R v Donald William Reeves

The basis of legal responsibility - manslaughter by excessive self defence

1. Counsel are agreed that the category of manslaughter applicable in the case is a statutory form of voluntary manslaughter, referred to as manslaughter by excessive self-defence: s 421 Crimes Act 1900 (NSW).
2. Given the absence of any eye-witness account, and the previous maintenance by the offender of his right to silence, the prosecution case was of necessity circumstantial in nature, even if augmented by the admissions made in the offender's conversation with his ex-partner which, although damning, were hardly explicit. However, direct evidence of what occurred was provided because the offender elected to give evidence during the proceedings on sentence and expose himself to cross-examination by the learned Crown Prosecutor. Doubtless ethically constrained by the acceptance of the plea to manslaughter, I think it can be said that the Crown are content to accept that the offender's account is accurate. I am satisfied beyond reasonable doubt of the narrative of fact I will now provide, based upon the offender's evidence and drawn from the learned Crown Prosecutor's summary of the salient features of his evidence, which Mr Young of learned Senior Counsel accepts is accurate.
3. The offender and his friend, Nick Zizas, shared premises leased from Housing New South Wales at Millers Point. In the days leading up to 11 June 2009, they had been drinking heavily. Mr Jones was known to them both, but was more of a friend of Mr Zizas than of the offender. The offender described him as a friend of his family and said he had met Mr Jones when they were previously in jail at the same time. Mr Jones joined their party before lunch on 10 June 2009. The three men drank fairly constantly into the night. As will happen with people who are drunk Mr Jones and Mr Zizas got into an argument over what Mr Jones alleged was a debt due to him from Mr Zizas of between two and three thousand dollars from the sale of some clothing on consignment. The offender sought to play the peace-maker. However, as happens with the intoxicated, the fire could not be quenched but continued to flare up, growing more heated with Mr Jones calling Mr Zizas foul names and banging the table. The offender separated them by sending Mr Zizas upstairs to bed. He said that Mr Zizas had been drinking for days and needed the rest. Mr Zizas complied with the offender's suggestion.
4. The offender and Mr Jones continued their revelry. Suddenly Mr Jones jumped up from the table threatening to confront Mr Zizas and heading in the direction of the stairs. The offender quickly got up blocking his path. Maintaining his resolve Mr Jones pulled a knife, apparently a flick knife. Exposing the blade, he lunged at the offender who believed that Mr Jones was trying to kill him to clear the way to Mr Zizas.
5. The offender grabbed Mr Jones's wrists pushing the knife away, with Mr Jones trying to push it back at the offender. During this struggle as the offender pushed it away, the knife came into contact with, and may have penetrated Mr Jones's polo shirt. This is significant because upon forensic examination of his skeletal remains, there was evidence of contact between a sharp instrument and the upper portion of Mr Jones's sternum. This was consistent with a shallow stab wound, but any stabbing injury responsible for it did not penetrate the sternum into the thoracic cavity. It could not be said to have caused or contributed to Mr Jones's death.
6. Eventually, the deceased dropped the knife. The offender, who had been taught to use his hands from an early age (T9.31) released his grip and immediately punched Mr Jones "in the head hard" (T9.28) expecting him to go down, "but he didn't" (T9.30). Mr Jones came back at him and they commenced trading blows, punching each other hard. Somewhat like the fight scene from an old western, the conflict moved from the dining room where it had commenced into the lounge room with the men "throwing blows" (T9.33) at each other and attempting to grapple with one another.
7. Clearly a veteran of previous punch-ups, the offender, somewhat philosophically observed, "fights really don't go on for that long, you know. It might seem they do but they don't" (T9.42-3). The offender sensed that Mr Jones was beginning to flag so he "jumped into him again … throwing punches pretty fast, hitting him in the body and head" (T9.45-6). Throwing "[a] left hook" (T10.9) he succeeded in knocking Mr Jones down causing him to fall onto a coffee table. He was then asked "what happened after he went down?" and said at T10.14: "Well I probably went overboard, I leant down and I hit him another three more times and I - he was down, but I wanted to make sure he didn't get up and start this shit again, you know". When he had fallen, Mr Jones was moving a little, but when the offender stood up from delivering the additional blows "he wasn't moving" (T10.20).
8. The offender left Mr Jones where he was and resumed his drinking in the other room, falling into a stupor. Later, how much later is not known, he was roused by loud knocking on the front door. He went to the door, opened it, and admitted his friend, Joe Mules. Mr Mules apparently noticed cuts and abrasions about the offender's face and asked what happened. The offender explained and Mr Mules went into the other room to investigate. Returning he said: "[Mr Jones] is dead" (T11.50). The offender said, "no, no, what are you talking about?" In evidence he said "I couldn't believe it, you know" (T11.43-44). Checking for himself, he saw Mr Jones still lying on the coffee table with vomit on his face and mouth (T11.49).
9. When cross-examined the offender said that the reason he started to punch him after Mr Jones dropped the knife was, "I didn't want him to do anything further" (T21.8). He said he delivered the additional punches when Mr Jones was down "so he wouldn't be a threat to me" (T24.48). He denied that he wanted to cause Mr Jones "serious injury at that time" (T24.50). The additional blows were delivered with his right hand to the top of Mr Jones's head. After dealing with Mr Jones, he threw the knife in the garbage bin in the backyard.
10. Although the offender denied punching Mr Jones with the specific intent of causing him really serious injury, I do not regard this evidence as inconsistent with his plea. I infer from: his stated intention of wishing to knock Mr Jones down so he would no longer pose a threat; the nature of his actions, particularly the force with which he delivered his punches; and going on with them after Mr Jones went down, that he did intend to disable him from further presenting a threat. I am satisfied beyond reasonable doubt that this intention, his specific intent, at the time he delivered these blows was an intention to cause Mr Jones grievous bodily harm.
11. Although there is no expert evidence to this effect, when one considers the whole of the circumstances established by the evidence, the only rational inference available from them is that the hard blows delivered to Mr Jones's head, most particularly, the three blows delivered when he was apparently down and out, caused a closed head injury from which he died. It's not possible to make any firm finding to the criminal standard of proof about the precise mechanism of death. That is unnecessary given that the plea of guilty to manslaughter is a conclusive admission of all necessary elements of the offence including an admission by the offender that his acts caused Mr Jones's death. Given, however, the evidence about the vomit on Mr Jones's face, one probability is that he vomited because of the effects of the head injury and being unconscious and unable to act in self-preservation he was asphyxiated by his own vomit.
12. I will interrupt my narrative at this point to deal with the question of the objective seriousness of the manslaughter offending. I will then deal with the circumstances relating to the second count.

