R v Black

Supreme Court of NSW|2021-02-09|Before: Cavanagh J, Legislation Amendment J

Judgment

On 4 May 2018, Benjamin John Black ("the offender") killed Jacob John King during a fight or struggle with him.
On 5 February 2021, he entered a plea of guilty to manslaughter and the Crown has accepted that plea. The sentencing hearing took place in Port Macquarie on 9 February 2021. This is the sentencing judgment.
The offender was originally charged with murder in respect of the killing of Mr King (as at the time of his arrest on 7 May 2018).

Circumstances of offending

Although the jury was empanelled, no evidence was adduced prior to it being discharged on acceptance of the offender's guilty plea.
It is necessary that I make findings for the purposes of sentencing. Whilst the parties have agreed on most of the facts, not all of the relevant facts have been agreed. For example, whilst it is agreed that the offender told the Police that Mr King lunged at him with the knife, it is not agreed that this actually happened. The dispute between the parties really relates to what happened in the moments before the knife entered Mr King's body.
Any facts that I find must be established on the balance of probabilities. Importantly, I should not make findings adverse to the offender for the purposes of sentencing unless the facts are established beyond a reasonable doubt. [1]
For four years prior to December 2017, the offender was in a relationship with Amanda Quinlan.
In December 2017 and whilst still in a relationship with Ms Quinlan, the offender commenced a custodial sentence for a number of offences involving larceny and dishonestly obtaining financial advantage by deception. The offender has a relatively lengthy criminal history. As I will detail later, he has spent a number of years in custody for various offences.
On 2 May 2018 the offender was released on parole from the Mid North Coast Correctional Centre. Shortly prior to his release, he had been informed by Ms Quinlan that she had been seeing Mr King. I take this to mean that she had formed a relationship with Mr King.
The offender is said to have become upset at the news but then said to Ms Quinlan, "I hope you have a good life".
On release, the offender stayed with his parents in Port Macquarie.
Mr and Mrs Black have been supportive of the offender throughout all of his troubles. Indeed it is worth emphasising at this point that the offender comes from a very supportive and good family. He has two siblings who continue to support him. However, the offender has experienced quite a number of difficulties in his life on which I will comment later in this judgment.
According to his father, on the day that the offender was released, he appeared to be very fit and hopeful of forging a better life.
On 3 May 2018 he attended an appointment with his probation and parole officer. Then on 4 May 2018 he went to the Community Corrections Officer on an unscheduled visit and spoke to his caseworker.
On the same day, he commenced to make enquiries as to where Ms Quinlan might be staying. After ascertaining that she had stayed with Mr King at the premises of a friend, Michael ("Mick") Berecry, he caught a taxi to those premises on Rushcutter Way in Port Macquarie, arriving at around 12.10pm.
At that time, Mr King was taking prescription medication known as Xyprexa and Lyrica and he appeared to Ms Quinlan and Mr Berecry to be sedated when he got out of bed that morning. His speech was affected.
When the offender arrived at the house, he walked straight in without knocking. Mr Berecry had seen him just before he entered. After he entered, he went straight to Ms Quinlan who was at the kitchen sink, giving her a kiss and saying, "Hello to you too".
Immediately thereafter, Mr King came out of the bedroom and greeted the offender. He gave him a beer from the fridge.
After drinking some of the beer, the offender took his t-shirt off and said to Mr King "Do you want a lesson or a hiding?". He "shaped up" to Mr King. According to Ms Quinlan and Mr Berecry, Mr King appeared fearful. The offender was a bigger man.
Ms Quinlan intervened, telling the offender to stop it and asking him why he wanted to hit him. The offender replied, "Well he's taking you and he's gotta get a hiding or learn a lesson for that".
Ms Quinlan and the offender then went into the bedroom where they had a conversation. This appeared to calm down the offender.
