R v Stephen John Boyd

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

REMARKS ON SENTENCE 1 HIS HONOUR: On 4 April 2003 Stephen John Boyd (the offender) was arraigned before Barr J upon a charge that he murdered Rodney Colin Flesser at Queanbeyan on 10 January 2002. He pleaded not guilty to murder but guilty to manslaughter. The Crown accepted that plea in full satisfaction of the indictment. It did so on the basis that the killing of the deceased was committed in circumstances in which the offender used excessive force in self-defence within the meaning of s 421 of the Crimes Act 1900 (NSW). 2 The relevant facts in this matter are set out in the Crown case statement. As it is common ground that it accurately sets out the way in which the Crown put its case against the offender, it is convenient to set it out in full: Both the accused, Stephen Boyd, born 19.8.64 and the victim, Rodney Flesser, born 8.2.64 resided in adjacent rooms on the second floor of the Hotel Queanbeyan, 59 Crawford Street, Queanbeyan. Mr Flesser had been a resident, on and off, at the hotel for approximately 10 years. Prior to 10 January 2002 Mr Boyd had only resided at the hotel for about 6 weeks.

On the afternoon of Thursday 10 January 2002, Michael Sedgewick and Adam James saw Mr Flesser and Mr Boyd drinking port and listening to music in Mr Boyd's room number 65. Sedgewick and James had a brief conversation with the two of them before leaving the hotel.

About 5pm, other residents of the hotel heard a heated argument taking place in Mr Boyd's room. One of the residents, David Parker, identified one of the voices involved in the argument as that of Mr Flesser. Mr Parker had been a resident of the hotel for about 12 months and knew Mr Flesser. Another resident, Peter Tough also heard the argument and recognised the voice of Mr Boyd. Mr Tough went downstairs to the bar area and spoke to a hotel employee about the argument taking place upstairs.

The publican, Michael Thorn, went up to the second floor and saw Mr Flesser bleeding and lying on the floor of the hallway near his room. He also noticed blood on the hallway walls. At this time Mr Boyd emerged from his room and stood in the doorway. Mr Thorn asked Mr Boyd what had happened and he replied that he did not know. Mr Thorn said "obviously you have been fighting, pack your bags and fuck off". Mr Boyd became aggressive. Mr Thorn said he didn't want any more trouble or he would call the police. Mr Boyd then said "I will go you too". Mr Thorn summoned help from his brother-in-law Mr Thompson. Mr Boyd became aggressive when Mr Thompson arrived and told Mr Boyd not to leave. Mr Boyd was restrained by Mr Thompson when he tried to leave. Mr Boyd then calmed down. Mr Thorn asked him what he used to stab Mr Flesser. Mr Boyd replied " I didn't, I just drove my fist in". At some stage Mr Boyd said " I got picked on and belted up at school all the time and I wasn't going to take it again with Rod (Mr Flesser) coming into my room in a rage. "

Police and Ambulance were called and when the police arrived they had to restrain Mr Boyd as he attempted to leave the hotel. Mr Flesser subsequently died at the scene despite receiving treatment by ambulance paramedics upon their attendance. Multiple stab wounds were later established as being the cause of death.

Police later located a large carving knife in Mr Boyd's room. The blade of this knife was bent. Blood was located in Mr Boyd's bedroom, Mr Flesser's bedroom, and on the hallway wall between the two rooms. Detective Sergeant Callister, a bloodstain pattern expert, examined the blood splatters and formed the opinion that the victim was stabbed in Mr Boyd's bedroom. The victim then went into his own room number 64 before he went back out into the hallway where he subsequently died.

The circumstances in which the stabbing occurred are not known precisely. There was a heated argument, after, or during which, Mr Flesser was stabbed many times in Mr Boyd's room. The condition of the room, injuries to Mr Flesser's fists and injuries to Mr Boyd's face indicate there was an altercation of some kind.

There is evidence from various witnesses who heard Mr Boyd make comments after the stabbing upon which Mr Boyd relies in support of his belief that his conduct was necessary to defend himself. Some comments indicate Mr Boyd's agitated state of mind at that time.