Objective seriousness

1. The agreed category of manslaughter, as I have said, is manslaughter by excessive self-defence. When sentencing, a court is always obliged to make an assessment of the objective seriousness of the offending, having regard to its objective circumstances without regard to factors personal to the offender which may have a mitigatory effect. This is because although a decision about the appropriate sentence for the offence and the offender depends upon the bringing together of all of the facts, matters and circumstances relevant to the task in an instinctive synthesis, it remains important that the sentence passed be proportionate to the seriousness of the crime. Although it would seem that objective seriousness is a relevant factor different from moral culpability (see Muldrock v The Queen [2011] HCA 39, (2011) 244 CLR 120; The Queen v Kilic [2016] HCA 48), most frequently judges refer to the judgment of Gleeson CJ in R v Blacklidge (unreported, 12 December 1995, NSWCCA) where his Honour said: "It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, it is not possible to point to any established tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability."
2. It is not the category of manslaughter that is significant in the assessment of objective seriousness, rather "each case depends upon its own circumstances": R v Isaacs (1997) 41 NSWLR 374 at 381; R v Hoerler (2004) 147 A Crim R 520 at 528 [29]. As manslaughter is a form of homicide, the taking of a life of another is an element of the offence. Even so, "[the taking of life] is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case": R v Blacklidge per Gleeson CJ. This has been expressed another way: R v Dawes [2004] NSWCCA 363 at [31] by Dunford J: "Manslaughter, whatever form it takes, constitutes unlawful homicide. It is always a most serious offence as it involves the taking of another human life and it is the responsibility of the courts to protect and preserve human life and to punish those who unlawfully take it. All human life is to be protected including that of the disabled, the handicapped, the criminal, the derelict and the friendless". The assessment of objective criminality of an instance of manslaughter depends upon its own facts rather than the legal basis for the attribution of legal responsibility in a given case.
3. It must always be borne in mind, however, that the assessment of the objective seriousness of the offending is only one of the various complex and often conflicting circumstances that must be assessed or evaluated to arrive at the appropriate sentence for the offence and the offender.
4. In the case at hand, it is necessary to determine the extent to which the actions of the offender, which caused Mr Jones's death and were initially undertaken by him to defend Mr Zizas and himself, were excessive. This requires brief consideration of the elements of manslaughter by excessive self-defence.
5. Self-defence is the legal justification for conduct which in the circumstances would otherwise constitute an offence. Exceptionally, in the case of murder, self-defence may be either a complete or a partial defence. Here, by his plea (and the Crown's acceptance of it) the applicant is entitled only to the benefit of the partial defence reducing what would otherwise be murder to manslaughter. For this purpose, and by reference to the plea and the other evidence before me, I am satisfied beyond reasonable doubt that the blows struck by the offender, which caused Mr Jones's death, were delivered with the intent to cause really serious bodily injury and in the belief that it was necessary for the offender to do what he did in the circumstances as he perceived them to be to defend himself and Mr Zizas from Mr Jones. I am not satisfied beyond reasonable doubt that all of his conduct was a reasonable response in the circumstances as the offender perceived them. To put it more accurately, I am satisfied beyond reasonable doubt that some of his conduct was not a reasonable response in the circumstances as the offender perceived them.
6. Given the way the fight between the offender and Mr Jones developed, there is a question in this case of the point at which the offender's conduct ceased to be a reasonable response, even in the circumstances as he perceived them. This question would not arise in every case. In many, if not most cases, the whole of an offender's response may be adjudged to be unreasonable. Here, however, it could not be said that grabbing the wrists of a person who had lunged at him with a knife and continuing to struggle with him was not a reasonable response to the threat that the offender perceived.
