Citation: R v Tammer-Spence [2026] NSWSC 1090
Court: Supreme Court of New South Wales
Date: 11 September 2026
Judge(s): Cavanagh J
Background
On the evening of 23 September 2024, the offender left his nearby home to collect a takeaway food order from a restaurant on Marrickville Road, Marrickville. He encountered the deceased and two companions on the footpath. A verbal altercation followed, during which the deceased made a threatening remark that the offender understood as an imminent threat to shoot him. The offender stabbed the deceased once in the chest with a knife. The deceased died at the scene from a penetrating wound to the right side of his heart.
The offender was initially charged with murder and pleaded not guilty. Shortly before the jury was empanelled for trial in July 2026, the Crown accepted his guilty plea to manslaughter in full satisfaction of the indictment. The agreed basis for the manslaughter conviction was excessive self-defence: the offender was acting in self-defence but used unreasonable force in doing so, pursuant to section 421 of the Crimes Act 1900 (NSW).
The matter came before Cavanagh J for sentencing. The court received extensive evidence including psychiatric and psychological reports, the offender's criminal history, corrective services records, and a victim impact statement from the deceased's sister, who described the profound and lasting loss suffered by the deceased's family.
Legal Issues
- How objectively serious was the offending, given that the force used was excessive rather than entirely unprovoked?
- How should the offender's deprived background, chronic mental health conditions, and serious criminal history bear on the assessment of his moral culpability, applying the principles in Bugmy v The Queen and DPP (Cth) v De La Rosa?
- What weight should be given to the offender's early plea of guilty, his expressed remorse, and his prospects of rehabilitation?
- Whether special circumstances existed justifying a variation to the standard ratio between the non-parole period and the total sentence term.
- What sentence was appropriate having regard to all objective and subjective factors, and applicable sentencing comparisons?
Decision
Objective seriousness: Cavanagh J assessed the offending as being in the mid-range of objective seriousness for manslaughter. The court noted that, while a single stab wound causing death in a public place is plainly grave, the applicable framework for manslaughter by excessive self-defence requires attention to the degree to which the force used was unreasonable or excessive. The fact that the offender genuinely believed he faced an imminent threat, even if that belief led to a disproportionate response, was relevant to the objective assessment.
Moral culpability and subjective circumstances: The court applied the principles from Bugmy and De La Rosa in considering the offender's substantially deprived background and long-standing, serious mental health difficulties. Those factors reduced his moral culpability, though the court also noted the offender's serious prior criminal history, including sentences for significant earlier offending. The court observed that the offender had spent considerable time in custody over his adult life and faced a real risk of institutionalisation, which was a relevant consideration in structuring the sentence.
Plea of guilty and remorse: The offender received a discount for his guilty plea, which was entered at a relatively early opportunity given the procedural history. The court accepted evidence of genuine remorse, though it noted the offender's prospects of rehabilitation were poor, having regard to his history and the chronic nature of his mental health conditions.
Special circumstances: Cavanagh J found special circumstances existed, warranting a greater than usual proportion of the sentence being served on parole. The court identified the offender's need for extended supervision and support in the community upon release, including his risk of institutionalisation and the complexity of his mental health needs, as the basis for this finding.
Orders Made
- The offender was sentenced to a total term of imprisonment of 8 years and 3 months, commencing 25 November 2024 and expiring 24 February 2033.
- A non-parole period of 5 years and 5 months was imposed, with the offender eligible for parole on 24 April 2030.
- The court directed that the offender's solicitor inform him of the operation of the Crimes (High Risk Offenders) Act 2006 (NSW), given that the offence constitutes a "serious violence offence" within the meaning of that Act.
Key Takeaways
- For manslaughter by excessive self-defence, the degree to which the force used was unreasonable or excessive is a central consideration in assessing objective seriousness, rather than treating all fatal stabbings as equivalent in gravity.
- Under the principles in Bugmy v The Queen, a severely deprived background and chronic mental health conditions can reduce moral culpability even where an offender has a substantial prior criminal history; those matters do not cancel each other out.
- A finding of special circumstances is available where the offender's particular vulnerabilities, including the risk of institutionalisation and complex mental health needs, make an extended parole period appropriate to support reintegration.
- The Supreme Court confirmed that the standard of proof beyond reasonable doubt applies to any findings adverse to the offender at sentence, consistent with The Queen v Olbrich.
- Where the Crown accepts a plea to manslaughter in full satisfaction of a murder indictment, the sentencing court proceeds on the agreed basis for the lesser offence, here excessive self-defence, and the objective assessment is shaped by that agreed factual foundation.
Legislation and Cases Referenced
Legislation
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes Act 1900 (NSW), ss 24, 421
Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- KL v R [2026] NSWCCA 87
- LK v R [2025] NSWCCA 143
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Newburn v R [2022] NSWCCA 139
- Paterson v R [2021] NSWCCA 273
- R v Aljubouri; R v YA; R v Shaker [2019] NSWSC 180
- R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep)
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
- R v Gale [2020] NSWSC 808
- R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520
- R v JM (Sentence) [2024] NSWSC 1345
- R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; (2005) 56 A Crim R 372
- R v MR, JB and CS (young persons) (No 5) [2024] NSWSC 912
- R v Stanley (No 2) [2023] NSWSC 74
- R v TH [2025] NSWSC 1578
- Taylor v R [2026] NSWCCA 32
- The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14