Mr Parker, who found Mr Flesser and tried to save his life, heard Mr Boyd say to him "Do you want to be next bastard, yeah you want to be next".

Mr Jones saw Mr Boyd in police custody at the hotel and heard him say "Fucking murder (as if to say I can't believe it) fuck him, fuck him".

To Constables Wade and Harrison, Mr Boyd said "The cunt started hitting me, the cunt is in the fucking head" (sic). When Constable Wade asked what had been going on Mr Boyd said "I wasn't letting him lay into me ". Mr Boyd was told he was under arrest for assault and then became agitated and yelled "C'mon then fucking arrest me, go on. Fucking arrest me, you're going to anyway". Mr Boyd was then handcuffed and when cautioned said " Get fucked read me my rights, he attacked me. I was sitting listening to my CDs ". He further added 'Yeah, what would you do if he kept hitting you ". Mr Boyd was asked what happened and replied "I was sitting in me room, he came in, and just started laying into me, hitting me. I was listening to me CDs . "Mr Boyd was asked "What did you hit him with". Mr Boyd replied " with nuthin, fuck me". Mr Boyd was asked "What did you stab him with, what was it". Mr Boyd replied "I didn't stab him, fuck him. That blood on me jeans is his, not mine". Mr Boyd then said '"I wasn't taking any shit at all. I used to, look at the size of him would ya". Constable Wade said "Mate he's not going anywhere, what did you stab him with". Mr Boyd said "It wasn't a stab". Mr Boyd kept saying "I only punched him. What would you do if someone was going to bash you" Later when detectives arrived Mr Boyd asked "Is he okay". Detective Sergeant Kay said " No, he's dead". Mr Boyd said "I should've just put my fist through him and put him in a coma for 6 months".

Mr Boyd said to Senior Constable Darnell " He shouldn't have said anything. I wouldn't take that shit from my mother, I'll be fucked if I'll let any person bash the shit out of me, I won't take that from any cunt, I don't care how good they think they are. Fuck him, fuck the world. I don't care if I'm going to gaol, he fuckin deserved it. Write that in your book (Senior Constable Darnell was making notes in his official notebook as Mr Boyd spoke). Do you know Ron Cahill, the Chief Magistrate? I'll be going to gaol and you'll get your promotion " .

After Mr Boyd was arrested he was conveyed to Queanbeyan Police Station and later that evening was spoken to by the police. He declined to be formally interviewed about the stabbing and his decision not to be interviewed was recorded on an audio video cassette. Although he declined to be interviewed about the stabbing he told police during the recorded interview: "...nothing I can say is going to bring him back, I wish I fucken hadn't invited him into my room, if I hadn't invited him into my room it wouldn't have had to happen, and I never thought that I was capable of killing someone. I'm still just blown away. "

Mr Boyd was assessed when taken to Queanbeyan Police Station. Sergeant Ahearn was of the opinion Mr Boyd was moderately to well affected by intoxicating liquor at 6.08pm. He was agitated and heard to say " He's dead man, he's dead". Mr Boyd was noticed to have a small cut behind his right ear and when asked where he got that, said "From that cunt, the cunt on the floor. He punched me". Mr Boyd became more agitated, punching and kicking the dock walls. He was heard to say "Fucker Motherfucker. Why didn't he stay away from me". When told to relax he said "Relax. I just killed another human being and you're telling me to relax". Later Mr Boyd said " I should have fucken just bashed him senseless. Six moths (sic) gaol. Now this. Fucken 30 years".

Because of Mr Boyd's intoxication it was suggested to him he have a sleep before police spoke to him. His reply was "I'm not going to sleep. I just killed another human being. How am I supposed to sleep ".

