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Supreme Court 25 October 2024

R v JM (Sentence)

[2024] NSWSC 1345

Homicide
CRIME SENTENCE MANSLAUGHTER EXCESSIVE SELF DEFENCE TRIAL BY JUDGE ALONE

Citation: R v JM (Sentence) [2024] NSWSC 1345
Court: Supreme Court of New South Wales
Date: 25 October 2024
Judge: Dhanji J

Background

In June 2024, Dhanji J found the offender (JM) guilty of the manslaughter of a young man referred to as Liam, following a trial by judge alone: R v JM (Verdict) [2024] NSWSC 773. JM was 17 years old at the time of the offence and had no prior criminal record. The basis of his liability was excessive self-defence, meaning the court accepted he believed he needed to defend himself but used force that was not reasonably proportionate in the circumstances.

The fatal incident occurred on 29 May 2022 at a KFC restaurant in Casino, in the Northern Rivers region of New South Wales. It arose from a prolonged and escalating conflict in which the deceased had expressed repeated hostility toward JM, including challenging him to fights on multiple occasions, attending his home with a group of armed associates, and, on the night in question, arming himself with knuckledusters and going to the KFC specifically to confront JM.

During the confrontation outside the restaurant, JM was outnumbered, held down, and punched and kicked by multiple people for around nine seconds. He retrieved a knife and swung it to clear the space around him. In doing so, he fatally wounded Liam. The court found he had no intention to kill.

  • What sentence is appropriate for manslaughter by excessive self-defence committed by a 17-year-old offender with cognitive impairment?
  • To what extent do the offender's personal circumstances, including Fetal Alcohol Spectrum Disorder (FASD), ADHD, age, and lack of maturity, reduce moral culpability?
  • Whether the sentence should be served in a juvenile detention centre rather than an adult prison, having regard to the offender's age and vulnerabilities under the Children (Criminal Proceedings) Act 1987 (NSW).

Decision

Dhanji J found that the moral culpability of the offender was significantly reduced. The deceased had been the aggressor throughout the lead-up to the incident, had armed himself, and had gone to the KFC to seek out JM despite being discouraged from doing so. JM did not initiate the confrontation, had no interest in fighting, and only intervened when others were already under attack. The court found he genuinely believed he was going to be killed at the point he drew the knife.

The court accepted that JM's diagnosed conditions, namely FASD and ADHD, impaired his capacity to reason and regulate his behaviour in an already extreme and chaotic situation. These conditions were not merely background matters but bore directly on his culpability. Combined with his youth and immaturity, they substantially lowered the court's assessment of his blameworthiness, though they did not eliminate it entirely given that a young man lost his life.

Dhanji J also noted JM's unblemished criminal record and assessed his prospects of rehabilitation as very good. The sentencing exercise required balancing the loss of a young life, the real threat faced by the offender, the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and the particular circumstances of a young offender with cognitive impairment.

On the question of where the sentence would be served, the court found that special circumstances existed under ss 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW) to justify directing that the sentence be served as a juvenile offender. The court grounded that finding in JM's cognitive vulnerabilities and the need for a longer supervisory period suited to his particular needs and community reintegration.

Orders Made

  • JM convicted of the manslaughter of Liam.
  • Sentenced to 5 years imprisonment, commencing 29 May 2022.
  • Non-parole period of 2 years and 9 months, commencing 29 May 2022 and expiring 28 February 2025.
  • Balance of term of 2 years and 3 months, expiring 28 May 2027.
  • Direction under ss 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW) that the sentence be served as a juvenile offender until JM attains the age of 21.
  • Notification given under s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that that Act applies to JM and to the offence.
  • Direction for registration notice to be given pursuant to s 4 of the Child Protection (Offenders Registration) Act 2000 (NSW).

Key Takeaways

  • Manslaughter by excessive self-defence can attract significantly reduced moral culpability where the deceased was the consistent aggressor, the offender faced a genuine threat, and there was no intention to kill.
  • Diagnosed cognitive impairments such as FASD and ADHD, when established by evidence and directly connected to the circumstances of the offending, are capable of substantially reducing a sentencing court's assessment of blameworthiness.
  • Under ss 19(1) and 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW), a court may order that a sentence be served in juvenile detention rather than adult custody where "special circumstances" are established, and cognitive vulnerability can ground such a finding even where the offender has since turned 20.
  • Carrying a knife in anticipation of potential confrontation does not, without more, establish a willingness to use it offensively; the court here found the act of carrying the knife was consistent with a defensive mindset given the prior history of aggression toward JM.
  • A prior unblemished record and strong prospects of rehabilitation remain weighty factors in sentencing young offenders for serious violent offences, particularly where the offending arose in a chaotic and threatening situation rather than from pre-planned violence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 24
- Children (Criminal Proceedings) Act 1987 (NSW), ss 19(1), 19(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 30E(3)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C(1)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 4
- Child Protection (Offenders Registration) Regulation 2015 (NSW), reg 8(d)

Cases
- R v JM (Verdict) [2024] NSWSC 773
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Paterson v R [2021] NSWCCA 273
- R v Stanley (No 2) [2024] NSWSC 74