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[2013] NSWSC 518
Supreme Court of NSW
2013-05-03
Adamson J, Gleeson CJ, Callinan JJ
Original judgment source is linked above.
Judgment 1On 1 November 2012 following a trial by jury Craig Pitts was convicted of the manslaughter of John Marceta (the deceased).
The facts 2As sentencing judge, I may not take facts into account in a way that is adverse to the interests of the offender unless the facts have been established beyond reasonable doubt, but if there are circumstances which I propose to take into account in favour of the offender it is sufficient that they be proved on the balance of probabilities: R v Olbrich [1999] HCA 54; 199 CLR 270 at [27], per Gleeson CJ, Gaudron, Hayne and Callinan JJ. 3On 2 August 2011, in the early hours of the morning, the offender's sister, Sharon, and his nieces, Tiffany and Stephanie, arrived in Sydney to stay with him at his unit on the 14th floor of an apartment block in Redfern. Later that morning, the offender went out with Tiffany to purchase groceries. While they were out on this errand, Leonard Gow, who purchased cannabis from the offender from time to time, visited the unit. The offender's sister told him that the offender was out and suggested that he come back later. 4When the offender returned with Tiffany he encountered Mr Gow and the deceased on the ground floor of his apartment building near the lifts. The offender understood that the two men wanted to purchase cannabis from him, as they had done on previous occasions, and told them to come back later. 5The offender went up in the lift with Tiffany to his unit. He and his sister went into the backroom of the unit to discuss personal matters and left the two girls in the loungeroom, near the front door. 6There was a knock at the front door. Tiffany went to the backroom to inform the offender that there was someone at the door. The offender, who realised that it was probably the deceased and Mr Gow at the front door, told her to tell whoever it was that they should come back later. Tiffany relayed the message through the front door. 7Shortly afterwards, the deceased kicked in the front door. The girls screamed in fright. They were so scared that they ran to the backroom and locked the door. The offender and his sister heard the noise and came to the front door. The offender opened the front door and called out to the deceased and Mr Gow, who were walking in the direction of the lifts and were already some distance away from the unit: "Why did you kick my front door in?" 8The offender recognised the deceased and Mr Gow. He knew that the deceased had been a boxing champion. He returned to his unit, grabbed a knife from the kitchen and went out into the hallway. He followed the deceased and Mr Gow down the hallway. About half way down the hall, there was an altercation between the offender and the deceased. When the men were about 14 metres from the entrance to the offender's unit the offender stabbed the deceased in the chest with the kitchen knife. The knife passed through the deceased's chest cavity and pierced his heart. The deceased stayed upright for enough time for him to continue a few more metres down the hallway away from the offender's unit in the direction of the lift. He then collapsed on the floor and died shortly afterwards. 9As soon as the offender realised what he had done, he retreated to his unit in a state of shock and dismay.
Reasons 10A jury which returns a verdict of guilty of manslaughter is not required to specify on what basis the verdict was returned. It is unnecessary that the jurors be unanimous as to the type of manslaughter of which they are satisfied the offender is guilty: R v Cramp [1999] NSWCCA 324; 110 A Crim R 198; R v Dally [2000] NSWCCA 162; 115 A Crim R 582. It is generally inadvisable for a trial judge to question the jury as to the basis of a verdict of manslaughter, it being a matter for the sentencing judge to find the relevant facts consistently with the jury's verdict: R v Isaacs (1997) 41 NSWLR 374. Accordingly, I did not question the jury as to the basis of its verdict. 11The Crown contended that I should find facts consistent with manslaughter by excessive self-defence because it had established beyond reasonable doubt at least an intention to cause grievous bodily harm. 12The offender submitted that I should find facts consistent with manslaughter by unlawful and dangerous act. He submitted that, although the knife penetrated the deceased's heart, the offender did not intend to stab him there, but thought that he was stabbing the deceased in the stomach. 13Even if the accused thought that he was stabbing the deceased in the stomach and did not appreciate that the knife would pierce the deceased's heart, I am satisfied that the offender intended to cause the deceased grievous bodily harm. I am not, however, satisfied that the offender intended to kill the deceased. 14Neither counsel contended that the jury could have found manslaughter on the basis of provocation. Nor do I consider that there would be any proper basis for the jury to have returned a verdict of manslaughter on that basis. The deceased's act of kicking down the door, although provocative, did not cause the offender to lose his self-control to the extent required for such a verdict. I consider the offender's act of picking up the kitchen knife to have been a deliberate and considered one, albeit that he was angry when he did so. 15In these circumstances, manslaughter by excessive self-defence is the finding which is consistent both with my finding as to the offender's intention and the jury's verdict. I consider that manslaughter by unlawful and dangerous act and manslaughter due to provocation are both excluded by reason of the matters referred to above. 16Accordingly I am of the view that it is reasonably possible that the offender believed that his conduct was necessary in self-defence or in the defence of his sister or his nieces. I am satisfied that the offender's conduct was not a reasonable response in the circumstances as he perceived them to be because his act of stabbing the deceased was excessive. 17In light of my findings above, I find that the offender committed manslaughter by excessive self-defence.
Sentencing - manslaughter 18I was taken to a number of cases involving the sentencing of offenders for manslaughter. It is well recognised that of all offences, manslaughter produces the greatest variety of circumstances affecting culpability. Consequently there is a substantial range in the sentences imposed for this offence: R v Lavender [2005] HCA 37; 222 CLR 67, per Gleeson CJ, McHugh, Gummow and Hayne JJ at [22]. 19The fundamental touchstone for sentencing in such cases is that there has been an unlawful taking of human life for which the offender has been found criminally liable and for which he must be sentenced to imprisonment. Principles of punishment, retribution and deterrence play their part. Particular regard must be had to the features relevant to the seriousness of the offence as well as any mitigating circumstances.