In the meantime, Mr King left the house. Because he was scared of the offender, he took a knife from the kitchen and placed it in the pocket of his shorts. He also took two bottles of beer with him.
At 12.21pm, whilst he still remained out the front of the house, he called a friend and asked to be picked up. He was mumbling and sounded scared. There was thus only a matter of minutes between the offender arriving and Mr King being out the front, apparently scared.
A little while later, the offender also left the house and came across Mr King still in the front yard. Realising that the offender had come out of the house, Mr King pulled out the knife and started waving it in his left hand. I take this to be indicative of his state of mind at the time, that is, he remained afraid of the offender.
The offender was himself fearful of being injured by the knife. He was able to grab Mr King's left hand. A struggle ensued. Paragraph 24 of the agreed facts, which I accept, is as follows: "The offender was then fearful of being injured himself. He was able to grab the deceased's left hand. The offender struggled with the deceased, and in the course of doing so forced the left hand of the deceased backwards and upwards into an awkward position, then twisted the hand of the deceased so the knife entered the left side of the body of the deceased, causing a deep wound to him. The knife remained in the wound."
The offender then left the front yard and went back into the house, telling Ms Quinlan, "I think I've just killed your man … can you call him an ambulance or something". The offender grabbed his backpack and ran out the back door. Ms Quinlan went out the front door looking for Mr King.
At this stage, Mr King was observed by a neighbour walking away from the house on Rushcutter Way. He had no shirt on and seemed to be staggering. He was calling out. He still had the two bottles of beer in his hand. He appeared to be clutching at the left side of his chest. As the neighbour thought that he might be intoxicated, he went back into his house.
Ms Quinlan caught up to him. She heard Mr King yelling, "help, help". He was stumbling. She observed him pull the knife from his wound and he then began to bleed profusely. He collapsed face down on the lawn outside a property on Beacon Court. Residents came to their assistance and emergency services were called.
The first ambulance arrived at 12.40pm. Although the wound was no longer bleeding, Mr King was unconscious. He was taken to Port Macquarie Base Hospital and underwent surgery but at 5.00pm life was pronounced extinct. The cause of his death was described as: "penetrating left chest injury was (the) source of cardiac and lung lacerations that resulted in catastrophic haemorrhage prehospitally, which lead to secondary coagulopathy and hypoxia which were unable to be corrected despite all efforts".
At 1.10pm, the Police attended at the offender's parents' house. Mr Black provided the Police with the offender's mobile number. After the Police left, Mr Black called the offender and spoke to him. The offender told his father that he had been in a fight. Mr Black told him to go to the Police. He did not do so initially but handed himself in on 7 May 2018. He said at the time, "yeah, I didn't mean to hurt him at all".
The offender participated in an electronically recorded interview. During the interview he confirmed that he had gone to Mr Berecry's premises on Rushcutter Way to see Ms Quinlan. He described the altercation, telling the Police that the deceased: "(t)ried to lunge at me with a knife and … in one motion I moved forward, the knife went in him … I twisted his hand back towards himself, and it just went straight in like butter. … I just grabbed his arm and twisted it up towards him. … the knife went in him, it was all the way down to the handle. …"
The offender said he felt panic when Mr King came at him with a knife. He described the knife as "all metal".
At the conclusion of the interview, the offender said about Mr King, "I didn't hate him or anything … he was a friend of mine".
The offender did not receive any injuries during the altercation.
On 8 June 2018, the offender was spoken to by police officers at the Mid North Coast Correctional Centre. While he declined to answer questions, he did tell the Police, "if he hadn't come attack me with a blade he'd, he'd still be alive. I didn't mean to do it".

