Objective criminality
45 It is now necessary to come to a conclusion in relation to the objective seriousness and the degree of culpability involved in the commission of the offence of manslaughter in the present circumstances.
46 The starting point is that the death of a human being by any unlawful killing is one of the gravest offences against an ordered society: R v Bolt [2001] NSWCCA 487; (2001) 126 A Crim R 284 at 293. It is the responsibility of the Courts to protect and preserve human life and to punish those who unlawfully take it: R v Dawes [2004] NSWCCA 363 at [31].
47 But, as was observed by Gleeson CJ, McHugh, Gummow and Hayne JJ in R v Lavender [2005] HCA 37 at [22] of all serious offences, manslaughter attracts the widest range of possible sentences. That is because, as Gleeson CJ said in R v Blacklidge (unreported - NSWCCA - 12 December 1995) manslaughter comprehends all forms of punishable homicide other than murder, and includes causing death where there was an intent to inflict grievous bodily harm or with reckless indifference to life, and also other forms of manslaughter sometimes called "involuntary" which may be constituted by death caused by an unlawful and dangerous act. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
48 In the present case, the offender's plea to manslaughter was accepted on the basis that there was excessive self-defence involved in the killing of the deceased. Additionally, the Crown accepts that there was an element of provocation involved in all the circumstances. As Adams J said in R v Hamilton; R v Sandilands [2007] NSWSC 452 at [32]:
In circumstances where there is a genuine belief that the acts of violence committed by an offender are necessary in self-defence, even though, objectively speaking, they were more violent than was reasonably called for, the moral culpability involved places the crime well and truly in the lower range of seriousness.
49 The issue that needs to be decided is the proper basis for the manslaughter conviction. The Crown submitted that I should find that the offender intended at least to cause grievous bodily harm to the deceased. Mr Campbell submitted that it was manslaughter by an unlawful and dangerous act in circumstances where there was an unreasonable exercise of force in response to a perceived risk.
50 I cannot be satisfied beyond reasonable doubt that the offender intended to inflict grievous bodily harm on the deceased. There is no doubt that excessive force was used. At the time that the offender had the knife in his hand the deceased was unarmed. Moreover, if the offender was still in fear of his safety he could at least have called his brother and/or Ms Toohey for assistance, or even backed away whilst threatening the deceased with the knife.
51 Nevertheless, in circumstances where the offender had already been stabbed on 3 occasions, where he pulled the knife out of his own shoulder, where he stabbed the deceased only once, and where the Crown accepts that there is an element of provocation involved, there is not sufficient evidence to find beyond reasonable doubt that the offender intended to inflict grievous bodily harm. Rather, I find that the death of the deceased was occasioned by an unlawful and dangerous act, being the single stab wound inflicted by the offender.
52 The Crown submits that the offence is not at the bottom of the range of offences of this type but is somewhere between the bottom and mid-range level of gravity. In my opinion, in the circumstances that I have described, including the fact that it was the deceased who brought the knife to the scene and where the offender inflicted only one stab wound after he himself had been stabbed 3 times by the deceased, it seems to me that the offence falls at the bottom of the range of offences of this type. I am strengthened in that view by a similar assessment of Fullerton J in R v King [2007] NSWSC 1134 at [23]-[24] and Adams J in R v Hamilton at [32] in somewhat similar circumstances.
53 In this regard, consideration must be given to the matter of the disappearance of the deceased's car keys. That gives rise to the question whether post-offence events may be taken into account in assessing the objective seriousness of the crime itself. Johnson J had occasion to discuss this issue in R v Wilkinson (No 5) [2009] NSWSC 432 in circumstances where a person who pleaded guilty to murder not only refused to say where he had disposed of the deceased's body but made false statements to the Police about where the body was to be found. Johnson J said this:
[61] … [T]he circumstances of an offence are not neatly marked out by two lines, one at the technical beginning and the other at the technical end of the crime: Director of Public Prosecutions v England [1999] 2 VR 258 at 263 [18]. Common sense and moral sense extend the circumstances of an offence which may be considered for an assessment of the objective seriousness of a crime, to events which precede and follow the technical limits of the crime. In imposing sentence for a crime, a judge should take into account not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime, and are properly to be regarded as circumstances of aggravation or mitigation: Director of Public Prosecutions v England at 263-264 [18]. The dumping of a body by a murderer constitutes an aggravating circumstance of the offence itself, and such concealment of the body is not limited in its significance to the absence of remorse: Director of Public Prosecutions v England at 266 [27]; Bell v R [2003] WASCA 216 at [23]-[25]; Colledge v State of Western Australia [2007] WASCA 211 at [16]; R v Cavkic (No. 2) [2009] VSCA 43 at [134].