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Supreme Court 25 September 2026

R v Marshall

[2026] NSWSC 1165

Assault & violenceHomicide
CRIME SENTENCE MANSLAUGHTER ON BASIS OF EXCESSIVE SELF DEFENCE NO PLANNING RELATED DISORDER

Citation: R v Marshall [2026] NSWSC 1165
Court: Supreme Court of New South Wales
Date: 25 September 2026
Judge: McGuire J

Background

On the evening of 23 March 2024, the offender fatally stabbed a man at a rural property at Bungonia, NSW. The stabbing arose from a confrontation initiated by the deceased, who had attended the property to confront the offender about an affair the offender had conducted with the deceased's partner. The offender had not been told the deceased would be there, and the deceased's attendance had been orchestrated without the offender's knowledge.

After approximately 15 to 20 minutes of angry questioning on the driveway, the offender turned to walk away. The deceased ran up, punched the offender several times and tore his t-shirt. The offender, who had armed himself with a hunting knife upon noticing the unknown car on the property, stabbed the deceased three times. The deceased died at the scene from two of those wounds.

The offender was charged with murder. Following a nine-day jury trial in May and June 2026, the jury acquitted him of murder and returned a verdict of guilty of manslaughter on the basis of excessive self-defence. The matter proceeded to sentencing before McGuire J.

Legal Issues

  • What were the objective facts of the offending, and on what basis should the offender be sentenced (specifically, whether he had an intent to kill or cause grievous bodily harm)?
  • How serious was the offending within the range of manslaughter offences?
  • What weight should be given to the offender's diagnosed mental health conditions in assessing moral culpability?
  • Whether a penalty other than full-time imprisonment was appropriate, including whether the case was comparable to the non-custodial outcome in R v White [2025] NSWCCA 111?
  • What sentence, including non-parole period, was appropriate having regard to all objective and subjective circumstances?

Decision

Factual basis for sentencing

McGuire J found that the offender did not instigate the confrontation and was genuinely surprised by the deceased's presence on the property (at [32]). The deceased was the initial aggressor, punching the offender and tearing his t-shirt when the offender tried to walk away (at [32]). However, the court found that the offender's annoyance rapidly escalated into anger and aggression, and that he stabbed the deceased three times in deliberate acts that were not a reasonable response to the circumstances as he perceived them (at [33]).

The court rejected the Crown's submission that the offender had a murderous intent, and was not satisfied beyond reasonable doubt that he intended to kill or cause grievous bodily harm (at [34]). Instead, the court sentenced him on the basis that he committed an unlawful and dangerous act by stabbing the deceased with a knife in circumstances where a reasonable person would have recognised the risk of serious injury (at [34]).

Objective seriousness

The court placed the offence towards, but not at, the lower end of the range of objective seriousness for manslaughter (at [44]). Key factors informing that assessment included the use of a large, sharpened hunting knife against an unarmed person, the infliction of three separate stab wounds, the depth of two of those wounds, and the degree of force applied (at [35]). While the use of a weapon is a statutory aggravating factor, the court declined to treat it as an additional aggravating circumstance in the sentencing calculus to avoid double counting, having already incorporated it in the objective seriousness assessment (at [47]).

The court distinguished the case from R v White [2025] NSWCCA 111, where the Court of Criminal Appeal had found the objective gravity fell at the lower end of the range and imposed a community correction order. Unlike the present case, the offender in White was a police officer required to carry a weapon in the exercise of duty, had deployed a taser once against an armed person, and acted in a genuine error of judgment rather than in anger. The court found those circumstances were materially less serious than the present facts (at [43], [99]).

Mental health and moral culpability

Two expert reports, from psychologist Ms Georges and psychiatrist Dr Pulley, diagnosed the offender with ADHD (combined presentation), social anxiety disorder, generalised anxiety disorder and trauma-related disorder (at [70]). Both experts opined that those untreated conditions likely increased his perception of threat and contributed to impulsive aggression during the confrontation (at [70], [74]). The court accepted those opinions and found the conditions contributed to the offending in a material way, reducing the offender's moral culpability and the weight of denunciation (at [76]).

