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Supreme Court 12 February 2021

R v Black (No 2)

[2021] NSWSC 77

Assault & violenceHomicide

Citation: R v Black (No 2) [2021] NSWSC 77
Court: Supreme Court of New South Wales
Date: 12 February 2021
Judge: Cavanagh J

Background

The offender was charged with the murder of Jacob King following a fatal stabbing on 4 May 2018 in Port Macquarie, just two days after the offender was released on parole. The offender had gone to a friend's property to confront his former partner and her new partner, Mr King. A physical confrontation ensued in the front yard, during which Mr King produced a knife he had taken for self-protection. The offender grabbed Mr King's hand and, in a struggle, forced the knife into Mr King's chest, causing a wound that proved fatal.

The offender was originally arraigned in July 2019 and at that time pleaded not guilty to murder but guilty to manslaughter. That plea was not accepted by the Crown. The trial was delayed due to the COVID-19 pandemic and relisted for February 2021. On the first day of the fresh trial, the offender successfully applied to withdraw his earlier manslaughter plea. The trial commenced with a jury empanelled, but on 5 February 2021 the offender again pleaded not guilty to murder but guilty to manslaughter, and on this occasion the Crown accepted the plea in full satisfaction of the indictment.

The sentencing judgment addressed the offender's moral culpability, his background and personal circumstances, and a contested statutory question about the size of the discount he should receive for his guilty plea under the early plea provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • What findings of fact should be made about the circumstances of the killing, particularly the moments immediately before the knife entered Mr King's body?
  • What was the appropriate sentence for manslaughter where the killing resulted from excessive force in self-defence?
  • Whether the offender's guilty plea to manslaughter attracted the maximum 25 per cent discount under Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), or a reduced rate, given the procedural history of the plea.
  • In particular, whether manslaughter constitutes a "different offence" from murder for the purposes of s 25E(2)(b), which caps the discount at 10 per cent where a person pleads guilty to a different offence than originally charged after the proceedings have advanced.
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Findings of fact. Cavanagh J made factual findings on the balance of probabilities, consistent with the rule that adverse findings against an offender must be established beyond reasonable doubt. The court accepted that Mr King had armed himself out of genuine fear, pulled the knife in the front yard upon seeing the offender emerge from the house, and that the offender genuinely feared injury. The killing occurred during a struggle in which the offender forced Mr King's hand backwards and twisted it so the knife entered his chest. The court declined to find that Mr King had lunged at the offender, as that fact was disputed and not established to the requisite standard.

Moral culpability and objective seriousness. The court characterised the offending as falling into the middle range of manslaughter. The offender had effectively provoked the confrontation by going to the premises armed with jealousy and having already threatened Mr King inside the house. Mr King's fear was entirely rational in those circumstances. While the offender genuinely feared the knife and acted in what he believed to be self-defence, the force used was excessive and he bore significant responsibility for the situation that had developed.

The guilty plea discount. This was the central contested legal issue. Under Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender who pleads guilty at the "first reasonable opportunity" may receive a discount of up to 25 per cent. Section 25E(2)(b) limits the discount to 10 per cent where a person pleads guilty to "a different offence" after proceedings have progressed past an early stage. The prosecution argued that manslaughter, though the charged offence was murder, was a "different offence" and therefore the discount should be capped at 10 per cent. Cavanagh J rejected that argument. His Honour held that manslaughter is not a "different offence" for the purposes of s 25E(2)(b) in circumstances where the original indictment charged murder and manslaughter is an alternative verdict available on that charge under s 421 of the Crimes Act 1900 (NSW). However, having regard to the procedural history, including the withdrawal and re-entering of the plea and the stage at which the plea was ultimately accepted, the court fixed the discount at 10 per cent rather than the maximum.

Personal circumstances and special circumstances. The court took into account the offender's troubled background, including a history of acquired brain injury, cognitive difficulties identified by a neuropsychologist, a lengthy criminal history, time already spent in custody, and the genuine support of his family. The court found special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), justifying a longer balance of term relative to the non-parole period to allow for adequate supervision on release.

Orders Made

  • Total sentence of 6 years and 9 months imprisonment for manslaughter, representing a sentence of 7 years and 6 months reduced by 10 per cent for the guilty plea.
  • Non-parole period of 4 years and 4 months, with a balance of term of 2 years and 5 months.
  • Sentence backdated to commence on 7 July 2018.
  • Earliest eligible parole date: 6 November 2022.
  • The offender was warned of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW), as required by s 25C of that Act, given manslaughter is a "serious violence offence."

Key Takeaways

  • Manslaughter is not a "different offence" from murder under s 25E(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) where manslaughter is an alternative verdict open on a murder charge, meaning the 10 per cent cap in that provision does not automatically apply simply because the plea is to the lesser charge.
  • Notwithstanding that statutory finding, the court may still limit the discount to 10 per cent by reference to the overall procedural history, including withdrawal and re-entry of a plea and the stage at which proceedings stood when the plea was ultimately accepted.
  • Under the agreed facts standard applied in sentencing, adverse findings against the offender require proof beyond reasonable doubt; findings in the offender's favour are assessed on the balance of probabilities.
  • Where an offender bears significant moral responsibility for creating the circumstances of a confrontation, that background remains a relevant sentencing factor even though the killing ultimately occurred in the context of genuine (if excessive) self-defence.
  • Special circumstances justifying an adjustment to the standard ratio between non-parole period and head sentence can be established through evidence of cognitive impairment, rehabilitation needs, and the extent of supervision required on release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18, 421
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 1A, ss 3A, 25B, 25D, 25E, 25F, 28
- Interpretation Act 1987 (NSW), s 34
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)

Cases
- Barbieri v R [2016] NSWCCA 295
- Callaghan v R [2006] NSWCCA 58
- Cheung v The Queen (2001) 209 CLR 1
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- GG v R [2018] NSWCCA 280
- Magro v R [2020] NSWCCA 25
- Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496
- Muldrock v The Queen (2