Supreme Court
New South Wales
Medium Neutral Citation: R v Black (No 2) [2021] NSWSC 77 Hearing dates: 9 February 2021 Date of orders: 12 February 2021 Decision date: 12 February 2021 Jurisdiction: Common Law Before: Cavanagh J Decision: The offender is sentenced to imprisonment for 6 years 9 months with a non-parole period of 4 years 4 months.
Catchwords: CRIME — Sentencing — Manslaughter — Stabbing — Self-defence with excessive force — Guilty plea — Extent of discount for guilty plea in issue — Whether “different offence” under s 25E(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) — Special circumstances
Legislation Cited: Crimes Act 1900 (NSW), ss 18, 421
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 1A, ss 3A, 25B, 25D, 25E, 25F, 28
Interpretation Act 1987 (NSW), s 34
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW)
Cases Cited: Barbieri v R [2016] NSWCCA 295
Callaghan v R [2006] NSWCCA 58
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Maroubra Rugby League Football Club Inc v Malo (2007) 69 NSWLR 496; [2007] NSWCA 39
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995)
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
R v Hamilton; R v Sandilands [2007] NSWSC 452
R v Isaacs (1997) 41 NSWLR 374
R v MD; R v BM; R v NA; R v JT [2005] NSWCCA 342; 156 A Crim R 372
R v Previtera (1997) 94 A Crim R 76
Category: Sentence Parties: Regina
Benjamin John BlackRepresentation: Counsel:
Solicitors:
J Stanhope (Crown)
A Evers (Offender)
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)
File Number(s): 2018/143212 Publication restriction: None
Judgment
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On 4 May 2018, Benjamin John Black (“the offender”) killed Jacob John King during a fight or struggle with him.
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On 5 February 2021, he entered a plea of guilty to manslaughter and the Crown has accepted that plea. The sentencing hearing took place in Port Macquarie on 9 February 2021. This is the sentencing judgment.
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The offender was originally charged with murder in respect of the killing of Mr King (as at the time of his arrest on 7 May 2018).
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On arraignment on 12 July 2019, the offender pleaded not guilty to murder but guilty to manslaughter. After vacation of his original trial on 18 March 2020 due to the current pandemic, his trial was listed to commence for three weeks at…
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- AGLC
- R v Black (No 2) [2021] NSWSC 77
- Case
- [2021] NSWSC 77
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the offence and whether it constituted a "different offence" as per the statutory provision. The judge deliberated on the principles of self-defence and the proportionality of the force used, assessing if the plea discount was appropriate given the nature of the offence and the circumstances. The court also considered any special circumstances that might affect the sentencing, such as the context of the altercation and the defendant's background. Ultimately, the court determined that while the plea discount was applicable, the excessive force used in self-defence warranted a higher sentence than what might typically be expected for manslaughter with a guilty plea.
The court concluded that the offence did not constitute a "different offence" under the Act, thus the plea discount was applicable. However, the excessive use of force mitigated the discount to some extent. Special circumstances, such as the context of the altercation, were taken into account but did not significantly alter the sentencing outcome. The court ordered that Mr. Black be sentenced to a term of imprisonment, with a specific focus on the proportionality of the force used in self-defence. The final orders included a detailed sentence that balanced the plea discount against the excessive force employed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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