Misiepo v R

Overview of factual circumstances

1. The following overview of the facts found by the sentencing judge is taken from his Honour's judgment (at [8]-[21]).
2. On 31 December 2013 the applicant was in Port Macquarie with his girlfriend, Rebecca Park. The unit in which they were staying was occupied by Rebecca Park's sister, Pania Park.
3. Reece Barnes, who was Pania Park's boyfriend, was also present at the unit on the evening of 31 December 2013.
4. In the early hours of 1 January 2014, the applicant and Rebecca Park were walking in Norfolk Avenue when they were approached by Megan Hill, Mr Martyn's partner. Ms Hill sought assistance from them to obtain a taxi to get home. She was significantly affected by alcohol.
5. On Ms Hill's account, the applicant and Rebecca Park made it clear that they would not assist her or ring for a taxi to take her home. Ms Hill claimed in evidence that she was abused and physically assaulted when the applicant pushed her to the ground.
6. In due course Ms Hill managed to obtain a taxi and left the area. When leaving, she made comments which it may be assumed were audible to the applicant indicating that she had some form of association with the outlaw motorcycle group known as the Bandidos Motorcycle Club, and that she would return with the assistance of the Bandidos. The implication was that she would seek some form of redress or retribution.
7. Ms Hill returned to her residence and told Mr Martyn what had happened. Mr Martyn then drove her back to the street where the incident had occurred. They arrived there at approximately 6:07am.
8. At the time of the offence Mr Martyn was 44 years of age, 184 centimetres tall and approximately 95 kilograms in weight. He had a solid build. He was not armed when he arrived with Ms Hill. At the time of the offence, the applicant was 33 years of age and was said to be fit and heavily muscled.
9. The evidence at trial was that when Mr Martyn and Ms Hill arrived at the street the applicant was on the footpath outside the unit block in which Ms Park's unit was situated. On the evidence, the applicant was armed with a replica hand gun and a knife.
10. There was evidence at trial that both Mr Martyn and Ms Hill saw the applicant holding what appeared to them to be a handgun. At about that time, Rebecca and Pania Park emerged onto the footpath and, on Ms Hill's account, they commenced to assault her on the lawn in front of the unit block. At some point in the course of this altercation, Ms Hill fell to the ground in front of the unit block. There was evidence that the Park sisters were standing over her and assaulting her.
11. Whilst the fight between the women was occurring, the applicant and Mr Martyn were on the street or footpath area. Initially the three men (Mr Martyn, Reece Barnes and the applicant) engaged in some form of altercation in which it appears that one or more punches were thrown by Mr Martyn and Mr Barnes, although the evidence failed to establish precisely what occurred at this point. Shortly thereafter, the applicant commenced to move towards Mr Martyn in a threatening manner, with Mr Martyn walking backwards. The applicant produced a knife and ultimately stabbed Mr Martyn three times. The evidence indicated that as Mr Martyn was walking backwards, he was retreating from the applicant's advance, with his hands down (or perhaps they were up - see Judgment at [77]) and he was not then being aggressive.
12. Three stab wounds were inflicted to Mr Martyn's chest. The fatal wound was approximately 55 millimetres deep. It involved penetration of the aorta through the rib cage. A moderate amount of force would have been required to achieve that injury.
13. A further wound was inflicted on the left lateral chest wall. This wound penetrated 20 millimetres and involved the spleen. The third stab wound was to the right anterior chest and involved the liver. The evidence was that there were most likely also two glancing blows with the knife. A post-mortem examination revealed that Mr Martyn had also suffered laceration injuries to his face, most likely caused when the applicant hit him with the replica handgun.

The evidence relevant to the issues on appeal

1. The offence occurred shortly after 6.00am on 1 January 2014. The unit building outside which the offence took place comprised 4 units: units 1 and 2 being downstairs and units 3 and 4 being above them. The principal lay witnesses at the hearing comprised Ms Hill, and various persons present at the building at the relevant time. The evidence of present importance was given by Mr Adam Paine (unit 1) and Ms Felicity McKenzie (unit 2). Mr Jason Jones (unit 2), Ms Rebecca Park (unit 3), Ms Pania Park (unit 3) and Mr Reece Barnes (unit 3) did not make any presently relevant observations. Ms Hill did not see the end stage of the altercation that led to Mr Martyn's death, she being involved at that time in her struggle with the Park sisters. The applicant did not give evidence.