Basis of manslaughter

I am sentencing on the basis that the offender acted in self-defence, although with excessive force. Self-defence with excessive force operates as a partial defence to murder.
As set out in s 421(2) of the Crimes Act, in circumstances of self-defence with excessive force, 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.

Family impact statement

Maleah Baker, the young daughter of Mr King, bravely read out her heartfelt family impact statement.
I will not repeat it all here but she detailed the trauma and loss that she has suffered, as a result of the death of her father. She emphasised her very close bond with him and ongoing grief. She says that she has been diagnosed with PTSD, depression and separation anxiety.
I expressed my sympathy directly to her during the sentencing hearing and I do so again today. Indeed, I express my sympathy to all members of Mr King's family.
I do not know much about Mr King. It is clear that he was not the instigator of the events of the day and in no sense deserved what happened to him.
Indeed, it is an agreed fact that Mr King took and ultimately produced the knife because he was fearful of being assaulted by the offender.
I have regard to the family impact statement as an aspect of the harm done to the community, mindful of the limitations on the use of such statements in the sentencing exercise. [2]

Seriousness of the offending

The crime of manslaughter involves the felonious taking of human life, which is regarded by the law as a most serious crime. [3]
It has often been emphasised that the circumstances giving rise to a conviction for manslaughter and degrees of culpability are so varied that no established sentencing tariff can be applied.
The seriousness of the offending is determined with reference to the facts of the killing and not the class of manslaughter. [4]
Each case depends on its own facts and circumstances. Objective seriousness must be assessed without reference to matters personal to the offender or particular class of offender and only with reference to the nature of the offending. [5]
The assessment of the objective seriousness of the offending is part of the discretionary process of determining where within the range of sentences that might be imposed, the sentence for this offender might fit. The assessment of objective seriousness is not a reflection of the impact that the death of Mr King might have had on others or intended to in any way minimise the feelings of grief or loss experienced by members of his family.
The offender is being sentenced for the crime of manslaughter on the basis that he acted in self-defence but with excessive force having regard to s 421(1) of the Crimes Act, which is in the following terms: 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.
The Crown accepts that the offender believed that his conduct was necessary in order to defend himself. His conduct was the forcing of the knife into Mr King's body. In any event, this must be so, as the Crown accepted the offender's guilty plea. The offender must also be taken to accept that his conduct was not a reasonable response in the circumstances as he perceived them.
There is an issue between the parties as to what the circumstances might have been as he perceived them and what was offender's conduct for the purposes of s 421. The conduct must be the stabbing of Mr King by means of the forcing of the knife into him.
However, Mr Evers, on behalf of the offender, submits that I should not engage in a type of frame-by-frame analysis of what happened once the offender and Mr King were physically engaged with each other. He says that I should accept that, as the offender told the Police, Mr King lunged at him and that the offender considered it necessary to turn the knife back onto and into Mr King in the process of defending himself.
In doing so, his conduct was unreasonable because he could have adopted other measures for his self-defence before he got to that point.
The Crown submits that the offender had many options and that his conduct was not reasonable in the circumstances as he perceived them and that the conduct should include that additional action of forcing the knife into Mr King even after he had gained control and had Mr King's hand in an awkward position.
The problem for both parties is that I am unable to make findings as to precisely what happened in the moments before the offender became entangled with Mr King.
Mr King was waving the knife at the offender but it is not known why the offender did not take flight or whether it was the offender who then chose to in some way engage with Mr King by grabbing his arm. There is merit in Mr Evers's submission that it is now difficult to apply hindsight in a moment-by-moment analysis, speculating on how the offender might have twisted Mr King's arm differently or not applied as much force as the knife slid into him.
Further, I am unable to make any finding as to the precise amount of force that the offender might have been applying as the knife entered Mr King's body. The entry of the knife was not impeded by any bone and once it pierced the skin, it would enter into the soft tissue relatively easily. Indeed, this is what the offender says happened.
Whilst it is necessary to assess the circumstances as the offender perceived them at the relevant time and then to determine the degree to which his conduct departed from what would have been a reasonable response to those perceived circumstances, [6] I am unable to make some sort of hindsight analysis of what the offender should have done at the moment that he had Mr King's arm in an awkward position. Other than that the circumstances as he perceived them did not require him to force the knife into Mr King (no matter how little force was required), he may have felt threatened but he had overpowered Mr King and there were other options available to him before he got to that point.
Whilst the offender told the Police that Mr King lunged at him, the fact that this actually occurred is not agreed and I am unable to make that finding. I am left in the position that whatever happened after Mr King was waving the knife in his left hand, the offender used excessive force as he grappled with Mr King. There were other options available to the offender before the knife entered Mr King's body.
I do not consider that the offender intended to kill Mr King but I accept that he intended to inflict grievous bodily harm upon him. This resulted in his death.
The offender submits that I should find that the objective seriousness of the offending falls in the very low range for this type of offence.
In my view, the objective seriousness of the offending is not in the very low range but is still below mid-range. I say that for a number of reasons, including: 1. Whilst the offender attended at the premises where Mr King was staying and made some sort of threat to him, the offender did not produce or ever have a weapon in his possession. The offender did not bring the knife to the fight. However, he must be taken to have had control of the knife in the end. 2. Whilst Mr King was fearful that he might be assaulted by the offender, there is no evidence of any earlier assault or any type of injury to Mr King. 3. Although the offender turned the knife back into Mr King, there is no evidence that he made any threat to Mr King regarding use of the knife. 4. The killing of Mr King was not planned, contemplated or anticipated. Plainly, the offender was annoyed, aggravated or angry that Mr King had taken up with Ms Quinlan and threatened to give him a hiding, but that is a far different thing from forming an intention to kill Mr King. I am satisfied that the offender never had that intention. 5. Mr King suffered one wound which was obviously fatal to him. The pathologist, Dr Alan Cala, identified that the cause of death was the stab wound to the chest, finding: "The entry point of the wound was on the left upper and outer chest area, 60mm below the armpit and 50mm above the level of the left nipple. The wound was traced internally and the depth of the wound was consistent with the whole of the blade having entered the body of the deceased. The wound track from skin to heart was left to right (in the anatomical position) and downwards at an angle of approximately 45 degree from the vertical plane."
Having said that, it is clear that the offender was the instigator of the events which happened on the day. The offender threatened Mr King and Mr King became fearful of what the offender might do. This led to Mr King grabbing the knife and going outside. The offender went outside and the confrontation ensued.
Further, for the reasons set out later in this judgment, I reject the offender's submission that his moral culpability is reduced because of his cognitive impairment. I will deal with the offender's cognitive impairment when considering his subjective case but for the reasons which I set out, I do not accept that the death of Mr King was causally related to his cognitive impairment.

