252 CLR 601
Misiepo v R [2017] NSWCCA 210
R v Anderson [2016] NSWSC 399
R v Dally [2000] NSWCCA 162
115 A Crim R 582
R v Edigarov [2001] NSWCCA 436
Source
Original judgment source is linked above.
Catchwords
252 CLR 601
Misiepo v R [2017] NSWCCA 210
R v Anderson [2016] NSWSC 399
R v Dally [2000] NSWCCA 162115 A Crim R 582
R v Edigarov [2001] NSWCCA 436
Judgment (3 paragraphs)
[1]
Solicitors:
Bryan Wrench - Applicant
Solicitor for Public Prosecutions - Respondent Crown
File Number(s): 2013/235869
Decision under appeal Court or tribunal: Supreme Court of NSW
Jurisdiction: Common Law - Criminal
Citation: R v Anderson [2016] NSWSC 399
Date of Decision: 8 April 2016
Before: Hall J
File Number(s): 2013/235869
[2]
Judgment
HOEBEN CJ at CL:
Offence and sentence
The applicant was charged that on 3 August 2013 he did murder Allira Green. The matter went to trial before a judge and jury on 18 May 2015. On 16 June 2015 the jury indicated that they were not able to reach a verdict and they were discharged.
The proceedings were set down for a retrial on 16 November 2015. On that day, the trial commenced before Hall J and a jury. On the second day of the rehearing, the Crown accepted the applicant's plea to manslaughter on the basis of excessive self-defence in full discharge of the indictment.
The maximum penalty for the offence of manslaughter is imprisonment for 25 years (s 24 Crimes Act 1900 (NSW)). There is no standard non-parole period.
On 8 April 2016 Hall J sentenced the applicant to a term of imprisonment for 12 years and 9 months commencing 3 August 2013 and expiring 2 May 2026, with a non-parole period of 9 years and 6 months expiring 2 February 2023 (R v Anderson [2016] NSWSC 399).
The sentence imposed on the applicant was wholly concurrent with earlier sentences imposed by the Local Court at Waverley on 14 April 2014 for 6 months and 12 months respectively, the latter with a non-parole period of 9 months. Each sentence was to date from 20 August 2013 and the fulltime custodial component was due to expire on 19 May 2014. These sentences were for offences that occurred on 21 December 2012 in relation to the applicant's former partner and her father. The sentences had been served in full and had expired by the time the applicant came to be sentenced by Hall J. This meant that 9 months of the applicant's sentence was concurrent with these two earlier offences.
The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him by Hall J.
The applicant relies upon the following grounds of appeal:
Ground 1 - His Honour erred in his assessment of the objective seriousness of the offence by failing to give effect to the Agreed Fact that the act of a single stab wound to the deceased was in circumstances where the offender believed his conduct "was necessary to defend himself".
Ground 2 - The sentence was manifestly excessive.
FACTUAL BACKGROUND
The evidence before Hall J was:
A signed Statement of Agreed Facts with a schedule of text messages and telephone calls.
The applicant's criminal and custodial history and a Victim Impact Statement from the mother of the deceased.
A Crown Sentence Summary.
Police facts relating to an incident said to have occurred on 31 July 2011 involving the applicant.
Police facts in relation to offences concerning the applicant committed on 31 December 2012.
A chronology and correspondence in relation to plea offers.
Justice Health documents produced under subpoena.
Psychological reports of Associate Professor Stephen Woods of 22 February 2016 and 7 March 2016.
The applicant did not give evidence before the sentencing judge. Professor Woods, the psychologist, did give evidence. The Statement of Agreed Facts relevantly described what occurred as follows:
"1. The accused, Christopher John Anderson (DOB: 6 August 1974) and the deceased, Allira Green (DOB: 26 June 1990) commenced a relationship around the beginning of 2013 and this relationship resulted in the deceased falling pregnant. The deceased was five months pregnant at the time of her death. The offender and the deceased did not live together.
2. There were periods of volatility throughout the relationship of the deceased and the offender. There is no evidence of any serious prior domestic violence incidents between them however on two occasions, 16 June and 27 June 2013, police were contacted by the deceased to report domestic disturbances concerning the offender.