Mr Paine's evidence

1. Mr Paine's evidence was adequately summarised in the applicant's written submissions, the relevant sections of which are largely reproduced in the following paragraphs.
2. Mr Paine gave evidence that he saw two men in front of the unit block. One of the men had a tattoo on his right arm similar to a Celtic Trinity and was shirtless. Mr Paine later identified this tattoo from an array of photographs. It was the tattoo on the applicant's right shoulder. The other man had a goatee beard and was wearing a singlet. Mr Paine recalled that the shirtless man was attacking the man wearing a singlet. He perceived the attacker as being "very tall … close to six foot tall [with] a solid build". In fact, Mr Martyn was taller than the applicant and had a more solid build than him.
3. Mr Paine witnessed the man being attacked "kind of backing away while being pushed, kind of had his arms up, was trying to disengage" while walking backwards. As this occurred, the other man continued "going after him and kept pushing him and hitting him" a few times. This man was "swinging in a punching motion, like someone who was punching someone in the chest" in "a real aggressive kind of nature and kind of demeanour". Mr Paine could not recall exactly how many times the man being attacked was punched. In his walk through with police, Mr Paine described Mr Martyn "holding his chest with his left arm … trying to obviously disengage and then that's when the woman who was laying on the ground being assaulted told me someone had been stabbed …''. He saw the applicant "walking down cause he, he swung at him [Mr Martyn], hit him and pushed him away and that's when he [Mr Martyn] was holding his chest and saying like back sort of thing" (sic).
4. Mr Paine then left the window to retrieve his phone to call triple-0. Upon returning to the window, he heard Ms Hill yelling for help because someone had been stabbed. He did not see the applicant holding any weapon. He did not see the stabbing. He "only saw him [the applicant] swing once" and "by the time it had hit him [Mr Martyn] … the woman said that he'd been stabbed, I ran out, I didn't see it actually connect". Mr Paine said that he "didn't know if he'd [Mr Martyn] been stabbed or not … "cause she was obviously delirious and they'd been drinking and stuff all night".
5. The two women who were attacking Ms Hill started to leave. Mr Paine also saw a third male of lighter complexion than the applicant further up the road. This male was not engaged in the physical altercation. Mr Paine gave evidence that he then went outside, where Ms Hill was on the grass next to Mr Martyn who was covered in blood. Mr Paine sat with Ms Hill and tried to calm her down. He recalled her to have been "quite intoxicated" at the time she was telling him about what had happened.

Ms McKenzie's evidence

1. Ms McKenzie's evidence was adequately summarised in the applicant's written submissions, the relevant sections of which are largely reproduced in the following paragraphs.
2. Ms Felicity McKenzie was at her apartment window and described seeing two women fighting near the garden bed and a third woman (Pania Park) "sort of half trying to pull Becca [Rebecca Park] off but sort of just standing there". She saw a man [Mr Martyn] walk up the street, yelling at the two women to get off Ms Hill and saw two men [the applicant and Mr Barnes] run down from upstairs. She then saw two men have an argument. The applicant had his back to Ms McKenzie and Mr Martyn was facing her. She said that the "boys" were having some sort of words together. They were near the back of the Toyota Corolla, just on the gutter of the kerb. Ms McKenzie then moved to the right side of her window and then saw "what looked to be person 1 [the applicant on the Crown case] pushing Mr Martyn and then he [the applicant] sort of backed away really quickly and sort of retreated up the stairs". She described the push as being with two open hands on the chest outwards. Mr Martyn touched his heart and said "I've been stabbed, I've been stabbed in the heart". Mr Martyn then made his way back into the middle of the street.
3. Ms McKenzie described the applicant as being shirtless. She did not notice any tattoos on him at the time but recalled Mr Martyn having tattoos "maybe some on the arms and maybe some on the torso area or the chest". During this altercation, Ms McKenzie recalled seeing Mr Barnes further away, and did not recall any physical contact between Mr Barnes and Mr Martyn.
4. In her walk through with police on 22 January 2014, Ms McKenzie stated that although she wasn't really paying attention to the boys, she saw them "sort of just in each other's faces" and "sort of scuffling back and forth … in front of the driveway and back down towards the detective's car". She saw the males "push down a little bit" up the road to a point in between the white Corolla and the blue car. Watching through the gap in her blinds, she saw the applicant from the back "arkin' up to" Mr Martyn in a "come on, kind of thing" and then a few seconds later Mr Martyn touched his chest and screamed. She did not see the applicant holding any weapon, nor could she see if he had anything in his hand. She recalled Mr Martyn yelling that he had been stabbed in the heart before staggering to the other side of the road and laying down while the applicant and the Park sisters ran upstairs along with, she assumed, Mr Barnes, who had also disappeared from sight.