The offender's background

I have regard to all of the material relied upon including the affidavits of the offender and his father as well as the expert report and the Crown material.
The offender is currently 35 years of age. He has spent most of his life in Port Macquarie, although he did live in Wilcannia for a period of 12 months in about 1993.
There is no evidence of any issues within the family that might impact on the sentencing process. His father, Graeme Black, was in Court during the trial and his mother attended on occasions, particularly on the sentencing hearing. He has two siblings. His sister, Jaimie Black, attended during the sentence hearing to show support to him. His father is a former police officer and none of the other members of the family have ever been in trouble with the law.
Unfortunately, for the offender, he was involved in an accident when he was around 6 or 7. Whilst riding his bike, he collided with the trailer of a large truck. He was found in a semi-conscious state. He remained in hospital for a period of 3 days.
After the accident, he experienced nightmares. Further, according to his father, he had difficulties concentrating at school. At the time, they were living in Wilcannia. He was a police officer's son. His father details that as a police officer's son, he often got involved in fights at school.
Again, according to his father, the result of his accident was that his learning ability declined and his behaviour worsened. He became unruly and disruptive.
Despite achieving good marks at school prior to the accident, by high school, he was assessed as being in the lowest percentile in the State. He was expelled from school in 2001 at the age of 15. Plainly, he suffered learning difficulties which impacted on his behaviour. Sadly, the Court is all too familiar with the ways in which learning difficulties and problems at school can lead to long-term behavioural problems.
Further, in 2005, he suffered a seizure.
The offender underwent surgery but shortly thereafter, he commenced to have epileptic fits. He lost his licence and was placed on a disability pension. His trouble with the Police increased. However, in more recent years, the offender's seizures have reduced and he no longer takes medication.
Prior to 2010, the offender formed a relationship and his girlfriend gave birth to his daughter. Unfortunately, the offender was in gaol at the time of the birth of his child. It seems that after some initial contact, his daughter may have moved to Tasmania with her guardian.
As far as I can determine, the next serious relationship in which the offender was involved was with Ms Quinlan. He commenced that relationship when he was approximately 29. Two years later, Ms Quinlan fell pregnant. The child was stillborn. Unfortunately, the offender was again in custody when that happened. However, their relationship continued, at least until he again entered custody in December 2017.
The offender's employment record has been spasmodic. He says that he had learning difficulties with reading and writing. He says that he has worked in cement rendering on and off since leaving school. He says that he spoke most recently to his old boss on 7 February 2021 and he was informed that he could have his job back in the future.

Drug use

The offender has a long history of drug use. He first used cannabis at the age of 11. After he left school, he commenced taking amphetamines. He says that he first used ice at the age of 23 and used it daily for a period. He says that he stopped using ice when he entered custody in 2017 and that he remained off drugs whilst he was in custody for that 5-month period.
As a result of the death of Mr King, he has been obtaining buprenorphine (illegally) and using it as a stress reliever. He says he wants to stop using this drug. He would like to see a drug and alcohol counsellor whilst in custody.

The offender's criminal history

The offender has a criminal history going back to 2003. Unfortunately, more than half of his adult life has been spent in custody for a range of offences.
During the period 2003 to 2015, he was convicted of a number of offences of violence. In 2003, he was convicted of common assault and break and enter.
In 2006, he was sentenced to 9 months' imprisonment (suspended) for the offence of assault occasioning bodily harm. In 2011, he was again convicted of assault occasioning actual bodily harm as well as robbery. In 2014, he was convicted of a number of violence-related offences, including stalk and intimidate and assault occasioning actual bodily harm.
He has further convictions for assault in 2015.
He has also spent time in custody for other offences.
In 2012, he was convicted of larceny and possessing housebreaking implements.
In 2013, he was convicted of driving offences as well as resisting officer in execution of duty.
Then in 2017 he was convicted of larceny and dishonestly obtaining financial advantage.
He was sentenced to imprisonment for 9 months commencing 3 December 2017 with a non-parole period of 5 months. He was on parole at the time of the offending, the subject of these proceedings.
The Crown did not submit that his criminal history was such that it should be considered an aggravating feature for the purposes of sentencing. The Crown submitted that his criminal history was such that it should disentitle him to any leniency. I agree with that submission. His criminal history does not assist him, particularly as it involves a number of instances of violent offending.
However, the fact that he was on parole at the time of the offending is an aggravating feature which must be taken into account.

