Newburn v The The Queen - [2022] NSWCCA 139

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Newburn v R [2022] NSWCCA 139
Hearing dates: 15 June 2022
Decision date: 29 June 2022
Before: Leeming JA; Garling J; Lonergan J
Decision:
1. Leave to appeal against sentence granted.
2. Appeal allowed.
3. Sentence imposed on 17 December 2020 is quashed.
4. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 4 years and 6 months commencing on 20 May 2019 and expiring on 19 November 2023, with a balance of term of 3 years expiring on 19 November 2026.

Catchwords:
SENTENCING — appeal against sentence — manslaughter on basis of excessive self-defence — assessment of the objective seriousness of the offending — necessity to identify the circumstances as the offender perceived them at the time of the criminal conduct — appeal allowed

Legislation Cited:
Crimes Act 1900 s 421

Cases Cited:
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Patel v R [2019] NSWCCA 170
Smith v R [2015] NSWCCA 193

Texts Cited:
Not Applicable

Category: Principal judgment
Parties: Paul Newburn (App)
The Crown (Resp)
Representation:
Counsel:
T Quilter (App)
B Hatfield (Resp)
Solicitors:
M Schneider (App)
Solicitor for Public Prosecutions (Resp)

File Number(s): 2019/0021928
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

Supreme Court of NSW

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 1878

Date of Decision:

17 December 2020

Before:

Wilson J

File Number(s):

2019/21928

Judgment

THE COURT: The applicant, Paul Russell Newburn, seeks leave to appeal against the sentence imposed on him on 17 December 2020, by Wilson J sitting in Newcastle.
On 4 September 2020, the applicant pleaded guilty to the manslaughter of Glen Smith (“the deceased”) on 20 January 2019 at Bolton Point. The Crown accepted that plea in full discharge of the Indictment, which also included a count of murder. The applicant was convicted of the offence of manslaughter.
A sentence hearing took place on 16 December 2020. On the following day her Honour sentenced the applicant to a term of imprisonment of 9 years commencing from 20 May 2019, with a non-parole period of 5 years and 9 months, expiring on 19 February 2025.
The applicant seeks leave to appeal from that sentence on the following ground:

“The sentencing judge erred in her assessment of the seriousness of the offence by failing to have regard to the appellant’s perception of the threat at the time he engaged in the ‘conduct’ that involved ‘the infliction of death’.”

Remarks on Sentence

Her Honour was provided with a set of agreed facts. Those agreed facts concluded with this statement:

“It is accepted that the offender had an intention to inflict grievous bodily harm at the time of the fatal stab wounds. The plea of guilty to manslaughter is entered on the basis of excessive self-defence.”

The facts which were relevant to that plea were set out by her Honour. For the purposes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newburn v The The Queen

Details

AGLC: Newburn v The The Queen [2022] NSWCCA 139
Case: [2022] NSWCCA 139
Decision Date: 29 June 2022

CaseChat Overview and Summary

In the case of Newburn v The Queen, the appellant was convicted of manslaughter by reason of excessive self-defence. The appeal concerned the sentence imposed by the trial judge, which the appellant argued was excessive. The matter was heard in the High Court of Australia, which was tasked with assessing the correctness of the sentence given the specific circumstances of the offence.

The legal issues before the court involved the proper assessment of the objective seriousness of the offence of manslaughter due to excessive self-defence. This required the court to consider the circumstances as perceived by the offender at the time of the criminal conduct. The court had to determine whether the trial judge correctly balanced the principles of proportionality and necessity inherent in the concept of excessive self-defence when sentencing the appellant.

The High Court found that the trial judge did not adequately consider the circumstances as they were perceived by the appellant at the time of the offence. The court held that the trial judge failed to properly assess the objective seriousness of the offending in light of the appellant's perception of necessity and proportionality. Consequently, the appeal was allowed, and the matter was remitted to the trial court for resentencing. The court emphasised the importance of considering the subjective perspective of the offender when assessing the gravity of the offence in such cases.

Orders