Mr Flesser suffered from schizophrenia, for which he took medication. If Mr Flesser drank alcohol, it reacted with his medication and affected his behaviour. As a result the publican, Mr Thorn, banned him from drinking at the bar. Mr Flesser had a blood alcohol reading of 0.195 when he died. Mr Thorn considered Mr Flesser a very quiet person who kept to himself and had not been any trouble in the period exceeding a year preceding his death. 3 Absent exceptional circumstances, the acceptance of a plea in full discharge of an indictment is a decision which is solely within the province of the Crown. Nevertheless having read the entirety of the material with which I have been provided, it is apparent why the Crown was prepared to accept a plea to manslaughter in all the circumstances of the present case. Clearly enough, the deceased offered a measure of violence during the course of the confrontation which regrettably culminated in his death. By the same token the offender's plea recognises that his conduct was not a reasonable response in all the circumstances, notwithstanding the fact that the offender believed that his conduct was necessary in order to defend himself. 4 As the Statement of Facts makes clear "the circumstances in which the stabbing occurred are not known precisely". Moreover I did not have the benefit of hearing from the offender himself. Nevertheless the ferocity of the offender's response to the situation is readily apparent from the material which has been placed before me. In short, the offender caused the death of a man who was unarmed at the time by inflicting multiple stab wounds to his body. 5 I have received a victim impact statement from the deceased's mother. In it she details the impact which his death has had upon her and her family. She expresses her grief, anguish and sense of despair at having lost the son to whom she gave life. The feelings which she expresses are entirely understandable. I am aware of course that the effect of his death upon his relatives is not, for present purposes, a relevant consideration. See R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death. 6 I remind myself that I must proceed to sentence the offender against the background of the relevant statutory framework and in accordance with the principles enunciated in the relevant authorities. As I have said, the plea of guilty was entered on 4 April 2003. In those circumstances I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act 1999. That section, which is in the following terms, commenced operation on 1 February 2003: 3A . The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 7 I must also, in determining the appropriate sentence, have regard to the various aggravating factors which are set out in s 21A of that Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance. 8 It is also necessary to have regard to the maximum penalty which is prescribed by the legislature. In the case of manslaughter it is imprisonment for 25 years. See s 24 of the Crimes Act 1900. 9 Furthermore I must have regard to the particular principles that inform the sentencing task in a case such as the present. The starting point must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be punished. See R v Troja (CCA unreported 16 July 1991 at 2); R v McDonald (CCA unreported 12 December 1995). In R v Hill (1980) 3 A Crim R 397, Street CJ said: It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party. In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 401) 10 I must also weigh in the balance those matters upon which the offender is entitled to rely in order to mitigate the otherwise appropriate penalty. See s 21A(3) of the Crimes (Sentencing Procedure) Act 1999. 11 Evidence concerning the offender's background history is contained in a report of 17 May 2002 prepared by a forensic psychiatrist, Dr Lucas. In that respect I have also been assisted by a statement which the offender's mother provided to police together with the evidence which she gave at the committal hearing. That material reveals that the offender, who is now aged 39, grew up in country New South Wales as the third of five children. The family apparently moved around a lot because his father was an itinerant worker who moved from town to town in search of work. The offender left school after Year 10 and has in more recent times lived in Queanbeyan. His childhood was unhappy and he was the subject of frequent physical abuse from his parents. His father, who is a Torres Strait Islander, was reported by his mother to have been excessively violent both towards her and the offender. The violence inflicted upon the offender commenced when he was aged 2. His mother estimated that there were in excess of 100 such incidents. The police were frequently called. When he was aged 3, his father threw him into the shower. His father, who was frequently in gaol whilst he was growing up, was a chronic alcoholic. The offender has been, and remains, estranged from his father. 12 The offender reported to Dr Lucas that his mother was also violent towards him and that her violence led to his leaving home when he was aged 16. His mother only found out subsequently that one of his brothers had frequently goaded him so that he would get into trouble. His mother has had psychiatric problems of her own and has spent time in a psychiatric facility where she was apparently treated with electroconvulsive therapy. 