Expert medical evidence

The offender relies on the expert report of Dr Ilana Hepner, Clinical Neuropsychologist, dated 12 April 2019. It is apparent from the date and content of that report that the report was obtained in part to determine whether the offender was fit to stand trial. There was no issue about that in these proceedings. The offender relies on the report for the purposes of establishing that he has suffered from cognitive impairment on a long-term basis and that his offending was causally related to that impairment.
Dr Hepner assessed the offender on 11 December 2018. She obtained details of his educational and occupational history to which I have already referred. She also obtained a history of his accident, brain surgery and seizures, as well as his drug use.
Dr Hepner spoke to the offender's parents as part of the process in forming her opinion. Suffice to say that Dr Hepner carried out a number of psychological tests so as to determine the offender's level of intellectual functioning and its effect on his memory and behaviour. She administered the WAIS-IV test to evaluate his level of intellectual function. Based on that testing she considered that his overall level of intellectual function was in the borderline impaired range.
Importantly, she noted that executive function generally refers to higher-level ability such as reasoning, planning, problem solving, flexible thinking, task initiation, task persistence and regulation of thinking and behaviour. She considered that his speed and flexibility of thinking and complex attention was significantly impaired. Verbal abstract reasoning and visuo-constructional problem solving was rated in the low average range. He also suffered a significant impairment of his ability to inhibit his responses and shift between tasks and activities.
Dr Hepner concluded that the offender demonstrates significant impairment in areas of frontal executive function. This leads to marked problems in his everyday environment. Less severe deficits are evident in his intellectual function, speed of information processing and memory performance. She considered his impairments and behavioural problems consistent with the permanent and chronic effects of acquired brain injury. Further, the history of substance abuse would further impact upon his brain function and lead to a poor overall outcome.
She concluded as follows: "Considering the longstanding nature of his conditions, it is likely that Mr Black was experiencing the above cognitive and behavioural problems at the time of the events in question. These deficits may have impacted upon his ability to quickly generate or consider alternative options and/or regulate his behaviour at the relevant time."
She also made recommendations as to his care. She said he would likely benefit from correctional case management and attending relevant programs during his period of incarceration. When he is released into the community, he would likely require a high level of ongoing and long-term support to help him remain abstinent from illicit drug and use and prevent relapses. He would need to be under the care of a case manager and would need ongoing neurological review, long-term engagement in an appropriate drug rehabilitation program, long-term psychological therapy, psychiatric review and vocational assistance.

Cognitive impairment

Cognitive impairment or mental illness may be taken into account in a number of ways including: 1. when it is causally related to the offending, it may reduce the moral culpability of the offender; 2. it may tend to suggest that the offender is not a suitable vehicle for the application of general deterrence or, in some circumstances of severe cognitive impairment, specific deterrence; 3. it may mean that a prison sentence will weigh more heavily on the offender than it would on others; and 4. the cognitive impairment may be such a level that the offender presents generally as a danger to the community. [7]
It does not seem to me that, based on the evidence in this matter, points three or four are relevant in the circumstances of this matter.
The offender submits that I would be satisfied that the offending was causally related to his cognitive impairment and also that it results in less weight being given to general deterrence. I accept the latter proposition but not the former. The difficulty with finding that there is any relationship between his cognitive impairment and the offending is that there is considerable uncertainty as to what happened once the offender left the house to go outside and came upon Mr King holding the knife.
I do not accept that the cognitive impairment is of a type and severity that it impacted upon the offender's general conduct when he arrived at the house where Ms Quinlan and Mr King were staying. Certainly, shortly after arrival, he threatened Mr King and wanted to fight him but there is no evidence that that conduct can be attributed to his cognitive impairment.
Further, I accept that the offender was somewhat calmed down by Ms Quinlan. This would seem to be somewhat inconsistent with the proposition that his cognitive impairment reduced his ability to control his behaviour and caused the events which happened in the front yard.
Whilst Dr Hepner confirms that he suffers from an acquired brain injury, at its highest, she opines that his cognitive and behavioural problems may have impacted upon his ability to quickly generate or consider alternative options and regulate his behaviour at the time. Without other evidence, an opinion from an expert that his condition may have impacted upon his conduct does not satisfy the evidentiary burden.
It does not seem to me that the evidence establishes a causal link between his cognitive impairment and the offending.

Deterrence

However, I accept that less weight should be given to general deterrence in the circumstances in which he has suffered from long-term cognitive impairment. [8]
I accept that some weight must be given to specific deterrence. The offender has a lengthy criminal history which includes a number of offences of violence.

Remorse

The offender has demonstrated remorse. Indeed, his conduct since the killing of Mr King demonstrates significant remorse. This is a mitigating factor.
Immediately after Mr King was stabbed, the offender went inside and told Ms Quinlan that he thought he killed Mr King and an ambulance should be called. Although he absconded for matter of days, he presented at the police station on 7 May 2018. He said that he did not mean to hurt him at all. When he participated in the electronically recorded interview (at the end of the interview) he said he "didn't hate him or anything … he was a friend of mine".
He made an earlier offer of a plea of manslaughter. Further, and perhaps most significantly, he says in his affidavit of 9 February 2021 that he wished he hadn't stabbed Mr King and that he was sorry for what he had done. He had been thinking about his family. He knew that Mr King had a daughter and he thought about her. This evidence was not the subject of challenge.
Further, I have been provided with a handwritten letter from the offender addressed to the family of Mr King in which he expresses his remorse.