7. The Crown says that I should be satisfied beyond reasonable doubt that the offender's conduct ceased to be a reasonable response when Mr Jones dropped the knife and that the whole of the offender's conduct from that point on was unreasonable.
8. Mr Young submits, accepting as he must that at some point the offender's conduct became unreasonable in the circumstances as he perceived them, that that point was not reached until the left hook which felled Mr Jones. Mr Young argues that it was only the three blows struck while the offender stood over the supine Mr Jones that were not a reasonable response. At that point he was down, had ceased offering violence, and no longer posed a threat.
9. The assessment of objective seriousness of an instance of manslaughter by excessive self-defence involves "an evaluation of the degree to which the response exceeds that which would be a reasonable response" in the circumstances as the offender perceives them: Smith v R [2015] NSWCCA 193 at [58] per Simpson JA (Leeming JA and Hamill J agreeing). The circumstances as the offender perceived them, on the evidence before me, are that Mr Jones had a drunken grievance against the offender's disabled friend, which he intended to settle by the infliction of physical violence. He was determined to act upon that intention to the point of stabbing the offender with his flick knife to get past him; even when disarmed, Mr Jones did not desist, but continued to fight the offender, punching him hard and grappling with him; and throughout this struggle, the offender believed it was necessary to knock Mr Jones down to neutralise the serious threat he presented to the offender and Mr Zizas.
10. Bearing these considerations in mind, I do not accept the Crown's argument that from the point when the deceased dropped the knife, the offender's conduct was not a reasonable response. Obviously a man who has dropped a knife may attempt to regain possession of it. And when the offender attempted to stop Mr Jones in his tracks by knocking him down, he fought back, initially strongly and adeptly. I accept that Mr Jones continued to present as a threat and it was reasonable for the offender to defend himself from Mr Jones's counter attack. I am also of the view that the Crown have not established beyond reasonable doubt that the offender's conduct became unreasonable when Mr Jones first started to flag; after all he continued to fight and a person who appears to be flagging may yet revive. I am not satisfied beyond reasonable doubt that continuing to fight through this phase was not a reasonable response in the circumstances as the offender perceived them. I am not satisfied that it was unnecessary for the offender to bring the fight to an end by delivering the left hook that finally knocked Mr Jones down. Although both these men were in their sixties, on the evidence neither was a shrinking violet and neither was prepared to take a backward step once battle had been joined. I am not satisfied beyond reasonable doubt that delivering the left hook was not reasonable in the circumstances as the offender perceived them.
11. I am satisfied, however, that delivering those three forceful additional punches to the top of Mr Jones's head when he was clearly down and at least virtually out was not a reasonable response in the circumstances as the offender perceived them to be. In his own words, he "probably went overboard" (T10.14). Given that it was those blows that rendered Mr Jones not only down, but also completely out, I am satisfied, despite the absence of expert evidence, that on their own those blows made a material contribution to Mr Jones's death. While it's difficult to say, probably the cumulative effect of the various blows delivered to his head caused his death.
12. Evaluating the offender's conduct including his use of force throughout, it can be said that the period during which that force was not a reasonable response was short. It involved the infliction of only the final three blows of the many blows delivered during the fight. It was delivered, however, when Mr Jones was down and therefore vulnerable and completely unable to protect himself. That violence was unnecessary, gratuitous and borne of anger ("I probably went overboard"). However, those blows were entirely spontaneous, not at all premeditated and not part of an ongoing course of criminal conduct. The previous blows were delivered with lawful justification, on the findings I have made. Moreover, the offender was unarmed and it was Mr Jones who had had the knife.
13. Looked at in this way, I would assess the objective seriousness of this case of manslaughter as being in the low to mid-range of the spectrum.

