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Supreme Court 26 July 2024

R v MR, JB and CS (young persons) (No 5)

[2024] NSWSC 912

Assault & violenceHomicidePublic order & justice offences
CRIME SENTENC E MANSLAUGHTER BY EXCESSIVE SELF DEFENCE A FFRAY JUVENILE OFFENDERS

Citation: R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912
Court: Supreme Court of New South Wales
Date: 26 July 2024
Judge: Huggett J

Background

On 4 June 2022, three juvenile males attended a social gathering at a private residence in Ropes Crossing in Western Sydney. All three were aged between 16 and 17 at the time. The gathering also included a 16-year-old who died following a confrontation at the front of the property in the early hours of the morning.

The confrontation began after the deceased made an accusation about a female attendee. A verbal dispute escalated, and the deceased blew cigarette smoke in the face of one of the three accused, MR, and made gestures suggesting he wanted to fight. MR then punched the deceased, triggering a further altercation. MR had brought a large hunting knife to the gathering, concealed in a box in an Uber, which he carried out of a general fear of knife crime in the area. The deceased died from stab wounds inflicted during the incident.

The matter came before Huggett J for sentencing following a jury trial in March 2024. The jury found MR not guilty of murder but guilty of manslaughter. JB and CS were acquitted of both murder and manslaughter, but faced related charges of affray and wielding a knife in a public place.

  • What sentence was appropriate for MR's conviction for manslaughter, given his youth, personal circumstances, and pre-trial offer to plead guilty?
  • Whether JB and CS should be convicted and sentenced for affray, or dealt with by dismissal of the charge without conviction under the Children (Criminal Proceedings) Act 1987 (NSW) (CCPA)?
  • Whether the evidence established beyond reasonable doubt that JB or CS had wielded a knife in a public place on the night in question?
  • How the principles governing the sentencing of young offenders, including the primacy of rehabilitation, should be applied across each accused?
  • What discount applied to each offender under s 25E of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA) for pre-trial offers to plead guilty?

Decision

MR (manslaughter). Huggett J characterised the manslaughter as falling within the lower range of objective seriousness. The killing arose from a confrontation that escalated rapidly, and the Court accepted the basis of excessive self-defence. MR's moral culpability was reduced by his youth, immaturity, and difficult personal background. The Court gave considerable weight to rehabilitation as the paramount sentencing consideration for a young offender, affording significantly reduced weight to general deterrence and retribution. Before applying any discount, the Court assessed the appropriate sentence at six years' imprisonment.

MR had offered to plead guilty to manslaughter before committal, entitling him to a 25% reduction under s 25E of the CSPA. That reduction brought the final sentence to four years and six months, with a non-parole period of two years and six months. The Court found special circumstances warranting a departure from the standard non-parole ratio, to allow for a longer supervised parole period in recognition of MR's rehabilitation needs. The sentence was backdated to commence from the date MR was taken into custody on 28 July 2022.

JB. JB was acquitted of manslaughter at trial but had previously offered to plead guilty to that offence before committal, an offer the Crown did not accept. The Court accepted this offer exceeded what was needed to constitute an equivalent reasonably available plea, entitling JB to a 25% discount under s 25E of the CSPA in relation to the affray charge. Taking into account the circumstances of the affray and JB's personal circumstances, the Court found the affray proven but did not record a conviction, instead ordering the charge dismissed under s 33(1)(a) of the CCPA.

CS. CS had offered to plead guilty to affray before committal, again an offer the Crown declined. CS was also entitled to a 25% reduction under s 25E of the CSPA. The Court took the same approach as for JB: finding the affray proven, but exercising its discretion under s 33(1)(a) of the CCPA to dismiss the charge without recording a conviction. Neither JB nor CS had been armed on the night, and the evidence did not establish beyond reasonable doubt that either had wielded a knife in a public place. That charge was dismissed against both.

Orders Made

  • MR convicted of manslaughter and sentenced to imprisonment for 4 years and 6 months, commencing 28 July 2022 and expiring 27 January 2027, with a non-parole period of 2 years and 6 months commencing 28 July 2022 and expiring 27 January 2025.
  • MR ordered to serve the whole of his sentence prior to release on parole as a juvenile offender.
  • Affray found proven against JB and CS, but no conviction recorded; charges dismissed against both under s 33(1)(a) of the CCPA.
  • Charge of wielding a knife in a public place dismissed against both JB and CS, not having been proven beyond reasonable doubt.

Key Takeaways

  • Under the CCPA, rehabilitation is the paramount sentencing consideration for young offenders. General deterrence and retribution may be afforded significantly reduced weight, even where the offence is a serious children's indictable offence dealt with according to law.
  • A pre-trial offer to plead guilty to an offence, even where the Crown declines the offer, can still attract a 25% sentence reduction under s 25E of the CSPA, provided the offer constitutes a reasonably equivalent plea to the offence ultimately proved.
  • Where a young person is convicted or found guilty of an offence but the sentencing court exercises its discretion under s 33(1)(a) of the CCPA, the charge may be dismissed without recording a conviction, reflecting the Act's emphasis on avoiding the stigma of a criminal record for juvenile offenders where appropriate.
  • Manslaughter by excessive self-defence does not carry a fixed sentencing range; the Court is required to assess the objective seriousness of the particular offending and the offender's moral culpability individually, with youth and immaturity capable of significantly reducing that culpability.
  • The absence of proof that co-accused were armed, and the Crown making no submission to the contrary on a related charge, were factors the Court noted in dismissing the knife-wielding charge against JB and CS.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), Pt 3, Div 4, ss 3, 6, 19(3), 19(4), 31(6), 33(1)(a)
- Crimes Act 1900 (NSW), s 93C(1) (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25E, 44(2)
- Summary Offences Act 1988 (NSW), s 11E(1)(a) (wielding a knife in a public place)

Cases
- BP v R (2010) A Crim R 379
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unreported)
- R v GDP (1991) 53 A Crim R 112
- R v Loveridge [2014] NSWCCA 120
- R v Millwood [2012] NSWCCA 2
- Tepania v R [2018] NSWCCA 247
- Williams v R [2012] NSWCCA 172