Citation: R v Smith [2021] NSWSC 928
Court: Supreme Court of New South Wales
Date: 26 July 2021
Judge: Walton J
Background
The offender, a 56-year-old man, was charged with murder following the fatal stabbing of the deceased with ornamental knives on 18 May 2018 at Argents Hill, NSW. From the outset, he admitted the stabbing but argued he acted in self-defence. He also raised the partial defences of excessive self-defence and extreme provocation.
The offender pleaded not guilty to murder but guilty to the alternative count of manslaughter, and had offered that plea as early as the Local Court proceedings. The Crown rejected that offer on both occasions, and the matter proceeded to a 12-day jury trial. After deliberation, the jury returned a verdict of not guilty of murder but guilty of manslaughter.
Walton J found that the jury accepted the partial defence of excessive self-defence as the basis for the manslaughter verdict. The offender had been in custody since his arrest on the date of the offence, and sentencing proceeded on that basis.
Legal Issues
- What was the appropriate sentence for manslaughter arising from excessive self-defence, having regard to objective seriousness and the full context of the killing?
- What weight should be given to the offender's subjective circumstances, including his personal history, mental health, remorse, and rehabilitation prospects?
- What discount applied to the sentence by reason of the guilty plea to manslaughter?
- Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), warranting adjustment of the non-parole period ratio?
Decision
Walton J applied the well-established principle that there is no hierarchy among manslaughter verdicts and that objective seriousness is assessed by reference to the specific facts of the killing rather than the category of manslaughter involved. His Honour treated the felonious taking of human life as the essential starting point, consistent with authority emphasising that the protection of human life is a fundamental objective of the criminal law.
The Crown did not contend that the maximum penalty of 25 years imprisonment was warranted, and his Honour proceeded on that basis. Applying the "instinctive synthesis" method endorsed by the High Court in Markarian v The Queen, his Honour weighed the objective gravity of a violent death against the offender's subjective circumstances, which included post-traumatic stress disorder, a history of drug and alcohol misuse, and evidence of some remorse and rehabilitation potential. A discount was applied for the guilty plea to manslaughter.
His Honour found special circumstances within the meaning of s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW), noting the offender would require ongoing counselling for PTSD and drug and alcohol issues upon release, and that supervision in the community was desirable. However, the downward adjustment to the non-parole period was kept modest, with his Honour mindful of avoiding double-counting and ensuring the non-parole period adequately reflected the gravity of the offending.
The only appropriate penalty was determined to be full-time incarceration. Walton J also noted the obligation under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) to inform the offender of the existence and potential application of that Act.
Orders Made
- The offender was sentenced to imprisonment with a non-parole period of 5 years and 6 months, commencing 18 May 2018 and expiring 17 November 2023.
- The balance of term was set at 2 years, commencing 18 November 2023 and expiring 17 November 2025.
- The offender becomes eligible for release on parole on 17 November 2023.
Key Takeaways
- There is no hierarchy of manslaughter verdicts in NSW: the objective seriousness of a manslaughter offence is assessed by the facts of the killing, not the legal category (such as excessive self-defence or unlawful and dangerous act) through which the verdict was reached.
- A finding of excessive self-defence, reducing what might otherwise have been murder to manslaughter, does not automatically place the offending at the lower end of the objective seriousness range; the surrounding circumstances of the violence remain central to the assessment.
- Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were established where the offender had identified needs for ongoing PTSD treatment and drug and alcohol counselling upon release, supporting a longer supervisory period in the community.
- In applying instinctive synthesis, the sentencing court kept the non-parole period adjustment for special circumstances modest, prioritising proportionality between the sentence and the gravity of the violent taking of a human life.
- The felonious taking of human life remains the fundamental starting point in all manslaughter sentencing, and courts must ensure that subjective circumstances do not divert attention from the law's role in protecting human life and punishing those who take it.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(a), 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 44
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Cases:
- Anderson v R [2018] NSWCCA 49
- Baumer v The Queen (1988) 166 CLR 51
- Cheung v The Queen (2001) 209 CLR 1
- Filippou v The Queen (2015) 256 CLR 47
- Hamzy v R [2018] NSWCCA 53
- Hawkins v R (1993) 67 A Crim R 64
- Ibbs v The Queen (1987) 163 CLR 447
- Jones v R [2009] NSWCCA 169
- Markarian v The Queen (2005) 228 CLR 357
- McDowall v R [2019] NSWCCA 29
- Misiepo v R [2017] NSWCCA 210
- Muldrock v The Queen (2011) 244 CLR 120
- Pitts v R [2014] NSWCCA 244
- R v Barbetta [2008] NSWSC 688
- R v Blacklidge (Unreported, NSWCCA, 12 December 1994)
- R v Borkowski (2009) 195 A Crim R 1
- R v Boyd [2004] NSWSC 263
- R v Dodd (1991) 57 A Crim R 349
- R v Fuller [2020] NSWSC 1580
- R v Geddes (1936) 36 SR (NSW) 554