Objective seriousness of the second count

1. The second count is expressed in the following terms: "On or about 11 June 2009, at Lilyvale and elsewhere in the State of New South Wales, [the offender] did wilfully dispose of the dead body of Lynn Tasman Jones, he having died a violent death, before the Coroner had had an opportunity of holding an inquest upon the dead body". This is a common law offence and the maximum penalty, as it is put, is at large. It is worth pointing out that Mr Jones's death was a "reportable death" within the meaning of s 6 Coroners Act 2009 (NSW) because it was a violent death: s 6(1)(a). Under s 35(2) Coroners Act, all persons having "reasonable grounds to believe that a death … is a reportable death … must report the death … to a police officer, a coroner or an assistant coroner". Clearly, this obligation fell upon the offender. While the Coroner's jurisdiction does not depend upon the receipt of a report of death (s 20 Coroners Act), a Coroner has jurisdiction to hold an inquest concerning reportable deaths (s 21 Coroners Act).
2. This common law offence was discussed by the Court of Criminal Appeal in R v Davis (1942) 42 SR (NSW) 263 by Jordan CJ. Having made observations about the importance of the coronial investigation of reportable deaths for the determination of the cause and manner of death, his Honour emphasised the importance in turn to coronial investigation of post-mortem examination. His Honour said (at 264): "[i]f the body is concealed until it has been damaged by the natural processes of decay the Coroner is necessarily hampered in his investigations". His Honour went on to say at 265 - 266: "Such conduct is an offence because it causes public mischief by its tendency to obstruct the course of justice … Public mischief of this type is always a serious matter; but the degree of seriousness of any individual case depends upon its facts. Interference with a dead body as to which an inquest was in project or in the course of being held, if prompted only by a foolish and malicious desire to play a practical joke on the Coroner or by a callous and selfish hope of shirking trouble or avoiding publicity, might well be regarded as less heinous than the concealment of a dead body coupled with the adoption of methods of concealment which show that the object was not only to conceal the fact of death but to destroy evidence of its cause." For reasons I will explain, the present case falls into the category where the steps taken to dispose of Mr Jones's body suggest that the object here was to conceal the fact of death. There is nothing about the method of concealment which suggests any particular attempt was made "to destroy evidence of its cause."
3. The essential facts are that when Mr Mules realised that Mr Jones was dead, he drew that circumstance to the attention of the offender and he managed to convey a sense of panic to him by saying "[W]hat are you going to do? What are you going to do?" (T12.6-7). The offender replied, "It was just a fight" (T12.7). But Mr Mules went on saying "you are going to get yourself in a lot of trouble" (T12.9) and suggested moving the body with which suggestion the offender agreed. I interpolate apparently the judgment of both was greatly affected by drink (12.30T). Mr Jones's body was manhandled into the back of Mr Mules's station wagon and driven to the remote location on Lady Wakehurst Drive in the Royal National Park, a distance of more than 50 kilometres from Millers Point. The photographs and other material tendered demonstrate that the location was in dense bushland. Although the site was only about 10 metres from the road, it was down a steep embankment. I infer that some attempts were made to bury the body but this seems to have consisted of covering it with loose dirt, leaf debris and the like. The object was obviously concealment.
4. As I have already pointed out, it was four years and three months before Mr Jones's remains were located. Bushwalkers happened upon the skull in a creek bed. It had apparently separated by some means from the rest of Mr Jones's skeleton. Those citizens reported the matter to police, who attended the scene. The area was thought to be close to an ancient Aboriginal burial ground and it was sought to exclude the possibility that the skull represented the remains of an Aboriginal Australian. A forensic anthropologist excluded that possibility and determined that the skull was that of a Caucasian male in his sixties who had died sometime between two and ten years earlier.
5. A co-ordinated search was conducted two days later when police were able to locate the remainder of Mr Jones's skeletal remains, a distance of about 30 metres from the dry creek bed. It was not until 7 December 2013 that the skeletal remains were identified as those of the deceased.
6. There is other evidence of attempts to conceal the fact of Mr Jones's death. These matters are uncharged acts, but they are accepted by both counsel as being relevant. Mr Young submits that they are relevant to the manslaughter count. Conventionally such matters may be regarded as circumstances of aggravation. However, I accept the learned Crown Prosecutor's argument that in this case they are more logically treated as evidence bearing on the second count because they tend to prove that the offender's purpose was to conceal the fact of death. Strictly that is not an element of the common law offence as a consideration of the terms of the averment demonstrates. However, given the analysis of Jordan CJ, an intention to conceal the fact of death or to destroy evidence of its cause is, or may be, in each case, an aggravating circumstance. The other agreed facts I am about to relate are suggestive at least of an attempt to conceal the fact of death, even if they do not go so far as suggesting destruction of evidence of its cause. In using this language, I have not overlooked that aggravating circumstances must be proved by the Crown beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270. The other circumstances are disposing of Mr Jones's car in which he had driven from his home in Waverley to Millers Point. This work was done through the agency of Mr Mules. The car was apparently towed to an unknown location and burned out. The police investigation had uncovered these facts by May 2013 at the latest. During this investigation police also ascertained that a parking ticket had been issued by the Local Council in respect of the car whilst it was parked opposite the Millers Point premises. In the modern way, the parking ranger took a photograph, which depicted this location.
7. The police investigation also uncovered that the offender had been instrumental in procuring the payment of the parking ticket through another associate. Ironically, payment of the ticket added to suspicion of foul play, for the police investigation indicated that Mr Jones did not punctiliously pay parking tickets during his lifetime. Relatively prompt payment of the ticket written on 11 June 2009, as I have said, was out of character and raised suspicions about the circumstances of his disappearance.
8. I am of the view that the objective seriousness of the second count offending is within the mid-range for offending of this type.