13 The offender suffered from a number of ailments as a child, including sinus problems and ear infections. He also suffers from a substantial hearing impairment which was only discovered after he was expelled from school at an early age for destroying a classroom. He has hearing aids in both his ears to "improve his speech understanding". He has also learnt to lip read. 14 Dr Kenneth Howison performed an audiometry upon the offender. He provided a report which is in the following terms: On examination both tympanic membranes have some scarring present and a pure tone audiogram confirms him to have a severe bilateral sensori-neural deafness, more marked in the high frequencies. I would feel the most likely reason for this deafness is as a consequence of his mother's German measles during pregnancy. I carried out speech audiometry and confirmed that Mr Boyd has great difficult in understanding speech when he does not have his hearing aids. When he has the hearing aids functioning, then he is able to converse in a one-on-one situation. I would expect him, even with the use of hearing aids, to have difficulties in crowded situations. In summary, Mr Boyd has a severe bilateral high tone sensori-neural deafness, which I feel has been present since birth and is a complication of his mother's German Measles during pregnancy. For a large portion of his working life he was unable to afford a hearing aid and this would have caused him great inconvenience when attempting to understand speech. 15 The offender has a history of alcohol dependency having become a "problem drinker" at the age of 17. He was drinking heavily in the period leading up to the fatal incident. He also has a history of drug abuse, including in more recent times when he was taking amphetamines. It would appear that he has only worked intermittently, at least in recent years, although he was in full-time work for a period of years, initially in Canberra and then in Brisbane, after he left school. 16 The offender and his de facto wife raised four children together, one of whom was his step-daughter. He was devastated when his de facto wife left him in 1995. This meant that he had to look after the children on his own. He found very considerable difficulty in doing so and, as a result, the children were sent to foster homes. Ultimately, at the instigation of his mother, the children were placed in foster care with his sister. His mother was subsequently awarded custody of his son. The offender resented his mother's intervention in the dispute surrounding the custody of his children and this remained a source of continuing irritation to him. 17 In September 2001 the offender moved in with his mother. However shortly before Christmas she asked him to leave and arranged for him to stay at the Hotel Queanbeyan. She spoke to the offender on the night before the fatal incident and observed that he sounded agitated. She had also previously seen him behave violently when affected by alcohol. 18 A fellow resident of the hotel, Adam James, who had known the offender for a period of about 15 years, observed that he was extremely upset about the death, by drowning, of a fellow resident of the hotel a few weeks prior to the fatal incident. The offender had apparently formed a close relationship with this man and his family particularly after he had failed to gain access to his own children. 19 There are in evidence, three reports prepared by a psychiatrist, Dr Drew who saw the offender in 1995, 1997 and 2001 respectively. It would seem that he saw Dr Drew at least initially, at the request of the ACT Family Services, who wanted an opinion as to his capacity as a father. In the first of those reports, Dr Drew observed that the offender: "is of low normal intelligence…The origin of this deficit is uncertain and the importance of this deficit (in terms of his social capacities) is increased because of his chronic hearing deficit and his unfortunate childhood experiences. This deficit is important as a determining influence of his capacities. It is quite unreasonable to expect him to be able to provide adequate parenting, alone and unsupported, and if excessive demands are placed on him he is likely to react explosively out of frustration and a lack of alternatives. Also, because of this, he will have limited capacity to benefit from learning experiences." 20 In 1997 Dr Drew reported that little had changed. He observed that he "remains intellectually limited…and emotionally labile, responding more to external situations than normal. He has limited capacity to make good judgments, certainly those involving long-term planning, and could easily be taken advantage of by others. He admits to having drunk heavily at times because of his despair and hopelessness at ever being able to care for his children as a family unit and out of frustration at being let down by 'the system'." 21 In his latest report, Dr Drew concluded that the offender did not have a mental illness but suffered from "significant depression". He observed however that "psychological testing indicated that he had mild intellectual impairment which would limit his capacity in many ways. In particular he has a limited range of options to respond to stress." 