Prospects of rehabilitation

The offender submits that I would find that he has good prospects of rehabilitation. The Crown submits that I would not accept that he has good prospects.
It is difficult to assess his prospects of rehabilitation. He has a lengthy criminal history but he says that the first occasion when he has remained off drugs for a lengthy period was when he entered into custody in 2017. Further, he says that he wishes to seek assistance for his drug problem (which he has never had in the past). His family is very supportive and there is accommodation waiting for him on the Gold Coast when he leaves custody. His old employer is apparently willing to give him a job.
He is obviously aware of the severity and significance of what he has done and there at least some prospect of that, despite his cognitive impairment, he may be able to make a fresh start. Certainly the evidence of his father would tend to support that view.
I accept that he has some prospects of rehabilitation, although I am unable to conclude that they are necessarily good in all the circumstances.

Special circumstances

The offender submits that I would find that there are special circumstances requiring that he spend a lengthier period on parole. Those circumstances are that because of his cognitive impairment and long-term drug problems and his extended period in custody over the past 15 years, he will require greater than usual supervision and assistance on release from custody. These views are supported by Dr Hepner. I have already referred to Dr Hepner's recommendations in relation to the sort of assistance and treatment he will require on release from custody.
I find special circumstances on this basis.

Discount for early plea

There is a significant issue between the parties on the discount to be applied for the offender's early plea of guilty to the charge of manslaughter.
The Crown submits that the offender is entitled to a discount of 10 per cent of the otherwise appropriate sentence for the utilitarian value of his plea of guilty in accordance with s 25D(2)(b)(ii) of the Crimes (Sentencing) Procedure Act 1999 (NSW) ("Sentencing Procedure Act").
The offender submits that he should receive a discount of 25 per cent and relies on s 25E of the Sentencing Procedure Act. The offender submits that manslaughter was not the offence the subject of the proceedings within the meaning of s 25E(2)(b) and, as such, it should be taken to have been a different offence, thereby giving rise to the operation of s 25E.
The Crown's submits that the offence of manslaughter with which the offender was charged and has been convicted and for which he is being sentenced does not fall within the meaning of "different offence" in s 25E and thus it has no application. The Crown submits that the only discount available to the offender is that which is available under s 25D(2)(b).
Neither party was able to provide me with any case in which the issue raised by the offender has been determined.
In R v Gale, [9] the offender received a 25 per cent discount in accordance with s 25E(3)(a) having made a formal offer to plead guilty to a charge of manslaughter by reason of excessive self-defence during committal. The offender had been charged with murder. Only on the first day of the trial did the Crown present a fresh indictment which included an alternative count for manslaughter to which the offender pleaded guilty and which the Crown accepted in full satisfaction of the indictment. That offence was not the subject of the proceedings that when the offender made the offer in that matter.
The resolution of the issue depends upon the proper construction of the relevant provisions. Whilst Mr Evers submits that in the circumstances it would be unfair to the offender if he did not receive the 25 per cent discount, he accepts that the issue does not depend upon the consideration of fairness but rather the construction of the legislation.
As the proceedings were commenced after 30 April 2018 and the offender is being sentenced for an offence being dealt with on an indictment, Division 1A of Part 3 of the Sentencing Procedure Act applies.
It follows that cases dealing with the earlier legislation such as Magro v R [10] are of limited relevance. Indeed, in Magro v R at [46], Gleeson JA (RA Hulme J and Button J agreeing) said: "[46] It is common ground that the prescribed sentencing discounts for guilty pleas to indictable offences contained in Div 1A of Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW), in particular s 25E, are not applicable in the present case, as these provisions only apply to proceedings commenced on or after 30 April 2018: Sch 2, Pt 30 of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)."
The new provisions limit the discretion of a sentencing judge in respect of the discount for guilty pleas by fixing the circumstances in which a discount may be applied and the amount of the discount. [11] This is a change to the legislation which applied previously. Mandatory discounts for the utilitarian value of a guilty plea are as set out in ss 25D(2)(a)-(c).
The offender bears the onus of establishing, on the balance of probabilities, that he would be entitled to a discount. [12] The Court may determine not to apply the sentencing discount or to apply a reduced sentencing discount if it determines that the discount should not be applied or should be reduced because the level of culpability is so extreme that the community interest and retribution, punishment, community protection and deterrence can only be met by imposition of a penalty without allowance for the specified discount. [13]
Whilst Pt 3 Div 1A of the Sentencing Procedure Act has been considered in a number of cases, [14] these earlier decisions have not considered the argument raised by the offender in relation to s 25E(2)(b). Further, although Pt 3 Div 1A contains a definitions section (s 25B) and terms such as "negotiations document" and "new count offence" are defined, there is no definition of terms such as "the different offence" or "the offence the subject of the proceedings". Perhaps the legislature considered it unnecessary to define such terms of ordinary meaning.