Other relevant circumstances

1. The offender was born 20 February 1946. He was 63 at the date of offending, 69 at the date of arrest, and now 71. He has been married twice and involved in a third permanent relationship; he has six children and a number of grandchildren with whom he enjoyed a close relationship of mutual love and support.
2. After leaving school he worked in the building industry, although at the time of his arrest he was said to have been on a pension for many years. It has to be said that the offender has a bad previous criminal record commencing as a juvenile at age 15 and continuing, prior to these matters, until his release on parole on 2 September 1999 following conviction for a second armed robbery offence. The balance of that term expired on 1 September 2002. There is no suggestion of any other offending during the 6 years that he was at liberty prior to his arrest for this offence. Leaving this serious offending aside, there has been no other offending during the 16 years he was at liberty after September 1999.
3. However, the offender's previous record is that of a career criminal. Most of his offending involved property offences. There is one street fighting offence in 1976 for which he was fined and an assault in 1978 for which he was bound over to be of good behaviour for three years. He has been imprisoned a number of times including for armed robbery in 1983 and again in 1992. That second armed robbery occurred in 1990. He appears to have been on parole for the earlier armed robberies at the time of the commission of the 1990 armed robbery. This record is certainly suggestive of a pattern of disregard for the law for most of his life and might be said to disentitle the offender to leniency, even if he seems to have retired from his previous life of crime upon his release to parole in 1999.
4. Perhaps surprisingly given the time he has spent in prison, there is no evidence of him having committed breaches of prison discipline while in custody.
5. As I have said, the offender offered to plead guilty to manslaughter in the Local Court at a time before he was committed for trial. It is well recognised that an offer of a plea rejected by the Crown, which is either later accepted or consistent with a jury's verdict can result in a discount even though there is no utilitarian value: R v Oinonen [1999] NSWCCA 310; R v Bryan Steven Johnson [2003] NSWCCA 129; R v Borkowski (2009) 195 A Crim R 1 at [32]. It should be recorded that the offer to plead was proffered in the face of a strong, albeit circumstantial, Crown case. Even so, had the offer been accepted when first made, the utilitarian value of the plea would have been high. I think it appropriate to allow a 25 per cent discount in respect of the sentence for each offence. I am also prepared to accept that the offer to plead also reflects a willingness to facilitate the course of justice.
6. Although it is disputed, I accept that there is some evidence of remorse. He told his ex-partner that the offending weighed heavily on him "like an old army overcoat over me back soaking wet".
7. In her affidavit read in the proceedings, his eldest daughter, a respectable woman of mature years said this offending concerns her father and "weighs heavily on his mind" (affidavit [22]). I interpolate that she also says that her father enjoyed good health for his years. In sworn testimony before me the offender said he felt terrible about the fact that Mr Jones died (T14.39). Although in explaining his thoughts about the matter, there was a degree of self-justification in as much as he said (T14.48-50): "…when I look back … [I] never thought [Mr Jones] was like that for one, you know, … because he came up in the same era I came up when you were taught to defend yourself with your hands, nothing else …" This I understood to be an expression of surprise that Mr Jones came at him with a knife. At the same time, he said that he knew what he had done and he had done the wrong thing (T14.46-7). I accept that in his own gruff way, the offender was expressing remorse for his offending.