3. In the days leading up to the deceased being stabbed, the offender and the deceased exchanged numerous text messages, many of which were heated. The offender and the deceased argued in text messages and on the phone through the course of 2 August 2013. A record of the call records and text messages between the deceased and accused is attached and is part of the agreed statement of facts. In the afternoon of 2 August 2013 the deceased was at [an address] Astoria Circuit, Maroubra visiting a friend, Louise Bodeker. The deceased had been dropped there by another friend, Allira Holt. Brett Drummond, the partner of Louise Bodeker, was also at the premises in the time the deceased was there. While at Louise Bodeker's unit, the deceased consumed some Ice and cannabis.
4. Following an argument between Louise Bodeker and Brett Drummond, Brett Drummond left the premises late on 2 August 2013 or in the very early hours of 3 August 2013. About 12.45am on 3 August 2013 the deceased contacted Allira Holt and asked for a lift back to Allira Holt's home. The deceased had been staying with Allira Holt for a couple of weeks at that time.
5. Allira Holt arrived at [the premises at] Astoria Circuit, Maroubra to pick-up the deceased a short time after this and when she got there she saw that Louise Bodeker and the deceased both appeared stressed. It was agreed that Louise Bodeker would go back to Allira Holt's place with the deceased and Allira Holt.
6. When Allira Holt went to the front door to leave she saw the offender standing on the landing area. There was a struggle between them as the offender tried to open the screen door. Allira Holt and the deceased told the offender to leave and told him to fxxx off. The offender came into the unit and was angry and aggressive. He said that he was there for Louise Bodeker. The offender said something along the lines of I'm going to get you. Allira Holt and the deceased tried to push the offender out of the unit. The offender grabbed Allira Holt by the neck and pushed her and the force of this caused her to fall back into the deceased and Louise Bodeker and the three of them fell to the floor at the other end of the room, a few metres away.
7. The deceased then made her way over to a kitchen drawer and took out a black handled kitchen knife. The deceased held the knife above her head and moved towards the offender. When the deceased was close to the offender with the knife a brief struggle ensued between them and in the course of this struggle the offender grabbed the knife from the deceased and stabbed her on the right side of her chest. The offender did this believing that his conduct was necessary to defend himself but accepts that it was not a reasonable response in the circumstances. The offender left the unit.
8. The offender was in the unit for no more than five minutes, between phone calls he made at 1.05am and then 1.10am. The ambulance was called at 1.11am by Allira Holt who, along with Louise Bodeker, assisted the deceased. They were given instructions and commenced CPR. When NSW Ambulance Service officers arrived it was determined that the deceased was dead. The deceased suffered one fatal stab wound to the chest. A short time later NSW Police arrived and declared the unit a Crime Scene. The blood stained knife was located under the north-east corner of the dining room table.
…
11. At about 11.55am on 3 August 2013 the offender attended Maroubra Police Station in the company of his solicitor. The offender was arrested and placed into custody and declined to be interviewed. The offender consented to a number of forensic procedures including providing a buccal swab and swabs from his hands and fingernails and having photographs taken.
12. During the forensic examination of the body of the deceased police observed small injuries to the face, right arm and stomach of the deceased. Dr Bailey conducted the post mortem examination and found that the deceased was stabbed once to the chest and determined that this was the cause of death. The stab wound was approximately 150mm deep and penetrated the chest wall, right lung, and upper portion of the heart. She also noted superficial injuries to the right forearm and abdomen of the deceased. An analysis of the deceased's blood identified high levels of methylamphetamine, and presence of amphetamine, metabolites of cannabis, alprazolam, diazepam and nordiazepam.
…
14. The height of the offender is approximately 180cm and the height of the deceased was approximately 165cm." (Emphasis added)
Proceedings on sentence
In the proceedings, Hall J identified as the central question "The degree to which his conduct in stabbing the deceased was an excessive response".
His Honour reviewed the facts which he took almost verbatim from the Agreed Statement of Facts. His Honour then set out in detail the competing submissions of the Crown and the applicant.