The sentencing judgment

1. The sentencing judge made findings as follows: "54 The action of the offender in arming himself with a knife was a deliberate and considered one. He anticipated the possibility that Ms Hill would return …, with assistance of someone possibly associated with the motorcycle gang known as the Bandidos. 55 When Ms Hill and her partner arrived … and Mr Martyn walked towards the offender I accept that he believed that Mr Martyn was intent on engaging in some form of physical altercation with him. That finding is consistent with the jury's verdict in respect of self-defence. 56 Whilst the jury's verdict implicitly involves a finding that the offender was acting in self-defence, his acts of stabbing Mr Martyn, for reasons I will proceed to give, were not a reasonable response to the circumstances as he perceived them to be. That, of course, is implicit in the jury's verdict. 57 I consider that the offender's actions in stabbing the deceased were grossly excessive."
2. Having emphasised that the reasonableness of the applicant's conduct was to be judged by reference to the "circumstances as he perceived them", (see s 421 of the Crimes Act), the judge found that those circumstances were as follows (at [71]): "(1) That Ms Hill, following the earlier incident, may well make good her threat to him to return with a person or persons associated with the Bandidos Motorcycle Club for the purpose of engaging him in a physical or violent altercation as a form of reprisal for the offender having, on her account, assaulted her. (2) That in that respect the offender decided, whilst having armed himself with a knife and a replica gun, to wait and be prepared if such an event should occur. (3) Ms Hill's statement which indicated that she was allegedly in a position to call on Bandidos members, raised a real possibility that Ms Hill was in fact in some way associated with that group, being one with a well‑known reputation for lawlessness and violence. (4) That upon Ms Hill's return …, the offender saw that she was accompanied by a male, Mr Martyn, a person of considerable height and physique. (5) That Mr Martyn, in walking towards the offender, was perceived by the offender as possibly being a Bandidos member who was intent on inflicting physical harm upon him. (6) The deceased continued to walk in the offender's direction notwithstanding that the offender was holding what in reality was a replica gun which the deceased detected, as indicated by his warning to Ms Hill, that is, that the offender had a gun. (7) That a physical altercation commenced with punches being thrown at some point by Mr Martyn and Reece Barnes. (8) That once that altercation commenced it was likely to lead to an escalating situation in which there was a heightened risk of serious violence erupting between the deceased and the offender. The offender's torn blue shirt was relied upon as some evidence of the fact that there had been a physical confrontation between the offender and Mr Martyn. (9) That these events gave rise to an emotionally charged situation, with the offender determined to get the better of the situation by aggressively going on the offensive, pushing Mr Martyn and thrusting his knife at Mr Martyn and eventually stabbing him."
3. On appeal, the applicant accepted these findings other than that reflected in subparagraph (9). This was challenged in his Ground 2.
