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Supreme Court 26 June 2020

R v Gale

[2020] NSWSC 808

Assault & violenceHomicide
CRIMINAL LAW SENTENCE DEFENCE WHERE MINIMAL EVIDENCE OF REMORSE WHERE PROSPECTS OF REHABILITATION POOR WHERE ACTIONS WERE WITHOUT PROVOCATION

Citation: R v Gale [2020] NSWSC 808
Court: Supreme Court of New South Wales
Date: 26 June 2020
Judge: Ierace J

Background

The offender, a 52-year-old man, stabbed and killed a 39-year-old man outside a methadone clinic in Wollongong in the early morning of 4 May 2018. The two men had a history of animosity dating back to 2017, when the deceased had been convicted of assaulting an elderly woman. On the morning of the offence, the offender approached the deceased and initiated a physical altercation, announcing the confrontation was "for hitting the old lady."

During the fight, the offender claimed he heard a noise, saw a knife on the ground, believed it belonged to the deceased, picked it up and stabbed the deceased once in the chest. The wound penetrated the ascending aorta and proved fatal. After the stabbing, the offender walked away, pushed one of the deceased's companions in the face, and rode off on his bicycle.

The offender was originally charged with murder. During committal proceedings he offered to plead guilty to manslaughter by reason of excessive self-defence under s 421 of the Crimes Act 1900, an offer the Crown initially rejected. On the first day of the scheduled three-week trial, the Crown accepted a guilty plea to manslaughter on that basis, in full satisfaction of the indictment.

  • What sentence was appropriate for manslaughter by excessive self-defence, having regard to the objective seriousness of the offence?
  • What weight should be given to the offender's lengthy criminal history, including a prior serious violence offence involving a knife?
  • What discount applied for the utilitarian value of the guilty plea, given it was entered on the first day of trial?
  • What bearing did the offender's troubled upbringing, childhood maltreatment, and heroin addiction have on his moral culpability?
  • Whether special circumstances existed to justify a variation of the standard ratio between the non-parole period and the balance of term.

Decision

Ierace J characterised the objective seriousness of the offence as significant. The offender initiated the confrontation without provocation, inflicted the fatal stab wound using a knife he had picked up during the altercation, and showed no remorse immediately afterwards, remarking of the deceased in dismissive and callous terms as he walked away. The minimal evidence of genuine remorse was a factor weighing against the offender at sentencing.

The offender's criminal history was a substantial aggravating consideration. His record stretched back to 1983 and included prior serious violence, most relevantly a 2007 conviction for maliciously wounding a person with intent to inflict grievous bodily harm, for which he received eight years' imprisonment. That earlier offence also involved an unprovoked knife attack, and the court found the similarity to the present offence disturbing. The prior serious personal violence offence was a statutory aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999.

The court found some mitigation in the offender's background. Ierace J accepted, on the available evidence, that the offender's lifelong difficulty maintaining a law-abiding lifestyle was partly explicable by maltreatment by his father during childhood and his subsequent homelessness and heroin addiction from age 16. The court drew on Bugmy v The Queen (2013) 249 CLR 571, which recognises that the effects of profound childhood deprivation do not diminish over time and remain relevant to moral culpability. However, the court found the offender's prospects of rehabilitation to be poor and his remorse minimal.

The court applied a 25 per cent discount for the guilty plea, reflecting its utilitarian value even though the plea was not entered until the first day of trial. Starting from a 16-year sentence, the discount reduced the term to 12 years. Special circumstances were found on the basis that the offender would require an extended period of supervised parole upon release, given his history of maladaptive behaviour in the community, producing a non-parole period of 8 years rather than the standard three-quarters proportion.

Orders Made

  • The offender was convicted of the manslaughter of the deceased.
  • Sentenced to 12 years' imprisonment, comprising a non-parole period of 8 years and a balance of term of 4 years.
  • Sentence commenced 8 May 2018 and expires 7 May 2030.
  • The offender becomes eligible for possible release on parole on 7 May 2026.

Key Takeaways

  • A plea of guilty to manslaughter by excessive self-defence, entered on the first day of a scheduled trial, attracted a 25 per cent discount for utilitarian value rather than the higher discounts available for earlier pleas.
  • Under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999, a prior conviction for a serious personal violence offence operates as a statutory aggravating factor, and the court treated the offender's 2007 knife-attack conviction as carrying substantial weight in this respect.
  • Applying Bugmy v The Queen, the sentencing court accepted that childhood maltreatment and its lasting effects remain relevant to moral culpability even where the offender is an adult with an extensive prior record, though this mitigation did not displace the seriousness of the offending.
  • Where an offender's history demonstrates persistent maladaptive behaviour in the community despite prior lengthy periods of supervision, special circumstances justifying an extended parole period may be established.
  • A 12-year sentence with an 8-year non-parole period was imposed, which the court itself acknowledged was a heavy sentence for manslaughter by excessive self-defence, warranted by the combination of objective seriousness, criminal history, poor rehabilitation prospects, and minimal remorse.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 421 (excessive self-defence) and s 33 (wounding with intent)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(d) (prior serious personal violence as aggravating factor)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 4 (definition of serious personal violence)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Summary Offences Act 1988 (NSW)

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- R v Wood (2014) 244 A Crim R 501; [2014] NSWCCA 184
- Smith v R [2015] NSWCCA 193
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14