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Supreme Court 12 May 2023

R v Carberry (No 5)

[2023] NSWSC 523

Homicide
CRIMINAL LAW SENTENCING MANSLAUGHTER WHERE JURY ACQUITTED OF MURDER FINDINGS OF FACT AFTER VERDICT BASIS OF MANSLAUGHTER VERDICT

Citation: R v Carberry (No 5) [2023] NSWSC 523
Court: Supreme Court of New South Wales
Date: 12 May 2023
Judge: Hamill J

Background

The offender was charged with the murder of Sayed Sajjad Mousawi, who was killed in Griffith on 11 September 2020. The prosecution alleged that the offender, together with two others, lured the deceased to a location under the pretence of a planned transaction, intending to steal his car, and that the offender then stabbed him twice in the chest during the ensuing confrontation. The co-accused struck the victim with a metal pipe. Either stab wound was capable of causing death.

The offender's case at trial was that there was no robbery plan, that it was the deceased who produced the knife, and that he acted in self-defence. The jury acquitted him of murder but returned a verdict of guilty of manslaughter. The matter then proceeded to a sentencing hearing before Hamill J.

The sentencing judgment required the court to resolve a number of contested factual questions left open by the jury's verdict, and to weigh significant aggravating and mitigating factors, including the offender's severely deprived childhood and a concurrent breach of parole.

  • What factual findings could be made consistently with the jury's manslaughter verdict, including whether there was a plan to rob the deceased, who produced the knife, and whether the offender formed a specific intent to kill or cause grievous bodily harm
  • What was the legal basis of the manslaughter verdict: unlawful and dangerous act, or excessive self-defence
  • What sentencing discounts applied for the offender's offer to plead guilty and his facilitation of the administration of justice
  • How the offender's profoundly deprived and dysfunctional childhood affected his moral culpability
  • How to treat the commencement date of the sentence given the offender was on parole at the time of the offence
  • Whether special circumstances existed to vary the standard ratio between the non-parole period and the balance of term

Decision

Factual findings after the verdict. Hamill J identified four factual questions the jury's verdict left unresolved. On the robbery plan, his Honour found on the balance of probabilities that there was indeed a joint plan to rob the deceased. Although the principal witness to this plan was found to be unsatisfactory, her earlier recorded police interviews, made on the day of the offence, were regarded as more reliable than her evasive trial evidence. On the knife, his Honour found that the offender, not the deceased, produced it. This finding was established beyond reasonable doubt and constituted a significant aggravating feature.

On the question of intent, his Honour found it was not established beyond reasonable doubt that the offender intended to kill or cause grievous bodily harm at the time of the stabbing. The manslaughter verdict was therefore most consistent with the basis of unlawful and dangerous act rather than excessive self-defence, although his Honour noted the verdict did not require resolution of this question with certainty. What was certain was that the offender deliberately stabbed the deceased twice, and that his conduct was not a reasonable response in the circumstances as he perceived them.

Objective seriousness and aggravating factors. The offence was found to be objectively serious. The court identified several statutory aggravating factors, including that the offence was committed while the offender was on parole, that the offender was armed with a weapon, that the offence was committed in company, and that the offending was connected to a planned robbery. These matters elevated the objective gravity considerably.

Subjective factors and moral culpability. Hamill J gave substantial weight to the offender's background. The offender had endured a childhood described as deprived and deeply dysfunctional, marked by significant trauma. His Honour accepted this materially reduced his moral culpability, consistent with the principles in Lowe v The Queen and Postiglione v The Queen. The court applied a total sentencing discount of 12.5%: 10% for the utilitarian value of the guilty plea (offered before trial but after committal), and a further 2.5% for facilitating the administration of justice through cooperation that shortened the trial. Special circumstances were found to exist, warranting a longer than standard balance of term to support the offender's rehabilitation.

Orders Made

  • The offender was convicted of manslaughter of Sayed Sajjad Mousawi on 11 September 2020
  • Sentenced to a non-parole period of 5 years and 9 months, commencing 13 January 2021 and expiring 12 October 2026
  • Balance of term of 3 years, expiring 12 October 2029
  • Total sentence of 8 years and 9 months
  • The offender was warned that the Crimes (High Risk Offenders) Act 2006 (NSW) applies and directed that legal representatives explain its implications

Key Takeaways

  • Where a jury returns a verdict of manslaughter after a murder trial, the sentencing court must make its own factual findings on contested issues, applying the beyond reasonable doubt standard to aggravating facts and the balance of probabilities to mitigating facts.
  • A sentencing judge may find, as a matter consistent with a manslaughter verdict, that the offender produced a weapon and participated in a robbery plan, even where the jury's verdict did not expressly resolve those questions.
  • Statutory sentencing discounts under the Crimes (Sentencing Procedure) Act 1999 (NSW) can apply where an offender offered to plead guilty to manslaughter before trial, even where the final conviction follows a contested murder trial resulting in that lesser verdict.
  • A severely deprived and dysfunctional childhood, producing significant trauma, can substantially reduce an offender's moral culpability for an otherwise objectively serious homicide, consistent with the High Court's approach in Lowe and Postiglione.
  • Committing the offence while on parole for similar offending is a significant aggravating factor, but its weight in fixing the sentence commencement date may be moderated by the offender's youth and reduced moral culpability, so as to avoid a justifiable sense of grievance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 24, 98, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A, 25D(2)(b), 30E(3), 44, 47
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Patel v R [2019] NSWCCA 170
- Newburn v R [2022] NSWCCA 139
- Anderson v R [2018] NSWCCA 49
- Callaghan v The Queen (2006) 160 A Crim R 145
- Robb v R [2019] NSWCCA 113
- R v English [2000] NSWCCA 245
- Wiggins v R [2010] NSWCCA 30
- R v McHugh (1985) 1 NSWLR 588
- R v Halloun [2014] NSWSC 1705