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Supreme Court 3 July 2020

R v Charters

[2020] NSWSC 842

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE OFFENDER ORIGINALLY CHARGED WITH MURDER DEFENCE WHERE OFFENCE BELOW MID RANGE OF OBJECTIVE SERIOUSNESS

Citation: R v Charters [2020] NSWSC 842
Court: Supreme Court of NSW
Date: 3 July 2020
Judge: Ierace J

Background

The offender was one of nine adults present at a Forbes residence in the early hours of 19 November 2017 when the deceased, who had a history of perpetrating serious domestic violence against a woman sheltering at the property, forced his way inside brandishing a large kitchen knife. The deceased was under the influence of methamphetamine, alcohol, and possibly steroids. The offender and another man, William Merritt, confronted the deceased outside the house and struck him with wooden implements, causing his death.

Both men were charged with murder and faced trial in November 2019. The jury acquitted Merritt of both charges and found the offender not guilty of murder but guilty of manslaughter. Ierace J concluded that the manslaughter verdict was on the basis of excessive self-defence, meaning the jury accepted the offender acted in self-defence but found his response went beyond what was reasonably necessary.

The sentencing hearing required the court to assess the offender's moral culpability against a background of a troubled upbringing, a possible traumatic brain injury, possible mental illness, and an undiagnosed intellectual disability.

  • What objective seriousness should be attributed to the manslaughter, given the circumstances of excessive self-defence?
  • How should the offender's possible traumatic brain injury, possible mental illness, and possible intellectual disability bear on sentence, given the absence of formal diagnoses?
  • What weight should be given to the offender's deprived and violent upbringing under the principles in Bugmy v The Queen?
  • Whether special circumstances existed justifying a departure from the standard statutory ratio between the non-parole period and the total sentence under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW)?

Decision

Ierace J placed the offence below the mid-range of objective seriousness. The circumstances in which the killing occurred, including the deceased's violent and threatening conduct toward the occupants of the house, reduced the offender's moral culpability, even though the force used went beyond what was legally justified.

On the question of the offender's mental health and cognitive functioning, the court declined to make positive findings of schizophrenia, bipolar disorder, or a neurological disorder to the requisite evidentiary standard. There was material suggesting the offender may well suffer from such conditions, but formal diagnoses had not been established. This uncertainty meant those matters could not be treated as proven mitigating factors in the usual way, though the court acknowledged them as part of the overall picture.

The court accepted the offender's account of a profoundly troubled upbringing marked by endemic violence, alcohol, and drug abuse. Applying the High Court's reasoning in Bugmy, Ierace J noted that such a background can compromise a person's capacity to mature and learn from experience, and remains relevant to sentence even where an offender has a long history of offending. The court was careful to note, consistent with Bugmy, that these considerations are not automatically mitigatory for all purposes of punishment.

Regarding special circumstances, the application to adjust the statutory non-parole ratio based on the offender's mental health treatment needs was refused. Because the court was not satisfied to the requisite standard that the specific mental health conditions existed, this ground for adjustment was not made out.

Orders Made

  • The offender was convicted of the manslaughter of Matthew LeBrocque.
  • Sentenced to a total term of imprisonment of 4 years and 9 months.
  • Non-parole period of 2 years and 9 months.
  • Balance of term of 2 years.
  • Sentence commenced 19 January 2018 and expires 18 October 2022.
  • Eligible for release on parole from 18 October 2020.

Key Takeaways

  • A manslaughter conviction on the basis of excessive self-defence, where the deceased was the aggressor and had engaged in sustained prior domestic violence, may be placed below the mid-range of objective seriousness at sentencing.
  • Undiagnosed or unconfirmed mental health conditions and cognitive impairments cannot be treated as established mitigating factors at sentencing if the evidence does not satisfy the requisite standard of proof, consistent with The Queen v Olbrich.
  • Under the principles confirmed in Bugmy v The Queen, a deprived and violent upbringing remains relevant to the assessment of moral culpability and the appropriate sentence, including for offenders with a substantial prior criminal history.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) will not be established merely by asserting a need for mental health treatment where the underlying condition has not been proven to the court's satisfaction.
  • Where an offender was returned to custody on the date of the offence and served the balance of an existing parole period, a degree of concurrency between that period and the sentence for the new offence may be appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Smith v R [2015] NSWCCA 193
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54