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R v Black (No 2)

R v Black (No 2)

Case [2021] NSWSC 77 12 February 2021

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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
GG v R [2018] NSWCCA 280
Magro v R [2020] NSWCCA 25
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 Doudar [2020] NSWSC 1262
R v Hamilton; R v Sandilands [2007] NSWSC 452
R v Horton [2010] NSWSC 1007
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
R v Smith [2009] NSWSC 1183
Smith v R [2015] NSWCCA 193
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Category: Sentence
Parties: Regina
Benjamin John Black
Representation:
Counsel:
J Stanhope (Crown)
A Evers (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2018/143212
Publication restriction: None

Judgment

On 4 May 2018, Benjamin John Black (“the offender”) killed Jacob John King during a fight or struggle with him.
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.
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).
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…

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 R v Black (No 2)

Details

AGLC: R v Black (No 2) [2021] NSWSC 77
Case: [2021] NSWSC 77
Decision Date: 12 February 2021

CaseChat Overview and Summary

The case of R v Black (No 2) involved the defendant, Mr. Black, who was charged with manslaughter following a fatal stabbing. The incident occurred in a heated altercation, where Mr. Black claimed he acted in self-defence, albeit using excessive force. The case was heard in the Supreme Court of New South Wales. The central legal issue was the extent of the discount Mr. Black would receive for entering a guilty plea and whether the offence constituted a "different offence" under section 25E(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court was also required to consider any special circumstances that might warrant a departure from the standard sentencing principles.

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