His Honour reviewed the calls and text messages between the deceased and the applicant. His Honour's summary of those communications were as follows:
"47 The attachment to Exhibit A consists of 20 pages of calls and text messages between the deceased and the offender commencing 21 July 2013 through to 2 August 2013. A summary document (MFI 2) contained entries commencing on 27 July 2013 to 3 August 2013.
48 In the submissions for the offender these messages, it was contended, showed the offender's concerns for the deceased's drug use and health of their unborn child. It was submitted that the messages were designed to pacify Ms Green and reassure her of his presence in her life.
49 The text messages reveal a very troublesome domestic relationship. They evidence frequent attempts by the offender to reconcile with her, unsuccessfully. The messages sent on 2 August 2013 indicate a continuing attempt by the offender to dialogue with the deceased. Many of the messages sent by both, were a mix of swearing and verbal abuse. On 2 August the deceased threatened to stab him if he came near her (at 18:11:14) following which a continuous flow of messages was sent back and forth. At 21:25:00 the deceased sent a message to the offender: "finished for good".
50 Whilst the submissions for the offender sought to rely upon that text and other messages to cast a sense of fault on the deceased as aggressor, at the end of the day the evidence emphasises that the relationship was a volatile one that had effectively come to a bitter end. It does not, in my assessment, constitute a form of provocative conduct by the deceased that mitigates the seriousness of the stabbing offence in this case. It is a case where, as in Shaw v R, supra, the tension and enmity between them constituted part of the overall circumstances in which the offending occurred, but does not evidence provocation such as to amount to mitigation."
Hall J identified two other important questions in the matter as follows (at [66]):
1. What were the circumstances as the offender perceived them to be?
2. What, precisely was the conduct that the offender believed was necessary in order to defend himself?
His Honour defined his task in the following terms:
"67 Whilst the reasonableness of the offender's conduct is to be measured against his perception of the circumstances in which he found himself, an assessment must be made as to the extent to which his conduct departed from what would have been a reasonable response had the circumstances been as he perceived them: at [56]. This involves a determination as to the extent to which the offender's response was disproportionate to the circumstances as he perceived them to be."
His Honour summarised the facts in the following way:
"71 Following a struggle between Ms Holt and the offender as he tried to open the screen door, Ms Holt and the deceased, as I earlier noted, both told him to leave. He did not. Instead he entered the unit. At that time he "… was angry and aggressive …": Agreed Facts at [6]. As I have indicated, the Agreed Facts records that after the two women had tried to push the offender out of the unit the situation escalated into violence. Firstly, the offender's assault upon Ms Holt by grabbing her by the neck. Secondly by the offender pushing her with what was evidently a considerable degree of force as it was sufficient to propel Ms Holt into both the deceased and Ms Bodeker causing or resulting in the three of them falling to the floor at the other end of the room a few metres away.
72 It is clear that it was only after these unlawful acts by the offender involving the three women in the unit, that Ms Green then made her way over to the kitchen drawer and took hold of the black-handled kitchen knife."
His Honour rejected the proposition that the culpability of the applicant was at the lower end of excessive force cases. His Honour rejected the proposition that the fatal circumstances were caused in large part by the victim introducing the knife into the situation. His Honour found that this submission failed to take into account that before the deceased obtained the knife, she had just witnessed and been involved in events involving a violent assault upon Ms Holt, including pushing her over with sufficient force to collide with and knock the three women off their feet. His Honour noted that there was no suggestion in the Agreed Facts that the applicant's attack on Ms Holt had been provoked or incited by Ms Holt or by any of the other women saying or doing some act directed towards the applicant after he entered the unit.
Following these events, his Honour inferred that by the time the deceased got to her feet she must have been in a heightened state of apprehension as to what the applicant was going to do next, either to her or one or more of the other women in the unit. His Honour found that it was in these circumstances that the deceased's actions in making her way over to the kitchen drawer and taking out the knife, should be understood. For his Honour the strong inference was that she did so, whether wisely or not, because of the events which had just occurred. She decided to arm herself and take action against the applicant. By this stage there was every reason for her to believe that the applicant's anger and aggression would continue if not escalate.
