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Supreme Court 14 April 2022

R v Nancarrow

[2022] NSWSC 455

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT KILLING BY STABBING SENTENCE AFTER TRIAL

Citation: R v Nancarrow [2022] NSWSC 455
Court: Supreme Court of New South Wales
Date: 14 April 2022
Judge: Hamill J

Background

The offender and the deceased were two of four men sharing a property near Kempsey in northern New South Wales. On 2 August 2019, after a day of drinking, a dispute arose when the deceased asked the offender to obtain methylamphetamine for him. The offender, a recovering addict on a methadone programme, refused. The deceased punched the offender in the face earlier in the evening, then apparently resumed the confrontation later that night.

The fatal incident occurred on a staircase inside the house. The offender stabbed the deceased with a knife, killing him. The offender was charged with murder and stood trial at Port Macquarie in March 2022.

The jury acquitted the offender of murder but convicted him of manslaughter. Two pathways to that verdict were possible: either the jury was not satisfied the offender formed the specific intent required for murder (that is, an intent to kill or cause grievous bodily harm), or the jury found he acted in excessive self-defence. The sentencing proceeded before Hamill J in Sydney on 1 April 2022.

  • What factual findings could properly be made consistently with the jury's manslaughter verdict, particularly regarding how the offender came to have the knife and the precise mechanism of the stabbing?
  • Where on the spectrum of objective seriousness did this manslaughter fall, given the breadth of conduct capable of constituting that offence?
  • What weight should be given to mitigating factors, including the deceased's role as first aggressor, the offender's status as a recovering addict, his remorse, and his prospects of rehabilitation?
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence under the Crimes (Sentencing Procedure) Act 1999 (NSW), s 44.

Decision

Hamill J made findings of fact where the evidence permitted, applying the standard that aggravating factors required proof beyond reasonable doubt and mitigating factors required proof on the balance of probabilities. The judge accepted that the deceased had been the first aggressor earlier in the evening, punching the offender in the face, a finding supported by hospital photographs showing bruising. However, the court rejected significant parts of the offender's own account, including his evidence that he had merely been using the knife to pare his fingernails by lamplight when the confrontation arose on the staircase. That explanation was inconsistent with objective findings, including the location of a headlamp recovered at the scene.

On objective seriousness, Hamill J placed the offending towards the low end of the range. The court emphasised the breadth of conduct capable of constituting manslaughter, noting that the offence can be committed in many ways and that sentencing must reflect where within that wide range this particular killing fell. Relevant factors included the absence of planning or premeditation, the use of a weapon, the context of a confrontation initiated by the deceased, and the finding that the offender did not intend to kill or cause grievous bodily harm.

The court found the offender had good prospects of rehabilitation, expressed genuine remorse, and had a drug history that provided relevant context, though not excuse, for the events. His criminal record was taken into account but did not dominate the sentencing calculus. Special circumstances were found to exist, justifying a greater-than-standard proportion of the sentence being served on parole, to support the offender's rehabilitation in the community.

A starting point of 10 years was reduced by 25 percent to arrive at a head sentence of 7.5 years, with a non-parole period of 4 years, reflecting the special circumstances finding.

Orders Made

  • The offender convicted of the manslaughter of the deceased.
  • Sentenced to a non-parole period of 4 years, commencing 2 August 2019 and expiring 1 August 2023.
  • Balance of term of 3.5 years, commencing 2 August 2023 and concluding 1 February 2027.
  • Eligible for parole at the expiration of the non-parole period, with the court recommending release at that time or as soon as practicable thereafter, subject to conduct in custody.
  • Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender's lawyers directed to explain the existence and potential impact of that Act.

Key Takeaways

  • The Supreme Court confirmed that sentencing for manslaughter requires careful positioning within a wide spectrum, because the offence can be committed in many different ways and the range of objective seriousness is correspondingly broad.
  • Where a jury's verdict is consistent with two possible pathways, the sentencing judge must make factual findings that are not inconsistent with that verdict, applying different standards of proof depending on whether the finding is aggravating or mitigating.
  • Rejection of an offender's own evidence at sentencing is possible where that evidence is contradicted by objective material, such as physical evidence recovered at the scene or forensic findings inconsistent with the account given.
  • The court found that the deceased's status as first aggressor, the absence of premeditation, and the offender's lack of intent to kill or cause grievous bodily harm collectively placed the offending towards the low end of seriousness, even though a weapon was used and actual lethal violence was inflicted.
  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 were established on the facts, permitting a non-parole period proportionally shorter than the statutory default, in order to provide an extended period of supervised parole to support rehabilitation.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(d), 21A(3)(e), 44
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)

Cases: No cases were cited in the material provided.