22 Dr Lucas also formed the opinion that whilst the offender was not suffering from a psychiatric disorder at the time of the offence, he was nonetheless acutely intoxicated and likely to have been suffering from depression. 23 In a supplementary report of 18 June 2003, Dr Lucas, after having reviewed some of the background material, arrived at the following conclusions: It is probably fair to say that in the circumstances in which Mr Boyd was living, the problems of trying to deal with the difficult, annoying and confronting behaviour of the man who became his victim would have tested and provoked most people. Mr Boyd told me that at the end he was assaulted by Mr Flesser and during the struggle the stabbing occurred. When one takes into account Mr Boyd's family and personal history, his experience of abuse and, as he put it to me, his "extremely afunctional" childhood, his below average intelligence and history of treatment with depression, one can say that he was ill equipped to deal with the situation that developed with Mr Flesser. Mr Boyd's intelligence quotient has been assessed as 80 to 85 which places him in the low average range. Another factor reducing his ability to deal with the difficult situation was the intoxication with alcohol of both him and Mr Flesser. I understand Mr Flesser had a history of mental illness, it seemed schizophrenia. In short, the situation which arose was provoking and for the reasons just given Mr Boyd had vulnerabilities rendering him less able than most people to deal with it. 24 The offender does not have the benefit of a clear criminal record. Indeed he has a number of prior convictions dating back to 1983 when he was placed on a bond in respect of a number of offences of break, enter and steal. In 1989 he was given a 4 year suspended sentence for burglary and in 1995 he was placed on a bond in respect of two further charges of burglary. Other minor dishonesty offences have attracted fines. He has a number of convictions for being in possession of cannabis for which he has been fined. In 1991 he received a 6 month suspended sentence for supplying cannabis and in 1999 he received a 2 year suspended sentence for possessing a trafficable quantity of heroin for supply. Apart from various driving offences, he has also been convicted on a number of occasions for offences such as malicious injury, damaging property, breach of recognisance and resisting police in respect of which he has, on each occasion, been fined. 25 Of more immediate relevance to the present proceedings are his previous convictions for offences of violence. In 1983 he was placed on a bond for an offence of assault occasioning actual bodily harm. In 1991 he was ordered to perform 100 hours community service for a similar offence and a further 64 hours community service for threatening to kill a person. In 1995 he was convicted of common assault and assaulting police. Notwithstanding his history, the offender has only previously served one sentence of imprisonment and that was in 1997 when he failed to comply with the terms of a detention order, as a result of which he served three months in gaol. During that time he contracted hepatitis C. It would appear that a number of these offences have been committed whilst the offender was affected by intoxicating liquor. It is reasonable to conclude in the circumstances, that the offender has a problem in curbing his aggression when he is intoxicated. 26 It is common ground that the offender entered a plea of guilty at the first reasonable opportunity. That is a matter which I expressly take into account. See s 22 of the Crimes (Sentencing Procedure) Act 1999. That, of itself, is also some indication of contrition on the offender's part. I am aware that the offender did not spontaneously tell the police the entire truth about the incident. Furthermore, some of the things which he said at the time of his arrest displayed a considerable degree of callousness. Nevertheless other things which he said point in the opposite direction. In addition to what appears in the Statement of Facts, he also told police, for example, in the ERISP which was conducted with him that "I can only apologise, can't say sorry, what I did, I'm guilty, I did it, all I can do is apologise, that's all". He also expressed the hope that the deceased did not have children. In all the circumstances, I am prepared to find that the offender has displayed a measure of contrition for his actions, albeit that he expressed it in somewhat unconventional terms. 27 Nevertheless it was a plea of guilty entered in the face of a relatively strong Crown case. The strength of the Crown case is of course a relevant consideration only in respect of the question of contrition. However, given that there were no eye-witnesses to this confrontation between the offender and the deceased, it is conceivable that a jury may not have been persuaded that the Crown had negatived self-defence. It may, just possibly, in those circumstances have been prepared to acquit the offender altogether. That is accordingly a factor which is to be considered in an assessment of the overall value of the plea. The plea of guilty, coming as it did, upon arraignment, reveals that the offender has thereby "facilitated the course of justice". See R v Cameron (2002) 187 ALR 65. In the circumstances, and particularly given its timeliness, I will allow a discount for the utilitarian value of the plea at, or at least towards, the top of the range of 10% - 25% identified by this Court in R v Thomson & Houlton (2000) 49 NSWLR 383. 