HEADNOTE
[This headnote is not to be read as part of the judgment.]
On 19 December 2018, at Belmont South near Newcastle, the applicant stabbed and killed the deceased while the deceased was in the driver's seat of his vehicle. The applicant pleaded not guilty before Cavanagh J and a jury to the murder of the deceased but pleaded guilty to the alternative charge of manslaughter. The applicant had previously offered a plea of guilty to manslaughter at a case conference in the Local Court. The Crown did not accept the plea in satisfaction of the indictment. The trial proceeded and the applicant raised the partial defences of extreme provocation and excessive self-defence. The jury returned verdicts of not guilty to murder but guilty to manslaughter. The applicant was sentenced to 9 years' imprisonment with a non-parole period of 6 years and 3 months, after applying a discount of 20% for the plea offer.
The applicant sought leave to appeal against sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following three grounds:
1. The learned sentencing Judge erred in finding that a discount of 20% was appropriate;
2. The learned sentencing Judge erred in finding the objective seriousness of the offending as being "well above the mid-range", and "more in the higher range"; and
3. The sentence imposed was manifestly excessive.
The Crown conceded that ground 1 was established.
Held, per N Adams J (Brereton JA and Adamson J agreeing), granting leave to appeal and allowing the appeal in part:
As to ground 1:
1. Per N Adams J (Brereton JA and Adamson J agreeing): The concession of the Crown was properly made. The applicant was entitled to a 25% discount on sentence for his offer to plead guilty at the Local Court case conference, maintained at trial. As this error was not one that affected the exercise of the sentencing discretion, and in circumstances where grounds 2 and 3 are not made out, the appropriate course is to apply a 25% discount rather than a 20% discount to the undiscounted sentence indicated by Cavanagh J: [65], [68], [72] (N Adams J); [1] (Brereton JA); [6] (Adamson J).
Crimes (Sentencing Procedure) Act 1999 (NSW), s 25E(3)(a), applied.
Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255; Black v R [2022] NSWCCA 17, applied.
As to ground 2:
1. Per N Adams J (Brereton JA, Adamson J agreeing): There was no error in the sentencing judge's finding of objective seriousness, being that the offending was "well above mid-range" and "more in the higher range": [105]-[107] (N Adams J); [4] (Brereton JA); [6] (Adamson J).
2. Per N Adams J: The facts found by the sentencing judge were consistent with both manslaughter by extreme provocation and manslaughter by excessive self-defence. In turn, the finding of objective seriousness was open on either basis: [91]-[92], [97], [100].
3. Per N Adams, Adamson JJ: A sentencing judge has a duty to find facts consistent with the jury's verdict, not to try to ascertain the thought processes of the jury and infer the basis of their verdict. This may require the sentencing judge to make a finding as to the species of manslaughter consistent with the facts found on sentence: [105]-[106] (N Adams J); [9]-[13] (Adamson J).
R v Isaacs (1997) 41 NSWLR 374, followed.
As to ground 3:
1. Per N Adams J (Brereton JA and Adamson J agreeing): Given that there was no error in the sentencing judge's assessment of the objective seriousness as being more in the higher range, and having regard to all of the other relevant factors, the sentence imposed cannot be said to be manifestly excessive: [124] (N Adams J); [1] (Brereton JA); [6] (Adamson J).