4. The judge continued: "72 The fact that the offender stabbed the deceased three times is, of course, consistent with an extremely high level of aggression by the offender in circumstances in which the deceased was not apparently or actually armed with a weapon. There was no evidence that Mr Martyn was at any stage carrying a weapon that was concealed from view. No weapon was seen in Mr Martyn's possession and none found on him or near him after the stabbing. There was no evidence from which the offender could have believed, mistakenly or otherwise, that Mr Martyn was armed. 73 In summary, there was evidence to support the jury's verdict which implicitly indicated that it accepted that the offender believed it was necessary to defend himself. There was also evidence which well-supported the jury's implicit finding that his response in stabbing Mr Martyn was not a reasonable response in the circumstances as he perceived them. The fact that Mr Martyn was not armed was plainly an important fact in the jury making the latter finding particularly in circumstances in which the offender aggressively confronted Mr Martyn, forcing him backwards, at knifepoint. That fact is also significant as a further matter relevant to sentencing, namely, the extent to which the offender's conduct departed from what would have been a reasonable response had the circumstances been as he perceived them. If the offender perceived, as was the fact, that Mr Martyn was unarmed then his conduct was quite extreme, indeed heinous. The fact that he stabbed him three times in the chest reinforces that assessment."
5. In assessing the objective seriousness of the applicant's offence, the judge stated: "77 Whilst I accept that the offender armed himself with a knife by reason of an apprehension that there could be a violent confrontation should Ms Hill return with the assistance of a Bandidos member, as events developed, and as I have discussed, it became apparent to the offender that Mr Martyn, whatever his capacity to fight, was not armed. Moreover in the immediate prelude to the stabbing, Mr Martyn was not walking towards the offender but was backing away with his hands either in the down or the up position as the offender approached him with the knife. These facts reinforce the conclusion that the offender's acts well exceeded what was required in acting in self-defence. The objective gravity of the offence was of a high order. By resorting to a high level of violence, and using the knife as a dangerous weapon, the offender significantly overreacted with the disastrous and fatal consequences that unfolded. … 84 I do not consider that the evidence permits a finding to be made to the requisite standard that the offender's state of mind was an intention to kill, but rather it points, in the particular circumstances of the present case, to the fact that he stabbed Mr Martyn with an intention to inflict grievous bodily harm in the course of him impulsively and severely overreacting to the danger he perceived. The intention to inflict grievous bodily harm in the circumstances of this case indicated a high level of moral culpability. This is a case with some similarity to others in which the weight to be given to the particular mitigating circumstances of the case, acting in self-defence, is not of particularly high order. I refer to the observations of Spigelman CJ in R v Forbes [2005] NSWCCA 377 at [137]."
6. His Honour then made the following further findings, which are not challenged on appeal: 1. The applicant's offence was aggravated by his use of a weapon against an unarmed man, by his record of previous convictions for offences involving serious personal violence and by his having committed the offence whilst on conditional liberty in relation to an offence of wounding. 2. The applicant's offence was mitigated by the fact that it was not part of a planned or organised criminal activity. 3. The applicant was entitled to a 20% discount on his sentence for his early offer to plead guilty to manslaughter. 4. The applicant's criminal history was extensive and included convictions of offences involving personal violence. 5. The applicant's background of emotional and physical deprivation and trauma was a material mitigating factor in respect of his offence, in accordance with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. 6. The evidence did not indicate or establish that the applicant has good prospects of rehabilitation.

