Thus if an offender believes it necessary to act in a certain way, but the conduct which manifests itself from this belief is unreasonable in the circumstances as perceived then the person will be found guilty of manslaughter rather than murder where that person has used force that involves the intentional or reckless infliction of death. This was essentially the common law position explained by the High Court in R v Viro (supra). There it was held that self-defence which was necessary, but which involved the use of excessive force causing death, would lead to a finding of manslaughter instead of murder, where either
(a) provocation was present, or
(b) the jury is not satisfied beyond reasonable doubt that the accused did not have the belief that the force he used was reasonably proportionate to the danger which he believed he faced (per Stephen, Mason and Aickin JJ).
40 More recently, Zecevic (supra) (at 662) explains the pre s421 common law position, in terms emphasising the necessity for provocation or absence of intent to kill or do grievous bodily harm to reduce what would otherwise be murder to manslaughter:
"If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter …"
41 The statutory provisions are so recent that, so far as research reveals, there are but two cases on them. They are R v Nguyen and at trial, Regina v Cioban [2002] NSWSC 972 and very recently on appeal Cioban v R [2003] NSWCCA 304 (21 October 2003). The appeal judgment in Cioban post-dates the judgment of Buddin J in the present case. The statute provides no guidelines as to sentence beyond the general provisions of s24 setting the maximum sentence for manslaughter at 25 years.
42 What then of the earlier common law as applied in cases on excessive self-defence, insofar as these are capable of providing any guidance for sentencing purposes? Here two caveats must be borne in mind. One is the need to have regard to where, as I have explained, the statutory regime modified or refined the common law. The other is the difficulty of attributing a meaningful sentencing range, where "of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability"; R v Blacklidge (CCA, unreported, 12 December 1995) per Gleeson CJ with whom Grove and Ireland JJ agreed. Similarly Perry J in R v O'Donnell [2002] SASC 183 (13 June 2002) at 24 quoting Martin J in R v Duke [2000] SASC 254, Court of Criminal Appeal (unreported) at 43:
"Matheson J referred to the sentencing remarks of Wells AJ in R v Shaw SASC (unreported) in which his Honour had observed that at the lowest range of criminality manslaughter may be little more than a practical joke that went wrong, and at its highest it stops just short of murder. As King CJ said in Weinman at 248, 'the facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards'. Bollen J expressed the same view."
43 Those caveats require a degree of care in seeking assistance from earlier common law cases on excessive self-defence. But they do not stand in the way of ascertaining those generic factors from the cases which, in their preponderant effect, demonstrate that a particular sentence is outside the range appropriate to the objective gravity of the offence so as to be either manifestly excessive or manifestly lenient.
44 In an appendix to this judgment I have set out by way of comparison to the present case generic factors affecting sentence in the two other s421 cases and in comparable common law cases which preceded s421. Those cases (both under the common law and s421) show a wide range of factual circumstances, subjective factors and, it must be emphasised, sentences. At one end of the sentencing spectrum there is R v Gazdovic [2002] VSC 588 where no custodial sentence was imposed. At the other end is O'Donnell v R (supra), where the claimed self-defence was rejected, though the offender was still charged with manslaughter. He received a non-parole sentence of 8 years with an additional 4 years. However apart from O'Donnell, where the only factor favouring leniency was the age of the offender, who killed another in a drunken brawl, all the other head sentences and non-parole periods were shorter than in the present case, including both the other two cases on s421, and each of the comparable common law cases. This is save for R v Azar (1991) 56 A Crim R 414, where the head sentence was shorter by one year, but the non-parole period was the same; factors favouring stringency though were stronger than the present case as I explain. I do consider that significant, in terms of range of sentence.
45 Nonetheless generic factors, objective and subjective, repeatedly arise as relevant to sentencing in excessive self-defence cases whether at common law or under statute. I set these out below with reference to the cases including the present one:
(a) the offender was carrying the weapon prior to the time of the offence ( R v Nguyen , R v Sofokleous (unreported NSWCCA 13 December 1993), R v O'Donnell ) or deliberately armed himself to rejoin an affray ( R v Azar (supra));
(b) threat to offender's life from a stronger assailant or one who is armed (R v Trevenna [2003] NSWSC 463, R v Nguyen, Cioban v R [2003] NSWCCA 304, R v Gazdovic (supra));
(c) an abusive history present in the relationship between the offender and the deceased (R v Gazdovic, R v Scott [2003] NSWSC 627 or involving the deceased with others (R v Trevenna);
(d) contrition (R v Trevenna, R v Nguyen, Cioban v R, R v Gazdovic, R v Grenenger [1999] NSWSC 380, R v Azar);
(e) age (R v Nguyen, R v Gazdovic, R v Grenenger, R v O'Donnell);
(f) character of the offender (R v Trevenna, Cioban v R, R v Gazdovic, R v Grenenger, R v Azar);
(g) guilty plea, its value and timeliness (R v Trevenna, R v Gazdovic, R v Scott (supra));
(h) the offender was the original aggressor (R v Nguyen);
(i) the offender's previous criminal record (R v Trevenna, R v Nguyen, Cioban v R, R v Gazdovic, R v Grenenger, R v Azar);
(j) the offender was on parole (R v Nguyen);
(k) pre-planning of the offence (R v Trevenna, R v Nguyen, Cioban v R);
(l) the offender was charged with other offences related to the incident (R v Nguyen);
(m) rehabilitation prospects (R v Trevenna, Cioban v R, R v Gazdovic);
(n) dependent children (R v Trevenna, Cioban v R);
(o) drugs and/or alcohol involved in the incident (R v Trevenna, R v Scott, R v Sofokleous (supra), R v O'Donnell);
(p) depressive illness on the part of the offender (R v Scott);
(q) continued attack after the deceased had been subdued (R v Gazdovic, R v Scott);
(r) the offender lied to police about his or her involvement in the crime (R v Sofokleous).