28 I accept the submission that the offence was not planned and that the fatal outcome was the result of a spontaneous reaction by the offender to the circumstances in which he found himself. Nor is it a case in which a lethal weapon was brought to the scene of the crime. Rather it would appear that the offender resorted to the use of a weapon which was readily available to him. The circumstances themselves point towards there having been a measure of provocation, although not in any sense that would meet the statutory requirements set out in s 23 of the Crimes Act. In any event as Mr Craigie SC quite rightly observed, the issue of provocation and the offender's excessive response by way of self-defence are, in a sense, co-extensive. The confrontation between the deceased and the offender with their respective backgrounds, with each of them being heavily intoxicated at the time, was unfortunately always likely to provide a lethal mix. The case is indeed a very sad one. 29 I accept what has been put on the offender's behalf about his reduced capacity to handle stressful situations and his heightened susceptibility to reacting inappropriately to behaviour which was in fact, or which he at least regarded as being, provocative. His own childhood experiences of physical abuse are relevant in this context, as are the considerations referred to in R v Fernando (1992) 76 A Crim R 58 and the fact that his hearing is impaired. It would also appear that the offender was particularly distressed about the ongoing problems he was experiencing concerning the custody of his children and the grief from which he was suffering by reason of the recent death of his close friend. All these factors provide a context in which the present offence must be evaluated. I have had regard to all of them in assessing the offender's overall culpability for the offence of which he has now been convicted. 30 There is evidence, which I accept, that the offender has spent his time productively whilst he has been in custody. He has completed a number of subjects through TAFE and the Adult Education and Vocational Training Institute respectively. An Education report speaks enthusiastically about his diligence as a student. That evidence, together with the other material which has been placed before me, leads me to conclude that the offender has more than reasonable prospects of rehabilitation. 31 It is also relevant that the offender will find his time in custody more burdensome than would otherwise be the case by reason of the fact that he is serving, and presumably will continue, to serve his sentence in protective custody. See R v Totten [2003] NSWCCA 207. The evidence indicates that the offender went into protection because of "the problems he would have in [the] main yard with his hearing problems". It is clear however from what I have just said that the offender was not in the most restricted form of protected custody. 32 In view of those matters, and because this is the offender's first term of imprisonment of any length, I am prepared to make a finding that there are "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The Crown did not submit that it was not open to me to do so. The offender in my view will need, and indeed will benefit from, an extended period of supervision upon his release from custody. That will enable him to address the problems to which I have referred that have been a feature of his life to date. 33 It is most regrettable that these proceedings have taken so long to be finalised. It is necessary to provide some explanation as to what has occasioned the delay. I heard evidence in this matter on 20 June and on 3 July last year. On the latter day I also heard submissions from counsel. I was aware at the time that there were very few authorities which had considered the application of s 421 of the Crimes Act. As it happened the provision had only come into existence the previous year. There were in fact only three such decisions namely R v Nguyen [2002] NSWSC 536; R v Cioban [2002] NSWSC 972 and R v Trevenna [2003] NSWSC 463. I was informed during the course of submissions that the decision in Trevenna, in which I had been the sentencing judge, was to be the subject of a Crown appeal. Because of the paucity of decisions, and the absence of any appellate authority at all concerning the application of s 421, I thought it prudent to adjourn these proceedings to abide the outcome of the Crown appeal. At subsequent directions hearings, the parties indicated their concurrence with that approach. As events transpired, the Trevenna appeal was not heard until 14 November 2003 and the Court reserved its decision until yesterday. In the interim, in October last year the Court of Criminal Appeal, differently constituted, heard and allowed