Ground 2: whether it was open to his Honour to make the "critical finding" (see [4] above) beyond reasonable doubt

1. The applicant's written submissions in relation to this ground commenced by asserting the following: " … First, no witness saw the applicant holding the knife at any stage. Secondly, no witness was able to provide a complete account of the events leading up to the stabbing. Thirdly, the violence that erupted between the applicant and the deceased occurred very quickly. Fourthly, there was clearly a physical fight involving the applicant and the deceased prior to the stabbing".
2. The first proposition is correct but is of no present significance, primarily because it was necessarily implicit in the jury's guilty verdict that the applicant held the knife and used it to stab Mr Martyn. In any event, the evidence pointed overwhelmingly to that having occurred.
3. The second proposition is also correct, but again is not of assistance to the applicant. The combined evidence of Mr Paine and Ms McKenzie was sufficient to enable appropriate findings to be made.
4. The third and fourth propositions are also correct, but are consistent with the sentencing judge's findings.
5. To advance Ground 2, the applicant then submitted that the sentencing judge failed to take into account "the significant problems with Paine's evidence" and "the inconsistencies between Paine's and McKenzie's evidence".
6. As to Mr Paine's evidence, the applicant first pointed out that Mr Paine said that the victim was wearing a singlet, whereas two bystanders who gave evidence said that he was shirtless. The discrepancy may be explained by Ms Hill's evidence that, after Mr Martyn fell to the ground, she pulled up his singlet to try and assist him. The bystanders, who no doubt were standing at a considerably greater distance from Mr Martyn than Ms Hill, may well have observed Mr Martyn's bare chest. In any event, it was clearly open to the sentencing judge to treat Ms Hill's evidence as corroborative of this aspect of Mr Paine's evidence, and not to treat any possible discrepancy between Mr Paine's evidence and that of the bystanders as affecting the reliability of his evidence on critical issues. Particularly was this so when Mr Paine described the aggressor as having a tattoo that matched that of the applicant and the victim (Mr Martyn) was proved to have had a goatee beard in accordance with Mr Paine's description of him.
7. Likewise, the sentencing judge was not bound to treat Mr Paine's evidence as unreliable because he described the victim (Mr Martyn) as shorter than the aggressor (the applicant), when the reverse was the case. Mistakes as to matters such as height are easily made when, as here, the observer is not on the same level as those observed (Mr Paine was at the window of his unit) and the observation is made at a distance. Taking Mr Paine's evidence as a whole, his error as to the relative heights of the applicant and Mr Martyn was of no consequence.
8. Next, the applicant submitted that Mr Paine "missed a crucial part of the incident between the applicant and the deceased" when he left the window of his unit to call triple-0.
9. The bedside table upon which Mr Paine's mobile phone lay was only a short distance from the window. His evidence was that "I had to leave my window to be able to get it. I rang triple-0 and they asked 'what was going on?'" (T150). Mr Paine gave evidence that at this point he went "straight back" to the window (T150). He did not suggest that his call was not answered immediately, and the recording and transcript of the call in evidence indicate that the operator had asked "is it still going" after very few words had been spoken. Mr Paine therefore missed seeing only a few moments of what was occurring outside. In these circumstances, his description of what he did observe before the stabbing, namely the applicant "aggressively going on the offensive" as the judge put it, was able to be treated as a reliable indication of the applicant's conduct immediately before the stabbing. The finding to that effect was reinforced by Ms McKenzie's evidence that the applicant was acting aggressively immediately before the stabbing occurred.
10. Finally, the applicant submitted that Mr Paine's evidence was inconsistent with Ms McKenzie's evidence "about where the stabbing took place". However the precise location of the stabbing was a detail of no particular significance. As the witnesses were observing dramatic events from a distance and at a somewhat higher level than the participants, it is hardly surprising that there might be discrepancies between their recollections of where precisely on the footpath or road the events occurred. In these circumstances, it would be more likely that a witness's attention would be directed to who was doing what to whom rather than the detail of positions. The sentencing judge was well-entitled to treat any such discrepancy as not affecting the reliability of Mr Paine's or Ms McKenzie's evidence. As I did in Field v R [2015] NSWCCA 332 at [73], I refer to the observations of McHugh J in M v The Queen (1994) 181 CLR 487 at 534; [1994] HCA 63 in relation to inconsistencies in and between witnesses' evidence. "It is the everyday experience of the courts that honest witnesses are frequently in error about the details of events. The more accounts that they are asked to give the greater is the chance that there will be discrepancies about details and even inconsistencies in the various accounts. Of course, it is legitimate to test the honesty or accuracy of a witness's evidence by analysing the discrepancies and inconsistencies in his or her accounts of an incident. In a case where accuracy of recollection is vital - such as the account of a conversation in a fraud case or the description of a person where identity is the issue - discrepancies and inconsistencies in the witness's account may make it impossible to accept that person's evidence, no matter how honest he or she appears to be. But in other cases, discrepancies and inconsistencies may be of far less importance if the honesty of the witness, as opposed to the accuracy of the detail, is the crucial issue. If a jury thinks that the demeanour of the witness or the probability of occurrence of the witness's general account is persuasive, they may reasonably think that discrepancies or even inconsistencies concerning details are of little moment."
11. In light of these various matters I conclude that, when taken in the context of the other evidence at the trial, the evidence of Mr Paine and Ms McKenize provided a firm and adequate foundation for what the applicant described as the "critical finding".