8. Given this remorse, his age, and the decline of his criminal career, I am not persuaded this is a case where the element of protection of the public figures large in the circumstances informing the length of the sentence. For the same reasons, I think it unlikely he will offend again, even if complete reformation of character is unlikely at his age.

Other principles

1. Before passing sentence, I think it important to mention some other principles. The offender has been in custody since 17 July 2015 for this offending alone. The sentence should be backdated to that date. It goes without saying that for offending of this seriousness no punishment other than a term of full time imprisonment is appropriate. Given that the offences are closely related and indeed part and parcel of the same criminal episode there needs to be a degree of concurrency factored in to the structure of the sentences. Other than the need to maintain the statutory ratio between the non-parole period and the additional term in circumstances where two sentences will be partially accumulated, there are no special circumstances.

The sentence for count 2

1. I will deal with count 2 first. As I have said, count 2 is a common law offence and the penalty is at large. Being at large means that there is no limit in law to the term of imprisonment which might be imposed: R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280 at 292; R v White (1875) 13 S.C.R. 339 at 341, 343-4; Blackstock v R [2013] NSWCCA 172 at [10] - [11]; Jansen v R [2013] NSWCCA 301 at [51] - [52]. The usual practice of the Court, however, is to adopt where available, a statutory analogue as a "reference point" (Jaturawong v R [2011] NSWCCA 168 at [5]) for the imposition of the penalty. This practice is related to the principle of proportionality, one of the pillars of the law of sentencing. Having regard to the nature of the criminality involved, as explained by Jordan CJ in R v Davis, one or other of the offences in Part 7 of the Crimes Act 1900 (NSW) dealing with public justice offences may provide an appropriate analogue. For instance, hindering the investigation of a crime committed by another under s 315 carries a maximum penalty of 7 years' imprisonment. Under s 316 concealing the commission of a serious indictable offence, again by another, carries a maximum term of imprisonment of 2 years. Where the concealment is for reward, the maximum is 5 years. Under s 319, the general offence of perverting the course of justice, which is defined to extend to the administration of the law, carries a maximum penalty of imprisonment of 14 years. The count 2 offending probably has more in common with hindering an investigation or concealing a serious indictable offence than with the offence of perverting the course of justice generally. This suggests that a reference point of between 5 and 7 years for offending of the worst class in this category would be appropriate.
2. The offending is ameliorated to some extent by the plea of guilty and by the consideration that the offender has now given an apparently full account of what happened. At the same time, offending of this type requires denunciation and general deterrence to be brought to bear. However, of course, the offender is entitled to the discount of 25 per cent to which I have referred.
3. Counsel have not been able to come up with a body of like cases. In Davis the offender was acquitted by the verdict of the jury of both the murder and manslaughter of his de facto partner on the basis that he was defending their children from her. Even so, he was sentenced to a term of imprisonment of 4 years. It needs to be borne in mind that in the 1940s there was no requirement for a judge to fix both a non-parole period and an additional term. So this should be taken to be the total term of imprisonment. A single previous instance cannot provide a useful yardstick.
4. I propose to partially accumulate the sentence for manslaughter on the sentence for count 2 and for this reason I will impose a fixed term of imprisonment which should be taken to represent the minimum time justice requires the offender to spend in custody for count 2. But for the plea of guilty, I would have imposed a fixed term of imprisonment of 2 years and 8 months for this offending. Given the plea, I propose to impose a fixed term of imprisonment of 2 years commencing on 17 July 2015.

