R v Cioban

[2002] NSWSC 972

CITATION:	R v Cioban [2002] NSWSC 972
CURRENT JURISDICTION:	Common Law Division Criminal List
FILE NUMBER(S):	SC 70008/02
HEARING DATE(S):	27 May - 17 June, 30 August, 2002
JUDGMENT DATE:	18 October 2002
PARTIES :	Regina v Gheorge Cioban
JUDGMENT OF:	Studdert J

COUNSEL :	Crown: W. Robinson (Trial); M. Cuneen (Sentence) Prisoner: A. Lucas
SOLICITORS:	Crown: Office of the Director of Public Prosecutions Prisoner: The Law Practice
CATCHWORDS:	Criminal law - sentencing - manslaughter - use of weapon against unarmed offender - unreasonable response even in circumstances as offender perceived them - Crimes Act s.421(2). Criminal law - sentencing - malicious discharge of firearm with intent to do grievous bodily harm - s.33A(1) of Crimes Act.
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act Sentencing Act
CASES CITED:	R v Isaacs (1997) 41 NSWLR 374 R v Blacklidge (unreported) NSWCCA, 12 December 1995 R v Troja (unreported) NSWCCA, 16 July 1991 R v Morabito (1992) 62 A Crim R 82 R v Alexander (unreported) NSWCCA, 24 February 1995 R v Maguire (unreported) NSWCCA, 30 August 1995 R v Papandrea [1997] NSWSC 978; [2000] NSWCCA 499 R v Dodd (1991) 57 A Crim R 349 Pearce v The Queen (1998) 194 CLR 610
DECISION:	See paras 61-63.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL list

STUDDERT J

Friday 18 October 2002

070008/02 REGINA v GHEORGHE CIOBAN

SENTENCE

1 HIS HONOUR: Gheorghe Cioban stood trial following the presentation of an indictment containing two counts:

(i) that on 6 January 2000 he did murder Samuel Ekevati;

(ii) that on the same date he did maliciously discharge a firearm with intent to do grievous bodily harm.

2 After a trial occupying fourteen days, on 17 June 2002 the jury found the prisoner not guilty of murder but guilty of manslaughter on the first count, and guilty as charged on the second count.

3 Evidence and submissions on sentence were received on 30 August 2002.

4 The evidence at the trial established that the deceased died in consequence of a gunshot wound. The shot fired penetrated muscles in front of the rib cage, went into the centre of the chest, through the heart wall, through the top part of the major blood vessels coming off the heart, into the back of the sac that encloses the heart, then damaging the upper part of the left lung and passing through the back left side of the chest wall before damaging part of the fifth rib on the left side and lodging beneath the skin surface.

5 The shooting took place shortly before 6.00 am on 6 January 2000 in Darlinghurst Road, Kings Cross.

6 The evidence established that earlier that morning the prisoner and a male companion had been drinking at the Hampton Court Hotel and so too had the deceased. The deceased was one of a group of four or five men described in the evidence as Fijians who were drinking in the same hotel. There was an altercation and the prisoner and his companion were asked to leave the hotel. They did so and were followed by the deceased and his companions.

7 The evidence further established that there was at that time a chicken shop at the corner of Bayswater Road and Darlinghurst Road and two witnesses at the trial were at the shop making a delivery. They saw a fight start at that location. These two witnesses saw only one person described as white-skinned involved in the skirmish and each of these witnesses thought that that person started the fight. However, according to Edward Sorchantte, one of those engaged in the delivery, the other men then caught the initial aggressor and punched him to the ground. He was then kicked and punched before being dragged towards the footpath.

8 There were a number of witnesses who were called to give evidence as to what subsequently occurred. The description of events from these various sources understandably differed. This was explicable not only by reason of differences of recollection but also because these eye-witnesses were not standing in a group together seeing what occurred from precisely the same perspective. From the time that the fighting began, those involved in it moved away from the intersection with Bayswater Road, progressing further along Darlinghurst Road.

