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Supreme Court 23 June 2023

R v Roshan (Sentence)

[2023] NSWSC 704

Homicide
CRIME SENTENCE MANSLAUGHTER EXCESSIVE SELF DEFENCE

Citation: R v Roshan (Sentence) [2023] NSWSC 704
Court: Supreme Court of New South Wales
Date: 23 June 2023
Judge: Fagan J

Background

The offender, a 34-year-old man, was charged with murdering a 59-year-old woman in Liverpool in the early morning of 20 December 2020. He had met the deceased, who was homeless and affected by substances, outside a convenience store near his hotel and had invited her to sleep in his room. A fatal altercation occurred the following morning.

At trial, the offender admitted striking the deceased but claimed he had done so only once and in response to a perceived threat. The Crown alleged he had inflicted multiple blunt force injuries to her head. The offender raised self-defence, excessive self-defence, and extreme provocation. The jury acquitted him of murder but convicted him of manslaughter, indicating acceptance of one of those partial defences.

Both the offender and the deceased had significant histories of substance abuse and social instability. The deceased had been diagnosed with schizophrenia and had seriously injured her husband in a stabbing just weeks before her death. The offender had experienced drug-induced psychosis, domestic violence breaches, and long-term homelessness.

  • What findings of fact were consistent with the jury's verdict of manslaughter (as opposed to murder), and how should those findings inform sentence?
  • What was the objective seriousness of the offending in the context of excessive self-defence?
  • Whether the offender's mental health history or drug-affected state reduced his moral culpability.
  • Whether special circumstances existed under the Crimes (Sentencing Procedure) Act 1999 (NSW) to justify a reduction in the non-parole period ratio.

Decision

Fagan J conducted a detailed review of the trial evidence to identify findings consistent with the jury verdict. His Honour concluded that the deceased had verbally threatened to stab the offender and may have been holding something behind her back, giving rise to a belief that she had a knife. Even accepting that belief, however, the deceased was shorter, evidently physically impaired, and presented a threat that could have been neutralised by, at most, a single blow.

Instead, the offender knocked the deceased to the floor and subjected her to a ferocious and prolonged beating, including stomping on her head, causing fatal injuries. His Honour characterised this response as grossly disproportionate to any threat as the offender perceived it, placing the objective seriousness of the offending at the higher end of the range for manslaughter.

His Honour rejected any suggestion that psychiatric disorder contributed to the commission of the offence or reduced the offender's moral culpability. The possible disorientation from long-term self-induced intoxication with alcohol, cannabis, heroin, and methamphetamine could not be taken into account in mitigation under established principle.

The submission for special circumstances was also rejected. The default non-parole period ratio under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) would produce a parole period of sufficient length to support supervised rehabilitation and reintegration. His Honour also noted that, upon completion of the sentence, the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) would apply.

Orders Made

  • The offender was sentenced to 12 years imprisonment for manslaughter, commencing 20 December 2020 and expiring 19 December 2032.
  • A non-parole period of 9 years was set, expiring 19 December 2029.
  • The earliest eligible parole date is 19 December 2029.
  • The offender was advised that the Crimes (High Risk Offenders) Act 2006 (NSW) will apply on completion of the sentence.

Key Takeaways

  • A jury verdict of manslaughter requires the sentencing court to reconstruct, from trial evidence, the factual findings consistent with that verdict before determining the objective gravity of the offending.
  • Excessive self-defence as a partial defence to murder does not diminish culpability where the response to the perceived threat was grossly disproportionate; in this case, the sustained and ferocious nature of the beating placed the offending toward the higher end of manslaughter seriousness.
  • Long-term, self-induced substance abuse that may have distorted the offender's perceptions cannot be taken into account to reduce moral culpability at sentence.
  • Special circumstances under section 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were not established merely because the offender would benefit from extended supervision to support drug rehabilitation, where the default parole period was adequate for that purpose.
  • The Supreme Court imposed a 12-year head sentence with a 9-year non-parole period, reflecting both the gravity of the lethal violence and the absence of any meaningful mitigating factors going to culpability.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 23, 24, 418, 421
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- Smith v R [2015] NSWCCA 193