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Supreme Court 23 April 2021

R v Sharpe (No 7)

[2021] NSWSC 379

Assault & violenceHomicide
CRIMINAL LAW OFFENCES DEFENCE OFFENDER 18 YEARS OF AGE AT THE TIME SENTENCE FACTS FOUND ACCORDINGLY

Citation: R v Sharpe (No 7) [2021] NSWSC 379
Court: Supreme Court of New South Wales
Date: 23 April 2021
Judge: Bellew J

Background

The offender was 18 years old when he intervened in a physical altercation between his father and the deceased at Surfside, NSW, on or about 13 April 2019. The central factual contest at trial was whether the deceased had used a knife to slash the offender's father during the struggle. The Crown maintained the deceased never possessed a knife; the defence maintained he did.

The jury acquitted the offender of murder but convicted him of manslaughter. The verdict reflected a finding that the offender acted in defence of himself and/or his father, but did so with force that was excessive in the circumstances. The offender had stabbed the deceased eleven times.

The matter came before Bellew J for sentencing. A significant dispute arose during the sentencing hearing about how far the Crown could re-open factual questions that appeared to have been rejected by the jury at trial.

  • What facts could be found at sentence, given that the jury's manslaughter verdict necessarily incorporated certain factual conclusions, including that the deceased had possessed a knife?
  • Whether the Crown could re-agitate at sentence factual propositions that the jury appeared to have rejected in acquitting on murder.
  • How to identify the appropriate sentencing range for manslaughter by excessive self-defence, having regard to the offender's age, criminal history, use of a weapon, and conditional liberty at the time.
  • What weight should be given to the offender's youth, psychological profile, and prospects of rehabilitation?

Decision

Fact-finding consistent with the verdict

Bellew J confirmed that a sentencing court must find facts consistent with the jury's verdict, interpreted in light of the way each side put its case at trial. The jury's not guilty verdict on murder could only be rationally explained by accepting that the deceased possessed a knife and used it to injure the offender's father. The Crown's attempt to re-agitate that factual question at sentence was rejected. Allowing the Crown to do so would have been inconsistent with the verdict.

His Honour drew on R v Isaacs and Smith v R to identify the three questions embedded in a verdict of manslaughter by excessive self-defence: what circumstances did the offender perceive; what did he believe was necessary to defend himself or his father; and to what degree did his conduct depart from a reasonable response to those perceived circumstances?

Objective and subjective features of the offending

The offending was characterised as spontaneous in its origins but ultimately grossly excessive in its execution. The use of a weapon and the fact that the offender was on conditional liberty at the time were treated as aggravating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW). The initial context, namely an intervention to protect a family member, was treated as relevant to the character of the offending, even though the repeated stabbing well exceeded any proportionate response.

Subjective matters and rehabilitation

The forensic psychology evidence established that the offender had longstanding and entrenched psychological issues requiring moderate to intensive treatment, and that he lacked conscious awareness of many of those issues. His prospects of rehabilitation were described as guarded. His youth at the time of the offence was a relevant mitigating consideration, though the court was cautious about attributing his conduct solely to immaturity in the absence of clear evidence that immaturity specifically contributed to it. The victim impact statements, notably expressing empathy for the offender from the deceased's own sisters, were taken into account under s 30E(3) of the Sentencing Act as evidence of harm to the community.

Orders Made

  • The offender was convicted of the manslaughter of Andrew Peter Drake.
  • Sentenced to imprisonment for 7 years and 6 months, commencing 10 January 2020 and expiring 9 July 2027.
  • Non-parole period of 4 years and 9 months, commencing 10 January 2020 and expiring 9 October 2024.
  • Eligible for release on parole on 10 October 2024.

Key Takeaways

  • A sentencing court must find facts consistent with the jury's verdict, interpreted by reference to how the cases were actually run at trial. Where an acquittal on murder necessarily implies acceptance of a particular factual proposition, the Crown cannot re-agitate that proposition at the sentencing hearing.
  • Under the excessive self-defence framework, three questions guide fact-finding at sentence: what the offender perceived, what response the offender believed was necessary, and the degree to which the actual conduct departed from a reasonable response to those perceptions.
  • Manslaughter by excessive self-defence remains a serious offence. Spontaneous and contextually explicable origins do not reduce the gravity of a response that was, in the court's assessment, entirely disproportionate.
  • Youth at the time of the offence is a mitigating factor, but the Supreme Court was careful not to treat immaturity as a causative explanation for the conduct without evidentiary support linking the two.
  • Victim impact statements from family members may be taken into account under s 30E(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) as evidence of harm to the community, provided the prosecutor applies for that course and the court considers it appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 421 (excessive self-defence)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 30E(3)

Cases
- R v Isaacs (1997) 41 NSWLR 374
- Smith v R [2015] NSWCCA 193
- Cheung v The Queen (2001) 209 CLR 1
- BP v R [2010] NSWCCA 159
- KT v R [2008] NSWCCA 51
- JM v R [2012] NSWCCA 83
- HJ v R [2014] NSWCCA 21
- Clarke-Jeffries v R [2019] NSWCCA 56
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- R v Mastronardi [2000] NSWCCA 12
- R v Medich (No 43) [2018] NSWSC 886
- Dellow v R [2020] NSWCCA 301
- Mill v The Queen (1988) 166 CLR 59
- R v Shalala (CCA (NSW), 1 June 1989, unreported)