. Family impact statements from the deceased's mother, partner, daughter, brother, and sister were received and acknowledged by the court, which extended its condolences to the family.
A discount of 25% was applied to the sentence to reflect the offender's offer to plead guilty. Special circumstances were found, given the offender's first period in custody, his need for support in reintegrating into the community, and the importance of maintaining his abstinence from drugs. The non-parole period was accordingly reduced relative to the head sentence.
Orders Made
- The offender was sentenced to imprisonment for manslaughter, consisting of:
- A non-parole period of 5 years commencing 9 December 2018, expiring 8 December 2023
- An additional term of 2 years and 6 months commencing 9 December 2023, expiring 8 June 2026
- The offender becomes eligible for release on parole on 8 December 2023
- Pre-sentence custody of 2 years and 15 days was taken into account as time served
- The sentence reflected a 25% discount for the guilty plea offer, from a pre-discount head sentence of 9 years and 4 months
Key Takeaways
- A sentencing court must make its own findings of fact on the objective and subjective circumstances, but those findings must remain consistent with the jury's verdict. Where a jury acquits on murder and convicts on manslaughter by excessive self-defence, the sentencing court may treat this as a largely favourable endorsement of the offender's factual account.
- Witness credibility in sentencing proceedings is assessed on orthodox principles. Inconsistencies across earlier statements, and physical evidence irreconcilable with a witness's account, can cause a sentencing judge to discount that evidence significantly.
- Genuine remorse, an absence of prior criminal history, diagnosed PTSD causally connected to the offending, and strong rehabilitative prospects are capable of substantially affecting the sentence imposed for a serious firearms offence resulting in death.
- A 25% discount for an offer to plead guilty was applied in circumstances where the plea offer preceded trial, consistent with the approach to early utilitarian pleas under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Special circumstances under s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were established by reference to a first-time custodial sentence and the need for structured parole supervision to support drug abstinence and community reintegration.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 24 (maximum penalty for manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2B) (special circumstances)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases:
- Cheung v R (2001) 209 CLR 1; [2001] HCA 67 (adverse sentencing findings must be established beyond reasonable doubt)
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286
- Watson v Foxman (1995) 49 NSWLR 315 (fallibility of human memory)