Maximum penalty 20The maximum penalty is an indication of the relative seriousness of the offence (Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31], per Gleeson CJ, Gummow, Hayne and Callinan JJ) and is therefore to be taken into account under s 21A(1)(c) of the Crimes (Sentencing Procedure) Act 1999. 21The maximum term of imprisonment for manslaughter is 25 years: s 24 of the Crimes Act 1900. There is no standard non-parole period.
Objective seriousness 22The deceased died because the offender responded instantaneously to the deceased's act of violence in kicking his front door down. The offender assessed correctly that the deceased was in significantly better physical condition than he was. In a heinous and misguided attempt to redress the physical discrepancy between them, he armed himself with a knife before confronting the deceased in the corridor outside his unit. 23The offender bore no longstanding animosity or hostility towards the deceased. Nonetheless, he intended to cause the deceased grievous bodily harm. The offender misjudged the threat which the deceased posed to him and his family. By resorting to violence with a dangerous weapon he overreacted, with disastrous and irreversible consequences.
Aggravating factors 24It is an aggravating factor that the offender used a weapon.
Mitigating factors 25I am satisfied that the offence was not part of a planned or organised criminal activity. The offender was provoked by the deceased's act of kicking in his front door. The effect of the provocation was heightened because the deceased knew that the offender's sister and young nieces were inside the flat. 26The offender has no significant record of previous convictions. I am satisfied that the offender is unlikely to re-offend. I consider the offender to have good prospects of rehabilitation. 27The offender has acknowledged the loss he has caused and I accept that he has shown remorse. I am satisfied that his distress following the offence was not limited to concern for his own predicament and also reflected regret and contrition for what he had done.
Subjective features 28The offender had a very troubled childhood. He was the youngest of six children. He does not know his biological father. His mother was unable to care for him and did not have the emotional or financial resources to bring up six children on her own. From a young age the offender spent considerable periods either with other family members with whom he sought refuge or without any home at all. He attended many schools and had substantial difficulties in learning. He was often victimised by his classmates and, as a result, he frequently refused to attend school. As a child he suffered from seizures due to epilepsy, which remained undiagnosed for several years. 29From his early teens the offender suffered from depression and low self-esteem and often felt hopeless about his life. As a result he turned to alcohol and drugs from the age of about 12. He drank heavily between the ages of 12 and 16 although he has not been a regular drinker as an adult. He began using heroin when he was 12 and became addicted. 30In April 2010 he was referred to Dr Byrne by his general practitioner for treatment of his opioid dependency. He began an authorised course of treatment with methadone and made what Dr Byrne described as "excellent progress". He attended the practice regularly for medication, counselling and random supervised urine testing. Dr Byrne commented in a report dated 30 November 2012 that the offender was well-presented and polite to the staff at the surgery and was invariably alert, oriented and in good spirits. He was rarely, if ever, seen to be intoxicated. 31A test taken of the offender's blood shortly after the offence was committed did not indicate the presence of any intoxicating substances that would have affected either his self-control or his behaviour.
Special circumstances 32The offender submitted that there are special circumstances justifying the reduction of the non-parole period. He relied on his disturbed childhood, his epilepsy and the brain damage that might have been caused by epilepsy or past substance abuse in combination. The Crown submitted that there are no special circumstances that would warrant a departure from the statutory ratio between the non-parole period and the total term as provided for in s 44 of the Crimes (Sentencing Procedure) Act. 33In Collier v R [2012] NSWCCA 213 McClellan CJ at CL (RA Hulme and Schmidt JJ agreeing) addressed the circumstances in which such a finding will be appropriate and said at [36]: " When an offender's history of offending or personal circumstances indicate that he or she would benefit from an extended period of supervision within the community a finding of special circumstances may be appropriate. . . The fact that a person has no previous criminal record and, accordingly, has not previously been incarcerated is a matter relevant to the total sentence and non-parole period. However, it is unlikely to be a circumstance warranting further leniency to an offender by a reduction in the term of the non-parole period. . . ." 34Having regard to the sentence to be imposed, I consider that a parole period in accordance with the statutory ratio will be sufficient for supervision of the offender within the community. I am not satisfied that there are special circumstances.
Pre-Sentence custody 35It is agreed that the offender's sentence should be backdated to 16 September 2012 in order to take into account the period which he has already spent in custody.
Victim impact 36Retribution is one of the many aspects of punishment and is particularly significant when a life has been taken. However, under laws that have been in existence for a long time, the loss suffered by the deceased and his family cannot be reflected by any sentence I impose. 37In the course of the sentencing hearing the Crown tendered a Victim Impact Statement by the deceased's brother, Robert. I accept without qualification the loss of the deceased which is felt on a daily basis by those who loved him. I also accept that there has been no lessening of sadness since his death. I take this opportunity to extend my personal sympathies to the late John Marceta's family and friends.
Sentence 38Craig Pitts: For the manslaughter of John Marceta, I sentence you to a term of imprisonment of 10 years, commencing 16 September 2012, with a non-parole period of 7 years and 6 months. The earliest date upon which you are eligible for release on parole is 15 March 2020.
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: 09 May 2013
R
Craig Charles PITTS
[2005] HCA 25
[2005] HCA 37
(1997) 41 NSWLR 373
(1997) 41 NSWLR 374