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Supreme Court 25 November 2021

R v Cust

[2021] NSWSC 1515

Sexual offencesAssault & violenceHomicide
STRONG SUBJECTIVE CASE

Citation: R v Cust [2021] NSWSC 1515
Court: Supreme Court of New South Wales
Date: 25 November 2021
Judge: Wilson J

Background

The offender was tried for the murder of a man who had been a workplace friend and mentor. On the night of 17 to 18 December 2018, the two men shared drinks at the deceased's home in Scone, with the offender planning to sleep over before catching a train to Sydney the following morning to begin a new job. In the early hours of 18 December, the offender woke to find the deceased sexually assaulting him.

The offender stabbed the deceased multiple times. He then telephoned his father in a highly distressed state, was counselled to attend the police, and did so at around 6:30am the same morning. He voluntarily disclosed what had happened, including that he had stabbed the deceased and believed he had killed him. He was bleeding from injuries to both hands.

The offender was tried for murder. The jury acquitted him of murder but convicted him of manslaughter, having accepted that the Crown failed to disprove the partial defence of extreme provocation under s 23(1) of the Crimes Act 1900 (NSW). The matter before Wilson J was the sentencing for that manslaughter conviction.

  • What sentence was appropriate for manslaughter where extreme provocation, namely an attempted sexual assault by the deceased, was not disproved?
  • How should the court weigh the objective seriousness of the killing against the offender's strong subjective case, including remorse, immediate disclosure, family support, and rehabilitation prospects?
  • What weight should be given to the offender's early guilty plea to manslaughter (entered at the outset of the murder trial)?

Decision

Wilson J approached sentencing by first establishing the facts consistent with the jury's verdict. The killing was characterised as a savage response to conduct that was itself an act of violence directed at the offender's personal and physical integrity. Her Honour found that the partial defence of extreme provocation had not been disproved, meaning the offender's loss of self-control in response to the attempted sexual assault was central to the factual matrix.

Her Honour drew on the principle articulated in cases such as R v Blacklidge and Hill v R that manslaughter sentences vary enormously depending on the circumstances. The court recognised that while the taking of a human life is among the gravest of crimes, the criminal law and community at large acknowledge factual contexts that provide some basis for understanding the human tragedies that can lead to such outcomes. That recognition, however, is always accompanied by considerable caution.

The offender's subjective case was described as strong. Relevant factors included his immediate and distressed admissions to both his father and police, his early guilty plea to manslaughter, genuine remorse, the support of his family, and good prospects for rehabilitation. The offender was young at the time of the offending. Wilson J also noted the profound tragedy for the deceased's family, who had lost a much-loved member, and acknowledged that the offending had derailed the offender's own promising prospects.

The court imposed a total term of six years with a non-parole period of four years and six months, with the sentence backdated to the date of the offending.

Orders Made

  • The offender was convicted of the manslaughter of the deceased on 18 December 2018 at Scone.
  • Sentenced to 6 years imprisonment with a non-parole period of 4 years and 6 months.
  • Sentence backdated to 18 December 2018; non-parole period expiring 17 June 2023; total term expiring 17 December 2024.

Key Takeaways

  • Under s 23(1) of the Crimes Act 1900 (NSW), extreme provocation operates as a partial defence to murder, reducing a conviction to manslaughter where the Crown fails to disprove that the offender lost self-control in response to conduct of the deceased that constituted a serious indictable offence.
  • A jury verdict of manslaughter on the basis of extreme provocation does not preclude the sentencing court from treating the killing as objectively serious; the partial defence informs, but does not determine, the appropriate sentence.
  • Immediate disclosure, voluntary attendance at police, and an early guilty plea to the alternative charge were treated as significant mitigating factors in assessing the offender's subjective case.
  • The sentencing court acknowledged the principle, drawn from longstanding Court of Criminal Appeal authority, that manslaughter sentences vary infinitely and must account for both the gravity of taking a human life and the particular human tragedy underlying each case.
  • Genuine remorse, strong family support, and good rehabilitation prospects can combine to produce a meaningful reduction in sentence, even where the objective circumstances of a killing are severe.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 23(1) (extreme provocation)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)

Cases:
- R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995, unrep)
- Hill v R (1981) 3 A Crim R 397
- Gounder v R [2012] NSWCCA 87
- Paterson v R [2021] NSWCCA 273
- R v Alexander (1994) 78 A Crim R 141
- R v Butler [2012] NSWSC 1227
- R v Fuller [2020] NSWSC 1580
- R v Green [1999] NSWCCA 97
- R v Mitchell [2008] NSWSC 320
- Williams v R [2013] NTCCA 12