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District Court 17 October 2024

R v Lawrence

[2024] NSWDC 485

Assault & violenceHomicideTheft & property
CRIME SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT PROVOCATION INTELLECTUAL IMPAIRMENT

Citation: R v Lawrence [2024] NSWDC 485
Court: District Court of New South Wales
Date: 17 October 2024
Judge(s): Fitzsimmons SC DCJ

Background

The offender pleaded guilty to manslaughter (unlawful and dangerous act) under s 18(1)(b) of the Crimes Act 1900, carrying a maximum penalty of 25 years imprisonment with no standard non-parole period. The offence arose from events on 24 April 2023 in Mangerton, NSW, when the deceased and a companion entered a unit armed with a knife and a screwdriver, threatening occupants and demanding valuables before fleeing with methamphetamine, cash, and a handbag.

Following the robbery, the offender retrieved two knives and pursued the deceased through nearby streets. A confrontation followed during which the offender stabbed the deceased multiple times to the left arm, severing the brachial artery. The deceased was transported to Wollongong Hospital and died on 26 April 2023 from a sharp force injury to the left brachial artery and its sequelae.

The offender had a prior criminal history including assault and property offences, for which he had received non-custodial sentences. Significant subjective material was placed before the court, including a neuropsychological report and correspondence from his foster parents.

  • What weight should be given to provocation by the deceased in reducing the offender's moral culpability?
  • How does the offender's intellectual impairment, including a possible diagnosis of Foetal Alcohol Spectrum Disorder (FASD), affect the sentencing exercise?
  • What reduction, if any, applied for the utilitarian value of the guilty plea?
  • How should the sentence commencement date be calculated, having regard to an unrelated custodial sentence already being served?
  • What is the appropriate balance between general deterrence, specific deterrence, and the offender's reduced moral culpability?

Decision

The court accepted that the provocation offered by the deceased was a relevant mitigating factor. The deceased had armed himself, threatened to stab occupants, and carried out a robbery before fleeing. The offender's immediate response to chase and confront the deceased, while not amounting to a legal defence, reduced his moral culpability for the resulting death.

The neuropsychological report of Dr Molly Schaefer established that the offender had a borderline full-scale IQ, an extremely low verbal IQ, and a history of significant learning difficulties consistent with a possible FASD diagnosis. The court treated this intellectual impairment as a further mitigating factor that reduced moral culpability and also limited the weight to be given to general deterrence.

The offender received a 25% discount on the head sentence for the utilitarian value of the guilty plea. In calculating the commencement date, the court rejected the Crown's submission that an unrelated District Court sentence reflected generous backdating, noting that enquiring into the reasoning of the prior sentencing judge was impermissible. Applying totality principles and having regard to the continuous period of incarceration from 23 December 2022, the court fixed 30 June 2023 as the commencement date.

Starting from a head sentence of 10 years, and applying the 25% plea discount, the court arrived at a sentence of 7 years and 6 months with a non-parole period of 4 years and 10 months.

Orders Made

  • The offender is convicted of manslaughter.
  • A sentence of imprisonment of 7 years and 6 months is imposed, commencing 30 June 2023 and expiring 29 December 2030.
  • A non-parole period of 4 years and 10 months is imposed, expiring 29 April 2028.
  • The earliest date the offender is eligible for release to parole is 29 April 2028.

Key Takeaways

  • Provocation by the deceased, even where it does not constitute a legal defence, can reduce an offender's moral culpability and carry significant weight in the sentencing exercise for manslaughter.
  • Intellectual impairment, including conditions such as FASD supported by neuropsychological evidence, operates both to reduce moral culpability and to diminish the relevance of general deterrence as a sentencing objective.
  • A 25% discount applied to the head sentence for the utilitarian value of a guilty plea to a serious charge, consistent with established authority under the Crimes (Sentencing Procedure) Act 1999.
  • Where an offender is already serving an unrelated custodial sentence, totality principles require the court to consider the overall period of continuous incarceration when fixing the commencement date of the new sentence, rather than assuming the earlier sentence involved generous backdating.
  • Statements made by an offender upon arrest, including expressions of indifference to the victim's welfare and assertions that the offender would repeat the conduct, form part of the factual matrix before the sentencing court, even where the offender subsequently expressed remorse.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Baden v R [2020] NSWCCA 23
- Barlow v R [2008] NSWCCA 96
- Brown v R [2024] NSWCCA 136
- DC v R [2023] NSWCCA 82
- DH v R [2022] NSWCCA 200
- Director of Public Prosecutions v De La Rosa (2010) 205 A Crim R 1
- Giles-Adam v R; Preca v R [2023] NSWCCA 122
- KM v R [2023] NSWCCA 10
- Muldrock v The Queen (2011) 244 CLR 120
- Paterson v R [2021] NSWCCA 273
- Pender v R [2023] NSWCCA 291
- R v A1 (No 6) [2019] NSWSC 1581
- R v Eaton [2023] NSWCCA 125
- R v Sharrouf [2023] NSWCCA 13
- R v White (Court of Criminal Appeal, 23 June 1998, unreported)
- TM v R [2023] NSWCCA 185
- Tyne v Tasmania (2005) 15 Tas R 221