Appeal
The sentence imposed is manifestly excessive.
26 That was the only ground of appeal. It was submitted that his Honour fell into error by characterising the objective features of the present case as "significantly more serious than those in Cioban". The fact that in Cioban the offender did not believe that the deceased had a weapon, had not been threatened with death by the deceased and that there was no pre-existing threat, were relied upon as indicating the objective seriousness of the offence in that case. It was sought to contrast those facts with the repeated visits by the deceased to the applicant's home and the ongoing threats made by the deceased who was known to possess a pistol.
27 There are a number of difficulties with that submission. The most obvious is the level of unreasonableness involving in the response. As his Honour pointed out, the applicant's response was "extremely unreasonable". In the passage quoted [16] his Honour set out the basis for that conclusion. In essence what the applicant had done was to launch a pre-emptive strike against the deceased to prevent his threats ever becoming a reality. As his Honour appreciated, that was a significantly more serious circumstance that that which arose in Cioban. There the threat had become a reality and the offender was locked in what he believed to be a life and death struggle at the time of the shooting. It follows that I am not persuaded that his Honour was wrong to characterise the objective seriousness of this offence as greater than that in Cioban.
28 Another difficulty, which is fundamental to the submission, is that it assumes that the appropriateness of a sentence for the offence of manslaughter can in part be assessed by reference to a detailed comparison of sentences imposed in other reasonably similar cases. That might be so if the cases were in fact similar and if there were a sufficient number of them to establish a clear sentencing trend.
29 Unfortunately the offence of manslaughter of its nature covers a wide spectrum of factual circumstances. It is rare for there to be any real comparability in facts. The observation of Gleeson CJ in R v Blacklidge (unreported, NSW CCA, 12 December 1995) remains valid.
"The crime of manslaughter comprehends all forms of punishable homicide other than murder ( Crimes Act 1900 (NSW) 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, involved 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 and degree 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 the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That 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 Dodd (1991) 57 A Crim R 349, R v Hill (1981) 3 A Crim R 397 at 402)."
30 More recently Spigelman CJ in R v Forbes [2005] NSW CCA 377 commented to similar effect:
"133 As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge ). In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman (1987) 49 SASR 248 at 252; R v Hoerler (2004) 147 A Crim R 520 at [39]).
134 It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.
135 For example, where diminished responsibility is relied upon, the extent to which culpability is "diminished" can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as "child killing by a parent or carer", it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases (see Hoerler (supra)). This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff it is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence ( R v Trevenna (2003) 149 A Crim R 505).
136 The test established by s148 of the Crimes Act is whether "the conduct is a reasonable response in the circumstances as he or she perceives them". Such a test must depend on the characteristics and conduct of the deceased and also the nature of the response, in all of the circumstances of the particular case, on the part of the accused. A test of such a wide-ranging character is unlikely to lead to anything in the nature of a sentencing pattern or tariff in which the decisions on one case are of any particular utility for another."
31 His Honour was referred to five cases involving excessive self-defence. Even when this application was heard, the Court was referred to only a further five cases involving excessive self-defence. It is also noteworthy that the sentences imposed in most of those cases followed upon a plea of guilty, whereas the present matter had proceeded to verdict as a result of a trial. It seems clear that apart from the fundamental problem referred to in Blacklidge and Forbes that the statistical sample of sentences for the offence of manslaughter where excessive defence is involved, is too small to be of any real practical value.
32 What his Honour was required to do and in fact did was to accurately review the facts and assess the objective seriousness of the offence by reference to the particular circumstances associated with it. Those which his Honour specifically identified were that the applicant had chosen deliberately to shoot the deceased intending to kill him without any prior warning. Although the applicant may have believed the deceased to be armed, the shooting took place at a time when the deceased was holding no weapon and was standing in such a way as to not present any immediate threat. It was against that background that his Honour passed the sentence which he did.
33 To establish that a sentence is manifestly excessive an applicant has to demonstrate that the sentence was "unreasonable or plainly unjust" (Dinsdale (2000) 202 CLR 321 at 325). This has to be established in a context where there is no single correct sentence and that judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. Most pertinently the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because it may have exercised its discretion in a manner different from that of the sentencing judge. (Markarian v The Queen [2005] HCA 25 at [26] - [28]).
34 In the present case Studdert J had a substantial discretion in sentencing the applicant for the offence of manslaughter and it has not been shown that the sentence which he imposed fell outside the range of a proper exercise of his Honour's sentencing discretion. A conclusion that the sentence fell outside the range of a proper exercise of his Honour's sentencing discretion cannot be demonstrated by a comparison with or by reference to the very few other cases in which sentences have so far been imposed for "excessive self-defence" manslaughter offences.
35 I propose that leave to appeal be granted but that the appeal be dismissed.
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