AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 3 November 2023

R v Godfrey

[2023] NSWSC 1312

Assault & violenceHomicide
CRIME SENTENCE MANSLAUGHTER ON THE BASIS OF SELF DEFENCE WITH EXCESSIVE FORCE WHERE OFFENDER APPLIED CHOKE HOLD PLEA OF GUILTY

Citation: R v Godfrey [2023] NSWSC 1312
Court: Supreme Court of New South Wales
Date: 3 November 2023
Judge: Cavanagh J

Background

In the early hours of 4 April 2021, a 20-year-old offender applied a Brazilian jiu-jitsu chokehold known as the "rear naked choke" to 43-year-old Joseph Pagano, causing his death. The offender and the deceased had met only hours earlier while both were seeking to purchase drugs in the Haymarket area of Sydney. The offender had received some martial arts training as a teenager and was aware the hold could render a person unconscious if applied correctly, and that holding on too long carried serious risks.

The offender was initially charged with murder. A trial before Cavanagh J and a jury commenced in March 2023 but was aborted after the prosecution's forensic pathologist indicated she intended to change her evidence on the basis of material she had not previously seen. The offender was rearraigned in July 2023 and pleaded guilty to manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW), on the agreed basis that he had acted in self-defence but used excessive force under s 421 of that Act.

The sentencing hearing proceeded on largely agreed facts and agreed sentencing principles. The court received victim impact statements from the deceased's daughter and his brother, as well as extensive material about the offender's background, including reports from psychiatrists, neuropsychologists, and clinical psychologists.

  • What sentence was appropriate for manslaughter on the basis of self-defence with excessive force, where the offender was 20 years old at the time of the offending?
  • What weight should be given to the offender's traumatic upbringing and severe substance use disorder as mitigating factors?
  • Whether a discount applied to reflect the guilty plea, and if so, at what level.
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify a longer parole period.

Decision

Cavanagh J accepted that all manslaughter offences involving the taking of a human life are serious and must be sentenced accordingly. The court considered both the objective gravity of the offending, including the extended application of a hold the offender knew to be dangerous, and the subjective features, which were significant in the offender's favour.

The offender's background was a strong mitigating factor. He had experienced a difficult and traumatic upbringing, and expert evidence established he suffered from a severe substance use disorder. Cavanagh J applied the principle from Bugmy v The Queen (2013) 249 CLR 571 that the effects of a deprived and traumatic background do not diminish with time and remain relevant at sentencing. The court also found strong prospects of rehabilitation and accepted that the offender had demonstrated genuine remorse.

A discount was applied to reflect the guilty plea. Although the plea came after a jury had been empanelled and a trial had commenced, the court treated it as an early plea in light of the circumstances, including the aborted first trial and the inclusion of the manslaughter charge only at rearraignment. The court found special circumstances existed, noting the offender's severe substance use disorder would require a lengthy period of supervised parole with treatment and support.

The pre-discount sentence was assessed at 6 years and 4 months. After applying the discount for the guilty plea, the sentence imposed was 4 years and 9 months, with a non-parole period of 2 years and 10 months, adjusted downward from the default ratio to reflect the finding of special circumstances.

Orders Made

  • Total sentence of imprisonment: 4 years and 9 months.
  • Non-parole period: 2 years and 10 months.
  • Sentence dated from 4 April 2021 (date of custody).
  • Sentence expires: 3 January 2026.
  • First eligible for parole: 3 February 2024.
  • The offender's solicitor was directed to warn the offender of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C, as the offence constitutes a serious violence offence.

Key Takeaways

  • Under s 421 of the Crimes Act 1900 (NSW), where a person acts in self-defence but uses excessive force causing death, the offence is manslaughter rather than murder, carrying a maximum of 25 years imprisonment with no standard non-parole period.
  • A traumatic upbringing and severe substance use disorder can carry substantial mitigating weight at sentencing; the Supreme Court confirmed, applying Bugmy, that the relevance of such background circumstances does not diminish over time.
  • Sufficient grounds existed here to treat a plea entered after the collapse of a first trial as an early guilty plea, given that the manslaughter charge was added only at rearraignment.
  • Special circumstances warranting a longer parole period were established where the offender's rehabilitation required extended supervised treatment for substance use disorder in the community.
  • In fixing the sentence, the court engaged in an instinctive synthesis of all objective and subjective factors, consistent with Veen v R (No 2) (1988) 164 CLR 465, rather than mechanically weighting individual considerations in isolation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 421
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 30E

Cases:
- Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Blacklidge (NSWCCA, Gleeson CJ, 12 December 1995, unreported)
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Previtera (1997) 94 A Crim R 76
- R v Isaacs (1997) 41 NSWLR 374
- R v MD; R v BM; R v NA; R v JT (2005) 156 A Crim R 372; [2005] NSWCCA 342
- BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Hoskins v R [2021] NSWCCA 169
- Paterson v R [2021] NSWCCA 273
- R v Bean [2022] NSWSC 783
- R v Black (No 2) [2021] NSWSC 77
- R v Davis [2021] NSWSC 235
- R v Holmes (No 7) [2021] NSWSC 570
- R v Millwood [2012] NSWCCA 2
- R v Stanley (No 2) [2023] NSWSC 74