In relation to the deceased taking up a knife, his Honour said:
"76 The submission for the offender - that the fatal circumstances were caused in part by the victim introducing the knife - is a submission without due regard to the violence that the offender had by that time meted out to the three women in the unit. Plainly, on the Agreed Facts it was the offender's violent conduct that preceded, and I conclude, led the deceased to obtain the knife. In other words, her action in doing so was a response to the aggression and violence which the offender had unleashed up to that point.
77 Accordingly there is, in my opinion, no merit in an argument that sought to suggest fault in the deceased for taking hold of the knife. It is clear that she did so in her own self-defence against a violent and aggressive male (the offender). It is also evident that at the time she picked up the knife she was in a precarious position. She was a then in her fifth or sixth month of pregnancy. The offender was a man who had a very considerable physical advantage over her in terms of height and strength. Additionally, he had demonstrated that he was prepared to use it. He did use it, aggressively, from the time he forced entry into the home unit."
His Honour then interpreted that portion of the Agreed Facts which dealt with the stabbing of the deceased. What his Honour said was:
"79 On the facts set out in the Agreed Facts, the circumstances and the nature of the risk of serious injury or death which the offender is taken to have perceived and believed he faced in the period up to the time that he stabbed the deceased, were as follows:
(1) At the point when the deceased walked towards the offender with the knife held above her head, the offender's belief, on the Agreed Facts, upon seeing the deceased with the knife, was that he needed to act in his own self-defence against a perceived threat of being stabbed. That is the basis of the self-defence in this case.
(2) When, however, the offender, following a struggle with the deceased, succeeded in grabbing the knife from her, the circumstances at and from that point had radically changed. She no longer having the knife and he having control of it, the immediate threat that he believed had existed when the deceased had held the knife, had changed. She was no longer in a position to stab him, he having disarmed her.
(3) On the Agreed Facts, once the offender disarmed the deceased, he is nonetheless to be taken as still believing (whether rightly or not) that in the circumstances perceived by him he still needed to act in his own self-defence. However, by then the level of response required to defend himself had significantly altered. With the knife now in his hands, the circumstances no longer justified him responding as he did, namely using it to stab the deceased."
His Honour concluded that the applicant's act of "deliberately stabbing the deceased in the chest" represented an extreme and grossly excessive response to the situation that existed at that point in time. His Honour found that once the applicant had disarmed the deceased, his perception of the circumstances must have then included that the situation had changed. Once the applicant had control of the knife, there was no reason to use it. His Honour found that the fact that the applicant did use the knife was consistent with the continuation or escalation of the anger and aggression that he had brought to the situation. His Honour found that once the applicant had taken the knife, the alternative action available to him was to leave the premises.
In the applicant's favour, his Honour took into account that he did not come to the premises armed with a weapon and that there was only one stab wound inflicted on the deceased. Despite those considerations, his Honour concluded that the objective criminality of the offence was of a high order and that it was a most serious example of manslaughter. His Honour concluded that the intention of the applicant at the time of stabbing the deceased, was an intention to inflict grievous bodily harm rather than an intention to kill.
Because there had been negotiations between the parties concerning the applicant entering a plea of guilty to manslaughter, his Honour assessed the applicant's entitlement to a discount for his plea of guilty at 20 per cent.
His Honour had regard to the applicant's criminal record which he concluded disentitled him to any leniency. The criminal record included offences of violence, including one offence of violence towards a previous partner. This, however, was the only offence against a woman. The other offences which were primarily assaults, were directed against males. As a result of these offences, the applicant had spent periods of time in gaol. His Honour concluded that the applicant's criminal record was such as to require that a greater emphasis be given to deterrence, including personal deterrence, in the sentence to be imposed.
When assessing aggravating and mitigating circumstances within s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), his Honour took into account the following matters:
Aggravating Factors
1. That the offence was committed in the home of the victim, or any other person: (s 21A(2)(eb)). In this respect it breached, in a most serious way, the expectation associated with the safety and security of a home.