Ground 4: whether his Honour erred in his findings about the degree to which the applicant's conduct exceeded that which would be a reasonable response to the circumstances as he perceived them

1. In support of this ground the applicant made three submissions. First, the applicant complained that the judge made no reference to an altercation that occurred prior to the stabbing (in which punches were thrown) in his Honour's findings on "Self-Defence". However his Honour did refer to this altercation in the part of his judgment that considered self-defence. At [71(7)] his Honour acknowledged that it was relevant to the applicant's perception of the circumstances "[t]hat a physical altercation commenced with punches being thrown at some point by Mr Martyn and Reece Barnes" (see [29] above). Further, at [71(8)] his Honour observed that "the [applicant's] torn blue shirt was relied upon as some evidence of the fact that there had been a physical confrontation between the offender and [Mr Martyn]".
2. Secondly, after the stabbing, the applicant was observed to have various abrasions and the like on his body. The applicant complained that the judge failed to consider these injuries. However, his Honour turned his mind to that matter when he stated at [22]: "The offender was not injured except for a laceration to his hand which the evidence indicated was most likely caused by the use of the knife in stabbing Mr Martyn."
3. Although his Honour did not mention any other injuries, this was appropriate. Apart from the injuries to the applicant's hand, the applicant did not point to any evidence to indicate that any of his other injuries were incurred in the course of his altercation with Mr Martyn.
4. Thirdly, the applicant submitted that the judge gave insufficient weight to the issue of self-defence. On its face, this is a submission that must fail because matters of weight, particularly those relevant to a finding as to objective seriousness, are matters for the sentencing judge and will not, without more, be reversed on appeal (Bugmy v The Queen at [24]).
5. The applicant sought to support this submission by contending that it was reasonable in the circumstances for the applicant to have believed the following matters: "(a) The deceased had returned to the … apartment after the earlier altercation with Ms Hill in the early hours of 1 January 2014 to inflict physical harm on the applicant. It was reasonable for the applicant to believe that Ms Hill's earlier threat to him and his girlfriend relating to the Bandidos was about to be realised; (b) The deceased was associated with the Bandidos motor cycle club. The physical appearance of the deceased would not have disabused the applicant of that belief; (c) The deceased was a significantly taller and heavier man. He was fit and heavily muscled; (d) The deceased walked towards the applicant even after Ms Hill's warning that the applicant was carrying a gun. His Honour found that the applicant believed that 'Mr Martyn was intent on engaging in some form of physical altercation with him'. His Honour ought to have found, but did not find, that such a belief was a reasonable one. Furthermore, it was reasonable for the applicant to perceive that, in the circumstances, extreme force would be required to deter the deceased; (e) The applicant sustained physical injuries during an altercation with the deceased; and (f) The deceased was persistent in acting aggressively and walking towards the [applicant] very shortly before [Mr Martyn] was stabbed. The evidence to support this belief is cited above and is based upon Paine's evidence."
6. Contrary to the applicant's submissions, it was not necessary for the purposes of s 421 of the Crimes Act or otherwise for the sentencing judge to determine what matters it was reasonable for the applicant to believe. Rather, as occurred here, it was for the sentencing judge to determine what the applicant did believe and then assess the reasonableness of the applicant's response to those matters.
7. The facts stated in subparagraphs (a) to (d) reflect the judge's findings as to the applicant's actual belief (see Judgment at [71] quoted in [29] above). It would not have been appropriate for the judge to make the findings referred to in subparagraph (e) because, as I have indicated in [47] above, the evidence did not establish that the applicant suffered any injuries in the course of his altercation with Mr Martyn prior to Mr Martyn being stabbed. The matter in (f) to some extent reflects the evidence but overstates it. His Honour's finding in [71(6)] of the judgment, as follows, accurately reflected the evidence: "The deceased continued to walk in the offender's direction notwithstanding that the offender was holding what in reality was a replica gun which the deceased detected, as indicated by his warning to Ms Hill, that is, that the offender had a gun."
8. The applicant then submitted that the following findings made by his Honour, relevant to objective seriousness, were unreasonable: "● the applicant's conduct was 'quite extreme, indeed heinous'; ● the applicant's acts 'well exceeded what was required in acting in self-defence'; and ● the applicant 'severely' overreacted to the danger as he perceived it."
9. However, for the reasons I have indicated, the factual findings upon which these conclusions were founded were soundly based in the evidence at the trial. In these circumstances, it is not for this Court to form its own view about the degree to which the applicant's response was unreasonable and substitute its own view about objective seriousness for that of the sentencing judge when, as I consider to be the case, his Honour's findings were within the range of those reasonably open to him (Ramos v R [2015] NSWCCA 313 at [41]).
10. The applicant's following further submissions must all fail: (1) the sentencing judge placed too much weight on the fact that Mr Martyn was not armed, (2) the judge gave insufficient weight to the fact that it was an "escalating situation" and (3) the judge gave insufficient weight to the fact that Mr Martyn had initiated the confrontation. These are matters of weight for the sentencing judge (see [48] above).