However, the court emphasised that both experts gave measured opinions about the relationship between the conditions and the offending, and that the reduction in moral culpability would be minimal (at [77]). The court also noted that the offender had functioned well throughout his adult life and had no prior psychiatric treatment or diagnosis (at [75]). The court additionally disregarded assertions made by the offender to Dr Pulley that were inconsistent with his own statements to police at the time of the offending, after the offender's counsel accepted they were unsupported by the evidence (at [67]-[68]).

Sentence

The court rejected the submission that a community correction order was appropriate, and was satisfied that no penalty other than full-time imprisonment met the purposes of sentencing, particularly adequate punishment, accountability, denunciation and recognition of harm (at [100]). The court noted that an intensive correction order is not available for manslaughter as a sentencing option (at [100]).

The court found special circumstances existed under the sentencing legislation, warranting a modest adjustment to the standard ratio between non-parole period and balance of term, given the offender's first time in custody, the need to promote rehabilitation on parole, and the more onerous nature of custody because of his ADHD (at [86]). Pre-sentence custody of 151 days was taken into account, and the sentence was backdated accordingly (at [101]).

Orders Made

  • The offender is convicted of manslaughter.
  • Sentenced to imprisonment for a term of 6 years, commencing 27 April 2026 and expiring 26 April 2032.
  • Non-parole period of 3 years and 8 months, commencing 27 April 2026 and expiring 26 December 2029 (earliest eligible parole date: 26 December 2029).
  • Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and its application to the offence; his legal representatives are directed to advise him of the implications.

Key Takeaways

  • A jury verdict of manslaughter by excessive self-defence does not require the sentencing court to find an intent to kill. Here, the Supreme Court sentenced the offender on the basis of an unlawful and dangerous act, finding no proof beyond reasonable doubt of an intent to kill or cause grievous bodily harm, which materially informed both the objective seriousness assessment and moral culpability (at [34], [41]).

  • Diagnosed but untreated mental health conditions, including ADHD and anxiety disorders, can reduce an offender's moral culpability and the weight given to denunciation in manslaughter sentencing, but the court noted the reduction will be minimal where the conditions had a relatively limited impact on the offending and the offender otherwise functioned well throughout adult life (at [74]-[77]).

  • General deterrence carries lesser weight in excessive self-defence manslaughter cases involving no premeditation, consistent with observations in Patel v R [2019] NSWCCA 170 and R v White [2025] NSWCCA 111, though it remains a relevant consideration alongside retribution, denunciation and punishment (at [79]-[82]).

  • The non-custodial outcome in R v White [2025] NSWCCA 111 does not readily transfer to civilian excessive self-defence cases. The court identified material distinctions, including the absence of any duty to carry a weapon, the use of a hunting knife deployed three times against an unarmed person, and the role of anger and aggression rather than a genuine error of judgment (at [43], [99]).

  • Unsupported assertions made by an offender to a forensic expert that are inconsistent with the offender's own contemporaneous statements to police will be disregarded on sentence, particularly where defence counsel concedes they are contrary to the evidence (at [66]-[68]).

Legislation and Cases Referenced

Legislation
- Crimes (High Risk Offenders Act) 2006 (NSW), s 25C
- Crimes ( Sentencing Procedure) Act 1999 (NSW) , ss 21 A(2), 21A(3)
- Crimes Act 1900 (NSW), s 24

Cases
- Davidson v R [2022] NSWCCA 153; 300 A Crim R 214
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Goundar v R [2012] NSWCCA 87
- Newburn v R [2022] NSWCCA 139
- Patel v R [2019] NSWCCA 170
- Paterson v R [2021] NSWCCA 273
- R v Chamma; R v Hicks (No 3) [2023] NSWSC 1057
- R v Dawes [2004] NSWCCA 363
- R v Edwards (1996) 90 A Crim R 510
- R v Hoerler [2004] NSWCCA 184; (2004) 147 A Crim R 520
- R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299; (2017) 325 FLR 108
- R v Loveridge [2014] NSWCCA 120; (2014) 243 A Crim R 31
- R v McDonald (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v White [2025] NSWCCA 111
- R v White [2025] NSWSC 243
- R v Wood [2014] NSWCCA 184; (2014) 244 A Crim R 501
- R v Youseff (No 4) [2025] NSWSC 125