2. That the injury, emotional harm, loss or damage caused by the offence was substantial: (s 21A(2)(g)).
3. That the offender was on conditional liberty in relation to an offence or alleged offence: (s 21A(2)(j)).
4. That the victim was vulnerable: (s 21A(2)(l)).
In relation to that last aggravating factor, his Honour noted that this was part of the factual matrix of the offending and should not be taken into account twice.
Mitigating Factors
1. Apart from his periods in prison, the applicant had been in regular continuous employment.
2. The applicant had developed a grief and trauma induced major depressive disorder as a result of his brother's death from cancer.
3. The report of Professor Woods set out the remorse which the applicant felt for what he had done. His Honour accepted that on a qualified basis, given that the applicant had not given direct evidence to that effect.
4. Although Professor Woods had expressed the opinion that the applicant's risk of re-offending was "low" and that he had good prospects of rehabilitation, his Honour was not prepared to accept that expression of opinion on an unqualified basis. This was because Professor Woods did not have all of the details of the applicant's previous criminal history.
In relation to the applicant's subjective case generally, his Honour noted that he was aged 39 at the time of the offence, that his parents had separated when he was still a child and that he had lost all contact with his father. He had a close relationship with an older brother who died of cancer. His upbringing with his mother was in a household where there were stringent financial circumstances. He left school at 16 and his level of intelligence was assessed as average. Significantly, there was no history of child abuse or any other traumatic events apart from the death of the applicant's older brother.
Professor Woods reported what he had been told by the applicant as to his motivation in attending the premises on the night in question. Professor Woods was told that the deceased had ceased using illicit substances upon falling pregnant and that the applicant had become distressed and deeply concerned for her health and that of the unborn child upon learning that she had resumed using illicit substances before the incident which culminated in her death. There was no information as to precisely when she had resumed using those substances. In relation to his psychological state at the time of the offence, the applicant conveyed to Professor Woods that he had a concern for the deceased and her unborn child. He told Professor Woods that he had attended upon the deceased on that night because he did not know what to do and could not make sense out of what were, in essence, conflicting messages from the deceased. The applicant told Professor Woods that he himself had taken illicit substances before he stabbed the deceased. On that latter issue, his Honour did not take that into account as a matter of mitigation or as an excuse for the offending.
His Honour considered that because this was a domestic violence offence, specific and general deterrence were important factors together with the requirement for powerful denunciation by the community of such conduct to be made clear in the judgment. His Honour also had regard to protection of the public as a matter of importance. His Honour had particular regard to the importance of the principle of general deterrence in domestic violence cases where at the present time there was a prevalence of violent actions by men against women. On that issue, his Honour had regard to what was said by Wood CJ at CL in R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551:
"41 … violent attacks in domestic settings must be treated with real seriousness. Regrettably, that form of conduct involves aggression by men who are physically stronger than their victims and who are often in a position economically, or otherwise, to enforce their silence and their acceptance of such conduct. In truth such conduct is brutal, cowardly and inexcusable, and the Courts have a duty to ensure that it is adequately punished, and that sentences are handed out which have a strong element of personal and general deterrence."
His Honour saw no basis for a finding of special circumstances and accordingly was not disposed to alter the statutory ratio between the head sentence and non-parole period. Accordingly, his Honour took as his starting point a sentence of 16 years, which after the application of the 20 per cent discount produced the sentence previously referred to.
THE APPEAL
Ground 1 - His Honour erred in his assessment of the objective seriousness of the offence by failing to give effect to the Agreed Fact that the act of a single stab wound to the deceased was in circumstances where the offender believed his conduct "was necessary to defend himself".
In order to better understand the submissions of the applicant, it is useful to set out the relevant sections of the Crimes Act 1900:
"418 Self-defence - when available
(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them."
"421 Self-defence - excessive force that inflicts death
(1) This section applies if:
(a) the person uses force that involves the infliction of death, and
(b) the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary:
(c) to defend himself or herself or another person, or
(d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."
