Citation: R v Russell [2023] NSWSC 90
Court: Supreme Court of NSW
Date: 15 February 2023
Judge: Cavanagh J
Background
The offender, a 38-year-old Aboriginal man, was charged with two counts of murder following the deaths of two people who attended his apartment block in Cartwright, South-Western Sydney on 17 December 2019. Both deceased had high levels of methylamphetamine in their systems and had come to the block apparently seeking a former resident who owed them money.
A jury acquitted the offender of both murders. The acquittals turned on self-defence: the jury found that the offender acted in complete self-defence when he stabbed the female victim, and in self-defence but with excessive force when he stabbed the male victim. The excessive force finding meant the latter verdict was manslaughter under s 421 of the Crimes Act 1900 (NSW), rather than murder or an outright acquittal.
The offender appeared for sentencing in respect of that single manslaughter conviction. He had been in custody since the date of the offending.
Legal Issues
- What findings of fact could the sentencing court make consistently with the jury's verdicts, given a substantial dispute between the parties about where and how the stabbing of the male victim occurred?
- What was the objective seriousness of the offending, given that the jury accepted the offender was acting in self-defence even if with excessive force?
- How should the offender's Aboriginal background and its associated disadvantage bear on the assessment of his moral culpability and the appropriate sentence?
- What discount, if any, applied for the offender's willingness to plead guilty to manslaughter before trial?
- Whether special circumstances existed justifying a variation from the standard non-parole period ratio.
Decision
Cavanagh J resolved the factual dispute about the location of the stabbing in the offender's favour, finding that the Crown had not established beyond reasonable doubt that the offender went downstairs with a knife before the confrontation. The court accepted, on the balance of probabilities, that the male victim came to the offender's apartment door and struck him across the face with a hatchet. Any findings adverse to the offender required proof beyond reasonable doubt; findings favourable to the offender required only the balance of probabilities.
On objective seriousness, his Honour placed the offending in the mid-range. While a human life was lost and a knife was used, the jury's verdict meant the offender was acting in self-defence and genuinely perceived a threat. The use of excessive force in that context is qualitatively different from an unprovoked attack, and the court treated that as a significant mitigating feature going to moral culpability.
The offender's Aboriginal background was addressed by reference to Bugmy v The Queen (2013) 249 CLR 571. His Honour accepted that the offender had experienced significant disadvantage, including exposure to alcohol and violence from an early age, and that this history was relevant to the assessment of his moral culpability. The court also noted the offender's stable employment, absence of relevant prior convictions, and the character references provided, which collectively supported a finding of good prospects of rehabilitation.
The court applied a 25% discount to reflect the offender's pre-trial offer to plead guilty to manslaughter, and found special circumstances warranting a longer-than-standard parole period to support rehabilitation and reintegration.
Orders Made
- The offender was sentenced to imprisonment comprising a non-parole period of 4 years and 5 months, with a balance of term of 2 years and 1 month.
- The sentence was backdated to commence on 17 December 2019 (the date of the offending and the offender's entry into custody).
- The non-parole period was set to expire on 16 May 2024, with the total sentence expiring on 16 June 2026.
- The offender's solicitor was directed to advise the offender of the potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) to his conviction.
Key Takeaways
- Under s 421 of the Crimes Act 1900 (NSW), a verdict of not guilty of murder but guilty of manslaughter is available where a jury is satisfied the accused acted in self-defence but used force that was not a reasonable response in the circumstances as the accused perceived them.
- Where a sentencing court makes findings of fact, adverse findings must be proved beyond reasonable doubt, while findings favourable to the offender require only satisfaction on the balance of probabilities.
- The objective gravity of manslaughter by excessive self-defence is assessed with particular attention to the genuine belief in the need for self-defence: the resulting moral culpability can be substantially reduced compared with an unprovoked killing, even where death resulted from a knife wound.
- Consistent with Bugmy v The Queen, a sentencing court must give full weight to the effect of profound Aboriginal disadvantage on an offender's moral culpability, without treating that consideration as diminishing in force on account of any prior exposure to the criminal justice system.
- A pre-trial offer to plead guilty to manslaughter, even where the offender contested the murder charge, may attract a sentencing discount where the offer represented a genuine utilitarian benefit to the administration of justice.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 418, 421
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 25E(3)(a)
Cases
- Bugmy v The Queen (2013) 249 CLR 571
- GAS v The Queen (2004) 217 CLR 198
- GG v R [2018] NSWCCA 280
- Matheson v R [2015] NSWCCA 108
- Muldrock v The Queen (2011) 244 CLR 120
- R v Blacklidge (NSWCCA, 12 December 1995)
- R v Borkowski (2009) 195 A Crim R 1
- R v Hoerler (2004) 147 A Crim R 250
- R v Trevenna (2004) 149 A Crim R 505
- Savvas v The Queen (1995) 183 CLR 1
- Smith v R [2015] NSWCCA 193
- The Queen v Olbrich (1999) 199 CLR 270
- Veen v The Queen (No 2) (1988) 164 CLR 465