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Supreme Court 23 May 2024

R v King; R v York

[2024] NSWSC 620

Homicide
SENTENCE MANSLAUGHTER SELF DEFENCE EXCESSIVE SELF DEFENCE

Citation: R v King; R v York [2024] NSWSC 620
Court: Supreme Court of New South Wales
Date: 23 May 2024
Judge: N Adams J

Background

The two offenders were a couple who had been staying with the first offender's sister and her partner at a residential address in Hamlyn Terrace. On 8 September 2022, the sister's partner returned home in an agitated state, having consumed alcohol, and made threatening statements including threats to kill the sister. The first offender intervened when the deceased began assaulting his sister, and a physical confrontation escalated to the point where the first offender stabbed the deceased, causing his death.

The first offender pleaded guilty to manslaughter on the basis of excessive self-defence: he had been acting to protect his sister, but used force that went beyond what was reasonably necessary in the circumstances. The second offender, then aged 19, assisted the first offender to evade detection for approximately 45 minutes before both were arrested later that same day.

Both offenders had remained in custody from the date of arrest, 8 September 2022, through to the sentencing hearing on 26 April 2024. The sentencing remarks were delivered on 23 May 2024, delayed to accommodate the attendance of the deceased's mother.

  • What was the appropriate sentence for manslaughter by excessive self-defence, taking into account the objective and subjective circumstances of the first offender?
  • What was the appropriate sentence for being an accessory after the fact to manslaughter, having regard to the second offender's youth, limited role, and time already served in pre-sentence custody?
  • Whether special circumstances existed to justify a departure from the standard ratio of non-parole period to head sentence.
  • Whether a conviction without further penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was appropriate for the second offender, given the time already served in custody.

Decision

Adams J imposed a sentence of imprisonment on the first offender for manslaughter. The court identified a starting point of 9 years imprisonment, which was reduced by 25 percent to reflect the early guilty plea, producing a head sentence of 6 years and 9 months. The court found special circumstances justifying an adjustment to the non-parole period, setting it at 4 years and 3 months. The sentencing remarks noted the wide variability in sentences for manslaughter, consistent with the High Court's observation in R v Lavender that manslaughter produces the greatest variety of circumstances affecting culpability of any criminal offence.

The court's assessment of the first offender's culpability took into account the context of the offending: he had intervened to protect his sister from a man who had made explicit threats to kill her and had physically assaulted her. The basis of the plea, excessive self-defence, meant the court accepted that while the force used was not reasonably necessary, the offender was acting in response to a genuine threat. Various subjective factors, including the offender's background, his use of methamphetamine, and the circumstances leading to the confrontation, were weighed in the sentencing exercise.

For the second offender, the court determined that a conviction recorded under s 10A of the Crimes (Sentencing Procedure) Act 1999, with no further penalty imposed, was appropriate. Her role was limited to assisting in evasion for approximately 45 minutes, she was 19 years old at the time, and she had already served over 19 months in pre-sentence custody. The court acknowledged her time served in custody and released her on bail at the conclusion of the sentence hearing, having indicated at that point that no further custodial penalty would be imposed.

The court also noted the notification obligation under s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) in respect of the first offender, directing his legal representatives to advise him of the implications of that Act.

Orders Made

Tyler King (manslaughter by excessive self-defence):
- Convicted and sentenced to imprisonment for 6 years and 9 months, commencing 21 April 2023 and expiring 20 January 2030
- Non-parole period of 4 years and 3 months, commencing 21 April 2023 and expiring 20 July 2027
- Notified of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW) pursuant to s 25C; legal representatives directed to advise him of the implications

Maddison York (accessory after the fact to manslaughter):
- Convicted pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) with no further penalty imposed, having regard to 1 year, 7 months and 9 days already served in pre-sentence custody

Key Takeaways

  • Manslaughter carries a maximum of 25 years imprisonment in NSW and has no standard non-parole period, reflecting the enormous range of circumstances in which the offence can arise. R v Lavender (2005) 222 CLR 67 confirms this wide sentencing discretion.
  • Where an offender pleads guilty at the earliest opportunity, a 25 percent discount to the head sentence is available, as applied here to reduce a starting point of 9 years to a final sentence of 6 years and 9 months.
  • Excessive self-defence in the context of intervening to protect a family member from threatened serious violence remains a relevant mitigating consideration in assessing the objective gravity of a manslaughter, even though the force used exceeded what was reasonably necessary.
  • A conviction without additional penalty under s 10A of the Crimes (Sentencing Procedure) Act 1999 can be available for an accessory after the fact where the offender's role was limited, the offender was young, and substantial pre-sentence custody has already been served.
  • Section 25C of the Crimes (High Risk Offenders) Act 2006 (NSW) requires the court to notify an offender convicted of a serious violent offence of the existence and potential application of that Act, with legal representatives directed to advise the offender accordingly.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 350, 421(1)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 9, 10A, 24, 44(2), 71, 86

Cases:
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dungay v R [2020] NSWCCA 209
- Fuller v R [2022] NSWCCA 203
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Newburn v R [2022] NSWCCA 139
- Paterson v R [2021] NSWCCA 273
- Quinn v R [2023] NSWCCA 229
- R v Blacklidge (NSWCCA, Gleeson CJ, 12 December 1995, unreported)
- R v Charters [2020] NSWSC 842
- R v Hannah Quinn (No 1) [2021] NSWSC 493
- R v Lavender (2005) 222 CLR 67; [2005] HCA 37
- R v Muddle [2004] NSWSC 403
- R v Nancarrow [2022] NSWSC 455
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Stanley (No 2) [2023] NSWSC 74
- Smith v R [2015] NSWCCA 193
- TT v R [2014] NSWCCA 206