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Supreme Court 16 July 2021

R v Chatimba (No 2)

[2021] NSWSC 863

Assault & violenceHomicide
CRIMINAL LAW SENTENCE MURDER OFFENDER FOUND GUILTY AT TRIAL WHERE JURY REJECTED SELF DEFENCE AND EXCESSIVE SELF

Citation: R v Chatimba (No 2) [2021] NSWSC 863
Court: Supreme Court of New South Wales
Date: 16 July 2021
Judge: Wright J

Background

The offender was convicted of murder following a jury trial. On 11 August 2018, he fatally stabbed the deceased outside a residential address at Dutch Place, St Clair, inflicting wounds to the chest, shoulders, forearms and wrist. The deceased died from blood loss before paramedics arrived.

The offender and the deceased had known each other for some time. They worked together in the scaffolding industry, and the deceased had previously helped the offender find work. The events arose from a series of angry telephone calls on the evening of the stabbing, connected to a dispute over the offender's former partner, Ms Sanders, and access to his daughters. The deceased, who had previously intervened in the offender's domestic affairs, came to the address believing a woman was being harmed.

The jury rejected both self-defence and excessive self-defence (sometimes called defensive manslaughter, where a person uses force that was genuinely defensive but excessive in the circumstances). The offender stood to be sentenced on the basis that, while he had not intended to kill, he had intended to inflict grievous bodily harm.

  • What findings of fact were consistent with the jury's verdict, and what did the sentencing court find occurred?
  • Where did the offence sit on the scale of objective seriousness for murder?
  • Whether provocation (as a mitigating factor at sentencing, not a defence) was established.
  • What weight should be given to the offender's prior good character, limited criminal history, genuine remorse, and prospects of rehabilitation?
  • Whether special circumstances existed to justify departing from the standard ratio of non-parole period to total sentence.

Decision

Wright J found that the offence fell somewhat below the middle of the range of objective seriousness for murder. Although the violence was lethal and unprovoked in any legally relevant sense, the court found that the offender had not intended to kill, and that this reduced the objective gravity of the offence relative to more serious cases within the murder category.

The court declined to find provocation as a mitigating factor. While there were angry telephone exchanges before the stabbing and the deceased had previously intervened in the offender's domestic relationships, the circumstances did not establish provocation to the standard required for it to operate as a mitigating consideration in sentencing.

Several subjective factors operated significantly in the offender's favour. He had prior good character, a very limited criminal record (confined to driving offences), genuine remorse, and accepted responsibility for his actions. The court assessed his prospects of rehabilitation as good. These factors were given meaningful weight in reducing the sentence below what the objective circumstances alone would have warranted.

The court found no special circumstances that would justify varying the standard relationship between the non-parole period and the balance of term. The standard non-parole period for murder under NSW law is 20 years, and while the sentence imposed fell below that figure, Wright J applied the standard ratio in constructing the sentence.

Orders Made

  • The offender was sentenced to imprisonment with a non-parole period of 15 years and 9 months, commencing 11 August 2018 and expiring 10 May 2034.
  • The balance of term was set at 5 years and 3 months, expiring 10 August 2039.
  • The offender is not eligible for parole before 10 May 2034.
  • The court noted that, as murder is a serious violence offence under the Crimes (High Risk Offenders) Act 2006 (NSW), the State may apply for continued detention or an extended supervision order before the sentence expires.

Key Takeaways

  • The Supreme Court assessed this murder as falling somewhat below the middle of the range of objective seriousness, primarily because the offender lacked an intention to kill, intending instead to inflict grievous bodily harm.
  • Prior good character and a minimal criminal record can carry real mitigating weight in murder sentencing, even where the offence itself is serious, provided the court is satisfied those qualities are genuine.
  • Provocation as a sentencing mitigant requires more than anger or prior conflict between the offender and the deceased; the circumstances here did not meet the threshold despite a history of interpersonal tension.
  • Genuine remorse and acceptance of responsibility, where found to be authentic, are recognised mitigating factors under the Crimes (Sentencing Procedure) Act 1999 (NSW) and can contribute to a sentence below the standard non-parole period.
  • Persons convicted of murder are subject to potential post-sentence intervention under the Crimes (High Risk Offenders) Act 2006 (NSW), and sentencing courts are required to notify offenders of this at the time of sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), including ss 3A, 21A, 30E, 44, 61

Cases:
- Aslan v R [2014] NSWCCA 114
- R v Halloun [2014] NSWSC 1705
- R v Hill (1981) 3 A Crim R 397
- R v RJB [2019] NSWSC 719
- R v Yavuz (No 6) [2019] NSWSC 95