The applicant submitted that the guilty plea on the basis of excessive self-defence manslaughter meant that the sentencing judge was bound to accept that the applicant believed that his conduct in stabbing the deceased was necessary in order to defend himself (s 421(1)(c)). The conduct was not, however, a reasonable response "in the circumstances as he or she perceives them": s 421(1)(b). As this Court (Simpson JA, with Leeming JA and Hamill J agreeing) held in Smith v R [2015] NSWCCA 193 at [22]:
"22 … the words "the circumstances as he perceived them" are critical."
The two questions noted by the sentencing judge as needing to be addressed by his Honour ([66] of his sentencing judgment) were: "What were the circumstances as the applicant perceived them to be" and "What precisely was the conduct that the applicant believed was necessary in order to defend himself" had to be assessed "by reference to the applicant's subjective perception …" (Smith v R at [44]-[45]).
The applicant submitted that the sentencing judge found that at the point when the deceased walked towards him with the knife above her head, his belief was that "he needed to act in his own self-defence against a perceived threat of being stabbed" (Sentence judgment [79]). The applicant submitted that thereafter the sentencing judge departed from the Agreed Facts, which referred to the disarming and stabbing occurring "in the course of a brief struggle" his Honour instead sentenced on the basis that "following" a struggle the deceased "no longer had the knife and he having control of it" (Sentence judgment [79(ii)]) as though this were separate in time rather than in quick succession "in the course of" the struggle. The applicant submitted that the sentencing judge went on to hold that "the immediate threat that he believed that existed when the deceased held the knife had changed" and went on to add that "he is nevertheless to be taken as still believing (whether rightly or not) that in the circumstances as perceived by him he still needed to act in his own self-defence" (Sentence judgment [79(iii)]).
The applicant submitted that thereafter his conduct was measured by the sentencing judge, not by reference to the circumstances as he perceived them to be, but as a "response to the situation that existed at that point in time" (Sentence judgment [80]). In other words, his Honour's description of the applicant's act as "an extreme and grossly excessive response" was given on the basis that the "circumstances" were as outlined in the Sentence judgment [79(ii)] namely that "she no longer had the knife and he having control of it" and that "she was no longer in a position to stab him, he having disarmed her". The sentencing judge held that "Once he had disarmed the deceased, his perception of the circumstances must then have included the reality that events had changed in that respect" (Sentence judgment [81]). The sentencing judge also held "Once he had control of the knife the tragic fact is that there was no reason at all to use it" (Sentence judgment [81]). The applicant submitted that these findings failed to reflect the guilty plea, namely, the applicant's belief that the act was necessary in self-defence but was an unreasonable response in the circumstances as he perceived them.
The applicant submitted that on the sentencing judge's findings, he must have subjectively perceived that the deceased was now an unarmed, small and pregnant woman at the time that he stabbed her with his perception including the reality that there was "no reason at all" to "use it" (the knife). This is inconsistent with both the acceptance of the plea of guilty to manslaughter, the provisions contained in s 421 and the Agreed Fact that the act was carried out in self-defence, albeit disproportionate to the circumstances as perceived by the applicant.
The applicant submitted that the finding by the sentencing judge that his act of inflicting the stabbing wound was an escalation of the anger and aggression "operating in addition to a belief that he was required to defend himself" was inconsistent with the belief that the act was necessary to defend himself, as required under s 418(2)(a) and s 421(1)(b) and (c). That finding cast the applicant as an intentional aggressor at the point in time of the stabbing, rather than acting in the belief that he needed to act in the manner he did in order to defend himself from the deceased. The applicant submitted that the sentencing judge's finding as to the "alternative action available to him" was also inconsistent with an acceptance of the applicant's subjective belief that the act was necessary to defend himself (Sentence judgment [82]). The applicant submitted that the findings of the sentencing judge suggest that the applicant knew or believed that he was not in danger from the deceased at that time.
The applicant submitted that the sentencing judge was required to find that he believed that it was necessary to act by stabbing the deceased in self-defence, rather than simply that it was necessary to act (in some other way).