Whilst the extent to which regard may be had to the second reading speech on introduction of the provisions [15] is somewhat limited, [16] the Crown and the offender pointed to different paragraphs of the second reading speech as follows: 1. The Crown referred to the following: "Schedule 2 to the bill outlines amendments to the Crimes (Sentencing Procedure) Act to introduce a strict fixed sentencing discount scheme. It replaces the existing common law sentence discount for the utilitarian value of a guilty plea. Currently large discounts of up to 25 per cent may be given for guilty pleas, which may be as late as on the first day of trial. Tightening the discount scheme as proposed will prevent these large discounts from being granted late in the process. Instead, fixed discounts will apply depending on the timing of the guilty plea: first, a 25 per cent discount if the guilty plea is entered while the case is in the Local Court, before the case is committed to the higher courts; secondly, a 10 per cent discount where the guilty plea is entered after the case has been committed to the higher court but at least 14 days before the first day of the trial, or the accused gives notice to the prosecutor of his or her intention to plead guilty at least 14 days before the first day of the trial and enters the plea at the first available opportunity; and thirdly, a 5 per cent discount if the guilty plea is entered in any other circumstances." 1. The offender referred to a later paragraph as follows: "The effect of proposed section 25E is that where the accused person made an offer to plead guilty to an offence, or a reasonably equivalent offence, which either the prosecution refused but then later accepted, or the accused is later found guilty of that offence, or a reasonably equivalent offence, the accused may be eligible for up to a 25 per cent discount. This is important because there are multiple offences that have similar elements and penalties. An accused person should not be required to offer to plead guilty to exactly the right charge, or to every possible variation of an offence, in order to obtain the discount."
I accept that the purpose of the new division is to generally remove the discretion from the sentencing judge and fix mandatory discounts. As the Attorney-General said, fixed discounts will apply depending on the timing of the guilty plea. A 25 per cent discount is only available if the guilty plea was accepted by the magistrate in the committal proceedings for the offence. Section 25D(3) applies in respect of a new count offence as that term is defined in s 25B (that is not relevant here).
Mr Evers submits that the offence of manslaughter should be construed as a different offence from the offence of murder and that the offence, the subject of the proceedings, was only the offence of murder. He says that the Crown was plainly only pursuing murder as is evident from its determination to pursue the proceedings up to the trial in circumstances in which the offender had offered a guilty plea to manslaughter at an early stage.
I took Mr Evers's submissions to be urging a contextual and purposive approach on the basis that the purpose of the legislation could not have been to preclude the application of a 25 per cent discount in the circumstances which exist in this matter. As he said when dealing with such serious offending, rarely would a 25 per cent discount be available if the legislation is construed as the Crown maintains.
It does not seem to me that reference to the second reading speech is of great assistance to either party, except insofar as it is readily apparent that the purpose of the new provisions is to limit the discretion that might have been available to a sentencing judge under the earlier legislation. Plainly, the legislation limits the entitlement to the greater discount. That might be viewed as unfair by the offender but that is not really the point.
The offender was originally charged with Mr King's murder (as at the time of his arrest on 7 May 2018).
Prior to the offender making an offer to plead guilty to manslaughter, a charge certificate was filed at Port Macquarie Local Court certifying the charge of murder and in the alternative, the charge of manslaughter. After that charge certificate was filed, the offender made the offer to plead guilty only to manslaughter. The plea offer was recorded in the case conference certificate. It was not accepted by the Crown and not subsequently withdrawn.
I hasten to add that the fact that the offender was granted leave to withdraw his guilty to manslaughter given on arraignment on 12 July 2019 is not relevant to the issue under determination.
Whilst the offender's submissions may have some attraction having regard to the old regime, I do not accept that the offence for which the offender is being sentenced was falls within the meaning of "different offence" in s 25E(2)(b).
Statutory construction should always start with the text of the provision. Section 25E(2) of the Sentencing Procedure Act commences with the words, "[i]n determining the sentence for an offence".
I am determining the sentence for the offence of manslaughter.
I am not determining the sentence for any other offence under s 25E(2)(a).
I accept that the offender made an offer recorded in a negotiations document to plead guilty to that offence but that offence was the subject of the proceedings when the offer was made. The fact that it was an alternative or lesser charge or that the Crown at that time did not wish to accept a plea of guilty to the lesser charge and wished to pursue the charge of murder, does not mean that the offence was not the subject of the proceedings when the offer was made.
By the time the offer had been made, the alternative charge of manslaughter had been preferred. The charge certificate had been filed in the Local Court. Those charges remained the same from that time and throughout the conduct of the proceedings.
In circumstances where there were two charges and the offender is being sentenced for one of those charges, it cannot be said that the charge of manslaughter was not the subject of the proceedings at the time the offer was made. In those circumstances, the only available discount to the offender is set out in s 25D(2)(b) being 10 per cent. The offender is thus entitled to a discount of 10 per cent on the sentence which I apply to the head sentence I otherwise would have imposed.