46 The cases demonstrate that manslaughter in these circumstances is often a crime committed under conditions of fear of varying degrees of extremity. There was at one level the armed break-in that occurred in R v Nguyen representing a significant threat. But even more extreme is the actual and immediate threat to life as occurred in the present case. The cases frequently contain an element of reaching for the nearest possible weapon available; for example R v Gazdovic, R v Grenenger, R v Scott and the present case.
47 In Azar, the generic factor was a deliberate arming by the offender before rejoining an affray - a factor totally absent here. Thus the offender extricated himself from a brawl involving two groups of young persons, went to a nearby house, retrieved a knife and returned to the affray to stab the victim to death. There was therefore in Azar an element of premeditation, without the offender being in fear of his life and having to kill in order to escape. Whereas here, all occurred during the one life-threatening incident, with no element of premeditation but seizing the only weapon at hand.
48 In the present case, the weapon was not the offender's own but was actually the property of the deceased. In contrast, that the offender was carrying an illegal weapon was an aggravating factor in R v Nguyen, though the sentence was ultimately a lower one than in the present case (by some 6 to 12 months). Similarly in R v Sofokleous, Kirby P made note of the fact that if the offender had not been carrying the butterfly knife that night, the death would not have occurred. Though the weapon used in the present case was extreme, it was the only weapon that was at hand for the offender and was used in a situation where she feared her life. The sentencing judge specifically referred to the judgment of Greg James J in R v Nguyen "that the 'exigencies of the moment were such that the offender simply resorted to what protective weapon was at hand'".
49 The case that perhaps bears the closest resemblance to the present case is that of R v Scott. In that case the accused and deceased both were involved with drugs, as was the case here. The deceased and the accused had been fighting and the deceased had threatened to kill the accused with a knife and had held it to her throat. The accused hit the deceased with an iron multiple times, causing his death. Though the use of the iron as a weapon was less extreme than the use of the shotgun, it was aggravated by the fact that the offender continued to hit the deceased even after he most likely had been stunned and deterred by the original blow. In both cases the offender was in fear of her life and acted in self-defence, though in an excessive manner. In the present matter the offender gave evidence that the deceased had threatened to kill her and had also choked her. There was also evidence that the deceased had threatened the offender with a cricket bat. Both offenders pleaded guilty to manslaughter. One distinguishing factor is that in R v Scott the offender was suffering from a depressive illness as a result of a number of unsuccessful pregnancies. The offender also buried the body. Yet in Scott the sentence was markedly lower; 5 years imprisonment with a non-parole period of 2 years 6 months.
50 I point this out, not to commit the error of simply comparing out of context one case to another to see if the sentence was more severe or more lenient (see for example R v Jason Paul Morgan, (1993) 70 A Crim R 368 per Hunt CJ at CL) and the line of cases which have emphasised this stricture. Rather it is to determine whether, against the background of a number of cases, the challenged sentence was, taking into account generic factors, within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender or was instead either manifestly lenient or manifestly excessive.
51 Applying that approach, it will be seen that most of those factors supporting leniency were present in this case, while those supporting a heavier sentence tended to be absent. I will later elaborate on those factors as they emerged in the present case. I will also deal in more detail with the generic factors in Nguyen and Cioban, by way of comparison. But by way of summation, the following generic factors are found which can fairly be said to favour the respondent. She was not carrying a weapon prior to the time of the offence but picked up the deceased's to defend herself. She was faced by a much stronger assailant. Her life was in clear danger as she knew. There was an abusive history involving others. She showed contrition. Her guilty plea though not early was early enough to be valuable. She was not the original aggressor but rather the deceased. She was not on parole at the time. There was no suggestion of pre-planning of the offence and she was charged with only one offence. She had good rehabilitation prospects and a young dependant child. In addition, though not amounting to provocation at law, she considered that the deceased had interfered with her son, being part of "the circumstances as … she perceives them". But the most serious factor to be weighed against her is that she shot the deceased in the back of the head, and must be taken to have known that the result would be fatal. That departed from a reasonable response, though she had the necessary belief which brought s421 into play. In terms of the objective gravity of the offence, that factor was clearly important. For reasons which I later develop, in that weighing up, I consider insufficient weight was given to those factors in her favour, without in any way diminishing the objective gravity of what she did.
52 Thus I conclude that a reduced sentence would not be outside the range of sentence, insofar as any range can be discerned at all, in the common law cases to the extent comparable, or the two s421 cases and this one analysed in the Appendix. I say "to the extent comparable" because indubitably there are, as James J and Barr J point out in their respective judgments (which I have had the advantage of reading in draft) specific differences. These principally centre around the distinction on the one hand between manslaughter by unlawful and dangerous act (for example, Gazdovic; Grenenger; O'Donnell) or with intent to do grievous bodily harm (for example, Sofokleous) compared to this case where there was intent to kill but in the extenuating circumstances of s421 as also Cioban and Nguyen. That is to say, there was intended self-defence against a perceived threat to the life of the accused but by way of a response that was not reasonable, causing death. I accept that two other cases to be compared to this one are still few to produce a reliable tariff or range. But I do consider that they provide sufficient guidance to generic factors even by themselves and certainly when supplemented by those manslaughter cases sufficiently comparable, as to permit interference with the heavy sentence and non-parole period here imposed. There is certainly a danger in premature appellate intervention which does not pay proper deference to the trial judge's sentencing discretion and familiarity with case in hand. But there is also a risk of individual injustice in holding back when the broad shape pointing to an appropriate range of sentence can be discerned along with the generic factors pointing in one direction or another. I believe that we are at this point.