The sentence for manslaughter

1. As I have already said, in sentencing for manslaughter vindication of the life of the victim is always of primary importance. For this reason, denunciation is called for even in a case like the present where looking at all of the circumstances of the offending there is a degree of justification provided by the consideration that the offender was acting in self-defence. However, he did go overboard. Notwithstanding that the time was short and the blows few, their contribution to death was significant.
2. Counsel have provided me with a number of cases of manslaughter by excessive self-defence in which terms of imprisonment of varying lengths have been imposed. There was a broad range from a total term of 5 years and 6 months (R v Hamilton; R v Sandilands [2007] NSWSC 452) to a total of 12 years (R v Misiepo [2016] NSWSC 565).
3. I bear in mind it is not helpful to attempt to categorise cases of manslaughter. Moreover, as manslaughter is recognised to be a protean offence, the usual limited utility of comparable sentences is further attenuated. Despite their limited utility, paradoxically it is necessary that regard be had to the comparable sentences as a yardstick against which the sentence to be passed in the present case may be gauged. Past cases do not furnish a range. The only relevant range is the range provided for by Parliament. Here Parliament has prescribed the maximum penalty of 25 years and this is an important guidepost in the process of fixing a sentence.
4. I bear in mind that each of the cases counsel drew to my attention involved the use of a weapon to inflict the fatal injuries, even if the weapon was a tree branch (R v Smith [2011] NSWCCA 110). That factor is absent in the circumstances of the present case. Its absence is one factor which has caused me to make a lesser assessment of objective seriousness than might otherwise have been appropriate. The offender's subjective case is not compelling but there are some positive features to which I have made reference and which I have taken into account.
5. But for the timely offer to plead guilty, I would have imposed a term of imprisonment of 10 years, which I will reduce to 7 years and 6 months to take account of the plea. To give effect to what I have said about the need for partial accumulation, I would commence this sentence on 17 July 2016.
6. The total effective sentence therefore is one of 8 years and 6 months which will expire on 16 January 2024. For the purpose of preserving the statutory ratio over the two sentences, more or less, I will impose a non-parole period of 5 years and 4 months for the manslaughter of Mr Jones. The effective non-parole period after partial accumulation is 6 years and 4 months.
7. The non-parole period of a sentence is the minimum time which justice requires the offender to remain in full-time custody. However, it should not be assumed by anyone, least of all the offender, that release at the expiration of the non-parole period is either automatic or a foregone conclusion. Release when an offender is first eligible for parole depends on the independent decision of the State Parole Authority.
8. The manslaughter of Mr Jones is a serious violence offence to which the Crimes (High Risk Offenders) Act 2006 (NSW) applies and I am required by law to warn the offender that the provisions of that Act may make him liable to extended detention or supervision after the expiration of the sentences I will impose.
9. The offender is sentenced as follows: 1. For count 2 on the indictment, the offender is sentenced to a fixed term of imprisonment of 2 years' duration commencing on 17 July 2015 and expiring on 16 July 2017; 2. For count 1 on the indictment, the manslaughter of Mr Jones, the offender is sentenced to a term of imprisonment of 7 years and 6 months, having a non-parole period of 5 years and 4 months commencing on 17 July 2016 and expiring on 16 November 2021 with an additional term of 2 years and 2 months commencing on 17 November 2021 and expiring on 16 January 2024. The offender will first be eligible for release on parole after the expiration of the non-parole period for count 1 on 16 November 2021.

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: 22 June 2017