Other cases

The Crown handed up a number of other cases [17] in which offenders have been sentenced in respect of manslaughter based on self-defence with excessive force, specifically in circumstances in which it was the victim who possessed the knife.
Because each case is different and turns on its own facts and there is such a wide disparity in respect of sentences for manslaughter, these other cases have limited relevance. It does not seem necessary to detail the differing facts and circumstances and sentences in each of those cases at this time. I have had regard to them. I note that the cases do involve self-defence with excessive force and the use of a knife although, in each of the cases, the deceased person was plainly the instigator of the events which transpired and engaged in threatening conduct with a knife.

Commencement date of sentence

At the time of the offending, the offender was on parole for multiple counts of dishonestly obtaining financial advantage by deception and larceny. The offender had only been out of prison for two days prior to committing the offence. The offender had been sentenced to a period of imprisonment of 9 months with a 5-month non-parole period. The offender was arrested on 7 May 2018. He remained in custody from 5 September 2018 solely on remand for the offending, the subject of these proceedings.
The offender submits that the sentence should commence from the date he was arrested, being 7 May 2018. The Crown does not agree, although the Crown acknowledged that a period of concurrency is permissible.
In Callaghan v R, [18] Simpson JA (James and Hall JJ agreeing), having reviewed the authorities, observed that there is no absolute rule as to whether or not there should be some period of concurrency. As her Honour said, in some cases it may be unfair not to backdate to some point before the expiration of the earlier parole period. However, her Honour also considered that where the reoffending had occurred within a very short time of release on parole and the balance of term to which the offender was exposed to was quite short, it may be appropriate to proceed on the hypothesis of the whole of the period spent in custody up to the expiration of the parole period is referrable to the earlier offence and not to the subsequent offence.
Again, I do not take her Honour to have been laying down some hard and fast rule. It seems to me that it is appropriate to have regard to the fact that the offender reoffended very shortly after being released on parole and also that the only reason that parole was revoked was because of the particular offending which involves manslaughter based on self-defence with excessive force.
I would allow a period of concurrency. I backdate the sentence to 7 July 2018.

The sentence

The purposes of criminal punishment include the protection of society, deterrence of the offender and others who might be tempted to offend, retribution and reform.
As observed in Veen v The Queen (No 2), [19] those purposes overlap and none can be considered in isolation when determining what an appropriate sentence may be in the process of intuitive synthesis which is the sentencing process. I have had regard to the objective seriousness of the offending as well as the offender's subjective circumstances. I consider that a slightly longer period on parole is appropriate, having regard to my finding of special circumstances. I apply a 10 per cent discount to the sentence which I otherwise would have imposed, having regard to s 25D(2)(b) of the Sentencing Procedure Act.
Benjamin John Black, for the offence of manslaughter, I impose a sentence of imprisonment consisting of a non-parole period of 4 years 4 months with a balance of term of 2 years 5 months. The sentence will date from 7 July 2018. The offender will become eligible for parole when the non-parole period expires on 6 November 2022. That is a total sentence of 6 years 9 months. It would have been a sentence of 7 years 6 months but it has been reduced by 10 per cent because of the offender's early plea of guilty.
As the offender is convicted of a "serious violence offence", it is a requirement that he be warned of the existence of the Crimes (High Risk Offenders) Act 2006 (NSW) and of its application to the offence: s 25C. I ask the offender's solicitor to undertake that task on the Court's behalf.

Endnotes

R v Isaacs (1997) 41 NSWLR 374 at 377-378; Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [14].
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A(g), 28(4); R v Previtera (1997) 94 A Crim R 76.
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995) at 4 (Gleeson CJ); R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; 156 A Crim R 372.
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [49] (Howie J).
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]; GG v R [2018] NSWCCA 280 at [60].
Smith v R [2015] NSWCCA 193 at [36] and [45] (Simpson JA, Leeming JA and Hamill J agreeing).
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]; Barbieri v R [2016] NSWCCA 295 at [53] (Simpson JA, McCallum JA agreeing).
Director of Public Prosecutions (Cth) v De La Rosa at [177].
[2020] NSWSC 808.
[2020] NSWCCA 25.
Sentencing Procedure Act s 25D.
Sentencing Procedure Act s 25F(5).
Sentencing Procedure Act s 25F(2).
See, eg, R v Doudar [2020] NSWSC 1262 at [47]-[68] (RA Hulme J).
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW).
Interpretation Act 1987 (NSW) s 34; Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496; [2007] NSWCA 39 at [20]-[22] (Mason P, Ipp and Tobias JJA agreeing).
R v Smith [2009] NSWSC 1183; R v Hamilton; R v Sandilands [2007] NSWSC 452; R v Horton [2010] NSWSC 1007.
[2006] NSWCCA 58.
(1988) 164 CLR 465 at 476; [1988] HCA 14. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 February 2021

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)

Crimes (Sentencing) Procedure Act 1999(NSW)

At a glance

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Judgment (19 paragraphs)

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