The applicant submitted that the inconsistencies in the sentencing judge's findings, taken with the Agreed Facts and necessary findings for the verdict that the applicant believed it was necessary to stab the deceased, are similar in kind to the "inconsistent" findings in Smith v R set out at [63] (specific to the facts of that case).
The applicant submitted that it was implicit in his plea and explicit in the Agreed Facts that his conduct in stabbing the deceased was not a reasonable response in the circumstances that he perceived them to be when the reasonableness of the conduct (the stabbing) was "to be measured against the applicant's perception of the circumstances which he found himself in" (Smith v R at [56]). Instead, the applicant's response was measured against the "reality" found by the sentencing judge on the basis of objective circumstances inconsistent with self-defence. This in turn had repercussions in the sentencing judge's evaluation of the applicant's response which his Honour characterised as "an extremely and grossly excessive response".
Consideration
The criticism by the applicant of the approach taken by the sentencing judge is well made. The description of what occurred in the Agreed Facts is set out at [9] hereof. Importantly, that description states:
"When the deceased was close to the offender with the knife, a brief struggle ensued between them and in the course of this struggle the offender grabbed the knife from the deceased and stabbed her on the right side of her chest."
On the basis of that short and relatively uninformative description his Honour set out a different narrative as can be seen at [19] hereof and one which, with due respect to his Honour, was inconsistent with the Agreed Facts and inconsistent with the plea of guilty to manslaughter by way of excessive self-defence.
By reference to the Agreed Facts and other material, such as the autopsy findings and the applicant's admission that he had consumed Ice on the night of the incident, what can be inferred from the Agreed Facts is that the stabbing occurred as part of a dynamic and fluid incident in which there was a struggle for possession of the knife. In the course of that struggle, the applicant gained possession of the knife and as the struggle continued, caused it to stab the deceased once in the chest. There is no suggestion in the Agreed Facts that the struggle ceased once he had gained possession of the knife and such a suggestion would not only be inconsistent with the Agreed Facts, but with the fact that both participants, in particular the deceased, had consumed a large quantity of Ice.
The recitation of facts by his Honour at [79]-[82] suggests that the actions of the applicant could be divided up into phases. There was phase 1 when he struggled with the deceased and disarmed her and phase 2 when, having disarmed her, he stabbed her. Looked at in that way, it is quite understandable why his Honour would have characterised the seriousness of the offending in the way in which he did. If the stabbing occurred as described by his Honour, not only would the actions of the applicant have been inconsistent with the plea of guilty to manslaughter by excessive force, it would have been more akin to murder.
Such a description fails to have proper regard to the dynamic nature of the struggle and suggests a narrative where the applicant having disarmed the deceased proceeded to deliberately stab her in the chest. That is contrary to the Agreed Facts.
For the above reasons, this ground of appeal has been made out.
That being so, it is not necessary to consider whether the sentence imposed is manifestly excessive. What now has to be done is that which is mandated by Kentwell v The Queen [2014] HCA 37; 252 CLR 601 where the plurality (French CJ, Hayne, Bell and Keane JJ) said:
"42 … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. …"
Re-sentence
The offence of manslaughter is almost unique in its protean character: R v Forbes [2005] NSWCCA 377 at [133]. It covers a wide variety of conduct, rendering sentences imposed in other cases of limited assistance: Goundar v R [2012] NSWCCA 87 at [44]; Misiepo v R [2017] NSWCCA 210 at [58] per Macfarlan JA (Johnson and Harrison JJ agreeing). There is no hierarchy of seriousness between voluntary and involuntary manslaughter. As Smart AJ said (Sully J and Carruthers AJ agreeing) in R v Dally [2000] NSWCCA 162; 115 A Crim R 582:
"It is not the variety of manslaughter but the facts which determine the objective gravity of the offence. Neither variety is inherently more serious than the other."
On the basis of that guidance, in the re-exercise of the sentencing discretion it is necessary to consider closely the facts of this matter, so far as they are known, both relating to the objective seriousness of the offending itself and subjective considerations as they affect the applicant.
