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District Court 31 May 2021

R v Allan

[2021] NSWDC 560

Homicide
CRIME SENTENCE MANSLAUGHTER EXCESSIVE SELF DEFENCE.

Citation: R v Allan [2021] NSWDC 560
Court: District Court of New South Wales
Date: 31 May 2021
Judge: Colefax SC DCJ

Background

The offender, a 34-year-old man, was sentenced for the manslaughter of his close childhood friend. Both men had been drinking heavily and consuming multiple drugs at a rural property in the Yass Valley on the night of 12 to 13 January 2020, in the wake of the sudden death of another mutual friend.

An argument escalated into violence. The deceased punched the offender to the head and then stabbed him in the abdomen with a knife. The offender disarmed the deceased, and immediately swung his arm upward, stabbing the deceased once in the chest. The deceased died at the scene from that wound.

The offender immediately contacted friends and relatives, who in turn alerted police and ambulance services. He was arrested the following day and remained in continuous custody from that point. He pleaded guilty at the earliest opportunity.

  • What was the appropriate sentence for manslaughter by excessive self-defence under s 18(1)(b) of the Crimes Act 1900 (NSW)?
  • Where within the range of objective seriousness did this offending fall?
  • What weight should be given to the offender's subjective circumstances, including a history of childhood sexual abuse, long-term drug dependency, and genuine remorse?
  • What discount applied for the early guilty plea?
  • Whether the statutory non-parole period ratio should be varied to facilitate rehabilitation.

Decision

Colefax SC DCJ first noted the well-established principle from R v Blacklidge (1995) that manslaughter produces the widest variety of circumstances of any offence, making it impossible to identify a single sentencing tariff. The offending was characterised as below mid-range in objective seriousness, though not at or near the bottom of the range.

The Crown and the offender agreed that the offender believed self-defence was necessary after being punched and stabbed. However, it was also agreed that stabbing the deceased in the chest after disarming him was not a reasonable response in the circumstances as the offender perceived them. The offender was therefore criminally responsible on the basis of excessive self-defence. The court was not satisfied beyond reasonable doubt that the offender intended to cause grievous bodily harm, but the offender admitted to recklessness as to that outcome.

The court accepted several significant mitigating factors in the offender's subjective circumstances. These included childhood sexual abuse that had never received professional treatment, a resulting long-term pattern of serious drug misuse, a fragile sense of self-worth, and genuine remorse. The court found the offender's remorse to be authentic, based on his conduct at the time police attended, his early plea sparing the family a contested hearing, and a chaplain's letter describing the offender's primary concern as being for the victim's family rather than himself. While general and specific deterrence were reduced in weight given the circumstances, they remained relevant factors alongside rehabilitation.

A base sentence of four years and eight months was reduced by 25 percent for the early guilty plea, producing a head sentence of three years and six months. The court declined to vary the standard statutory ratio between non-parole period and head sentence. The sentence was backdated to the date of arrest, 13 January 2020.

Orders Made

  • Head sentence of 3 years and 6 months imprisonment, backdated to 13 January 2020.
  • Non-parole period of 2 years and 7 months, expiring 12 August 2022.
  • Balance of parole period of 11 months, expiring 12 July 2023.

Key Takeaways

  • The District Court confirmed that manslaughter by excessive self-defence occupies a wide sentencing range, and each case must be assessed individually on its circumstances of culpability, consistent with R v Blacklidge.
  • A conviction for manslaughter on the basis of excessive self-defence arises where the defendant genuinely believed defensive force was necessary but the degree of force used was not objectively reasonable in the circumstances as the defendant perceived them.
  • Genuine remorse can be established through conduct and third-party evidence even where the offender does not give evidence personally at sentencing proceedings.
  • Childhood trauma, untreated sexual abuse, and consequential long-term drug dependency were treated as significant mitigating factors in the subjective circumstances, though they did not displace the relevance of general and specific deterrence entirely.
  • An early guilty plea attracted a 25 percent discount, and the court declined to reduce the statutory non-parole period ratio, noting that the parole period itself would provide sufficient opportunity for rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b) (manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3)(a) (referenced but not engaged)

Cases
- R v Blacklidge, NSWCCA, unreported, 12 December 1995 (sentencing range for manslaughter; no established tariff)