an appeal in the matter of Cioban. Subsequent to that decision, the respondent to the Crown appeal in Trevenna sought leave to appeal against the severity of the sentence which I had imposed at first instance. The Court of Criminal Appeal unanimously dismissed the Crown appeal. R v Trevenna [2004] NSWCCA 43. By majority (James and Barr JJ, Santow JA dissenting) the Court also dismissed the respondent's appeal against the asserted severity of the sentence of 7½ years' imprisonment with a non-parole period of 4½ years which I had imposed. Santow JA comprehensively reviewed those few authorities which were in existence including R v Cioban [2003] NSWCCA 304, Nguyen and a further decision in R v Scott [2003] NSWSC 627. His Honour would have allowed the appeal against severity and would have substituted a sentence of 6½ years' imprisonment with a non-parole period of 4 years which coincidentally is the sentence which was substituted by the Court of Criminal Appeal in Cioban. 34 Santow JA produced, as an appendix to his judgment, a summary of the cases which have been decided pursuant to s 421. I have given careful consideration to that summary and indeed to the more extensive review of the various decisions which appear in the body of his Honour's judgment. In Trevenna itself, I had already given due consideration to the decisions in Nguyen and Cioban (at first instance). There is, in those circumstances, no necessity to refer in detail again to the facts of those cases. 35 His Honour was, as I have said, in the minority in relation to the severity appeal. James and Barr JJ each gave a separate judgment. Their Honours' remarks were of course made in the context of the exercise of an appellate jurisdiction. Nevertheless those remarks are relevant to my task. James J said: A conclusion that the sentence imposed fell outside the range of a proper exercise of his Honour's sentencing discretion cannot, in my opinion, be demonstrated by a detailed comparison, of the kind undertaken by Santow JA in his judgment, of the present case with the very few other cases in which sentences have so far been imposed for "excessive self defence" manslaughter under s 421 in Division3 of Pt 11 of the Crimes Act. (at para 93) 36 Barr J said: So variable is the crime of manslaughter, both in its legal formulation and in the range of culpability that it contemplates, that the identification of the available range of sentence in any individual case is notoriously difficult. In R v Blacklidge Court of Criminal Appeal, 12 December 1995 unreported Gleeson CJ, with whom the other members of the Court agreed, said- The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as "involuntary", do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. 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, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. (at para 98) 37 A little later his Honour said: The fact that the ultimate sentence in R v Cioban was a sentence of this Court gives it no particular force as a sentence for comparison. One can be certain that on the facts of that case a head sentence of eight years and a non-parole period of five and a half years [sic] were too high and that a head sentence of six years six months and a non-parole period of four years were within the proper range of sentencing discretion. What one cannot know is what the permissible range of head sentence and non-parole period were on the facts of that case, much less what they might be in other cases in which some facts might be similar and some dissimilar.

The three sentences under Part 11 Division 3 other than this case- Cioban, Nguyen and Scott - do not make a tariff. In my opinion it is not possible to demonstrate error by reference to them collectively because they are so few. (at para 107-8) (emphasis added) 38 Counsel for the parties have each addressed me again this morning in the light of the decision in Trevenna. The Crown's position when ultimately distilled, as I understand it, is that I would not fall into appellable error were I to impose a sentence of a similar length to that which I imposed in Trevenna. 39 As I have said, I have given due consideration to the other cases which have considered the operation of s 421 and have derived considerable assistance from them. In the final analysis however, I must exercise my own discretion as to the appropriate sentence to impose in the present case by having regard to the material which has been placed before me and to the principles which guide the exercise of that discretion. 40 Notwithstanding the offender's favourable subjective matters and the other features of the case to which I have referred, it is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999. This case involves the tragic loss of human life and accordingly nothing less than a substantial custodial sentence can be countenanced.

Sentence 41 For the crime of manslaughter I sentence the offender to a term of 7½ years imprisonment to commence on 10 January 2002 and to expire on 9 July 2009 with a non-parole period of 4½ years to commence on 10 January 2002. The first date upon which the offender is eligible for release to parole is 9 July 2006. **********

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