Ground 5: whether the sentence was manifestly excessive

1. The applicant sought to establish this ground primarily by relying upon error of the nature alleged in the earlier grounds. Nevertheless, he did indicate that Ground 5 was pressed even if, as in my view should be the case, the earlier grounds fail.
2. In these circumstances, the ground must be approached on the basis that it has not been demonstrated that the sentencing judge made any specific error in making factual findings, or otherwise. To succeed on this ground therefore, it is necessary for the applicant to demonstrate that the sentence imposed below "was unreasonable or plainly unjust" (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]).
3. In my view the sentence imposed was within the range of those open to his Honour and was therefore not manifestly excessive. In so concluding I have taken into account that, as a 20% discount was allowed for the applicant's early offer to plead guilty to manslaughter, his Honour's starting point must have been 15 years imprisonment, with a non-parole period of 11 years and 3 months.
4. As has frequently been pointed out, the offence of manslaughter embraces a wide variety of conduct, rendering the sentences imposed in other cases of limited assistance (Goundar v R [2012] NSWCCA 87 at [44]). Nevertheless, I have had regard to the sentences in other cases to which the applicant drew attention, and to the Crown's comments on those cases. It is debateable whether those sentences indicate that the present sentence was, as the applicant submitted, "at the very top of the range" (Submissions at [72]). Even if they did, that would not indicate that the present sentence was manifestly excessive. To establish manifest excess, it is insufficient for an applicant to demonstrate that the sentence imposed below is "markedly different from other sentences that have been imposed in other cases" (Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59], referring to Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6] and Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]). Intervention is only justified where the difference between the sentence arrived at below, and sentences imposed in other cases "is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Hili v The Queen at [59], referring to Wong v The Queen at [58]).
5. It will suffice to refer on this topic to this Court's decision in Smith v R [2015] NSWCCA 193. On resentence in that case (following the success of another ground of appeal, unrelated to manifest excess) the applicant's sentence was reduced from imprisonment for 12 years with a non-parole period of 9 years, to imprisonment for 10 years with a non-parole period of 7 years and 6 months. The Court of Criminal Appeal accepted that the applicant's perception that he was in danger of being shot by the deceased was a "significantly mitigating factor" (at [72]), although in fact the deceased was armed only with knuckledusters. In the present case there was no suggestion that Mr Martyn was armed with a gun, or at all.
6. I accept, as the applicant submitted, that the applicant had a "high level of fear" arising from the fact that a man larger than him and who may well have been associated with the Bandidos motorcycle gang came to his street to confront the applicant in an aggressive manner. Nevertheless, I consider that the sentencing judge's conclusion that the applicant's response to this unarmed man's conduct was "quite extreme, indeed heinous" was well justified for the reasons given by his Honour, as was the sentence his Honour imposed.

Order

1. As none of the grounds of appeal has succeeded, the application for leave to appeal should be dismissed.
2. JOHNSON J: I agree with Macfarlan JA.
3. HARRISON J: I agree with Macfarlan JA.

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