Having considered the exchange of texts between the deceased and the applicant leading up to the incident, the relationship between the applicant and the deceased can be characterised as volatile and involving what appears to be a genuine affection between them. Equally, however, there were references by both of them to recent drug use (which we now know to be Ice). This probably explains the volatility of the exchanges which vary between terms of affection and insult. What is also clear is that at no point did the deceased invite or suggest to the applicant that he physically approach her or the place where she was staying.
An important consideration which impacts on the objective seriousness of the offending is that it was the applicant's conduct which brought about the circumstances which led to the deceased's death. It was his decision to arrive uninvited at Ms Bodeker's unit. When he was told in no uncertain terms to leave, he forced his way through the screen door into the unit and threatened Ms Bodeker. When the deceased and Ms Holt tried to push him out of the unit, he used his strength to throw Ms Holt out of his way with such force that when she fell she also knocked the deceased and Ms Bodeker to the ground. This demonstration of violence and strength by the applicant would have made it clear to all three women that on their own, there was little they could do against the applicant's aggression.
It was in this context that the deceased armed herself with a knife and moved towards the applicant with the knife held above her head. In the circumstances just described, for which the applicant was solely responsible, one can see why the deceased would have thought the only way to both protect herself and her friends and to force the applicant to leave would be if she armed herself. I do not accept the submission that the situation was made significantly worse by the deceased arming herself. Even on the bare Agreed Facts the three women were clearly outmatched in strength and aggression by the applicant.
Where it can be said that the deceased made things worse was by approaching the applicant with the knife raised above her head. Even allowing for that consideration, it was still the applicant who had control of the situation and could and should have left the premises. There is no suggestion that the deceased would have followed him or have taken any hostile action against him, had he done so. It was the applicant's decision to remain in the unit and grapple with the deceased. In such a highly charged situation there was always a risk of serious injury being caused to the deceased in such a struggle.
In that scenario, which is consistent with the applicant's plea of guilty and with the Agreed Facts, it is appropriate to characterise the objective seriousness of the offending as a serious example of manslaughter. Although the deceased had not been directly threatened by the applicant until they began struggling, her actions in arming herself were clearly intended to not only defend herself but also the other two women, one of whom had been threatened and the other who had been violently knocked to the ground.
Although the texts passing between the deceased and the applicant can be read as revealing some concern on his part for the baby as a result of the deceased's drug taking, that consideration was certainly not at the forefront of his mind when he forced entry into the unit and attacked Ms Holt. While that factor cannot be ignored, I do not assess it as significantly mitigating the applicant's offending.
Apart from his concern for the baby, there is little that is favourable in the applicant's subjective case. There were a number of offences of violence resulting in gaol sentences. The most recent offences involved his previous partner, who suffered an injury to her left eye, and her father whom the applicant had injured including breaking his arm. The applicant's criminal history and subjective case generally do not entitle him to any leniency. I accept the reasoning of the sentencing judge in relation to the bare statement by Professor Woods as to the applicant's depressive and "trauma symptoms". Without some analysis to support that conclusion, it carries little weight. Similarly, there was little persuasive evidence as to the applicant's prospects of rehabilitation or to enable a finding to be made that it was unlikely that he would re-offend in the future.
There was no issue that there were matters of aggravation to be taken into account. These were that the offence was committed in a unit where the deceased was then residing, that the injury had brought about emotional harm, loss and damage to the deceased's family and that the applicant was on conditional liberty at the time he committed the offence.
Taking those matters into account, in the re-exercise of the sentencing discretion I would impose a sentence of imprisonment for 12 years with a non-parole period of 9 years.
Accordingly, the orders which I propose are as follows:
1. Quash the sentence imposed by Hall J on 8 April 2016.
2. In lieu thereof, impose a sentence of imprisonment with a non-parole period of 9 years commencing 3 August 2013 and concluding 2 August 2022 with a balance of term of 3 years concluding on 2 August 2025.
3. The applicant will become eligible for release on parole when the non-parole period expires on 2 August 2022.
JOHNSON J: I agree with the reasons and proposed orders of Hoeben CJ at CL.
N ADAMS J: I agree with the orders proposed by Hoeben CJ at CL for the reasons given by his Honour.
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Decision last updated: 23 March 2018