9 Little purpose would be served by recording an exhaustive summary of the evidence given by these various eye-witnesses, but I do propose to record fairly shortly an outline of their evidence.

10 I deal firstly with the evidence of those men identified in the evidence as those who had been with the deceased at the Hampton Court Hotel.

11 Lorima Koroitamana was a friend of the deceased. He said that there were two “white guys” involved in what happened. I shall refer to descriptions by skin colours from time to time in my review of the evidence, not because the evidence suggests that what happened was because of any racial dispute, but simply because various witnesses described what they saw people do by reference to the colour of their skin. This witness said that those two men struck all of the members of his group at the chicken shop location. He said that the fight having started then, it progressed on the street and at one stage he saw a white guy holding a gun in his hand, and that man ran away and the deceased followed him, and that was when the deceased “got shot” (T 329).

12 Moses Ekevati was a cousin of the deceased and of another member of the deceased’s group, named Pita Ekevati. He too described what occurred as starting at the chicken shop when each of the “white guys” landed blows. He said that happened in the chicken shop and then the men went out on to the footpath and events proceeded from there. He said that the deceased ran towards the man with the gun, heading towards the fountain. He said at the beginning he was running with the deceased in pursuit of the white man and then he saw the white man pulling a gun from his pants. The witness said that he stopped when the gun was pulled out but the deceased continued to chase the other man and caught him in the doorway past the supermarket. He said there was a shot, before which the “white guy” had his back to the wall. After the shooting the “white guy” ran away towards the fountain. He said that before the fatal shot the man with the gun said “I’ve got a gun”, and a shot was then fired into the footpath. The witness thought this was a warning shot, and it was after that that the deceased gave chase and the man with the gun was seen by him to be running backwards. The deceased continued to go after him until the struggle occurred in front of the doorway. This witness first saw the gun when the man holding it drew it from his pants.

13 Pita Ekevati was another cousin of the deceased and he too gave evidence that the two white men, including the one that was later seen by him to be carrying a gun, were the first to strike blows. This witness said he was hit on the back of the head and so too was another Fijian. The assailants ran up the road and the Fijians gave chase, although this witness said that he only walked. He said that he saw the man with the gun pointing it at his cousins. He said that the gun was being held with the arm extended and he heard the man scream out that he had a gun. Then he said that this man started running down the road and he pulled the trigger. This witness said he did not see where the shot went, but that it did not hit anybody. When the shot was fired, the deceased was the only Fijian who did not stop. After the shot was fired the gunman turned and ran and the deceased chased him and caught him. He said they started to wrestle and the deceased pushed the man into an alleyway. He said in cross examination that this was where the fatal shot was fired. After the shooting the gunman ran off.

14 Salah Jawad was a taxi driver who was parked at the taxi rank in Darlinghurst Road when he saw a fight developing in front of him in the middle of the road. He saw three men punching and kicking another man who started to run away. A dark man went towards the man who had run away and pushed him into an alleyway where he heard a shot fired. The witness said he saw the gun in the hand of the man being pushed. At that time it was not facing the pursuer but was raised above the gunman’s head. In cross examination he described the chase that preceded the shooting. He said that the man with the gun was on the ground being kicked and punched, that he then got free and ran away and was pursued. He said he was caught by the dark man two or three times and was punched and pushed, and it was his impression that the man with the gun “just wanted to get away from the area” (T 186).

15 Rachel Hampshire had been drinking with friends in a bar and was walking along Darlinghurst Road towards the city when she saw a group of five dark-skinned men proceeding towards her and they seemed to be surrounding someone. She said that the group passed her and she stopped and looked towards them. She saw a man holding a gun in both hands some three or four metres away. He was holding the gun with his arms extended. She subsequently heard the gun go off.

16 Veronica Baxter described seeing a man being pursued by a group of four Islanders and they caught him and beat him up. There was a second man who headed towards the fountain walking quickly. She said that this man turned and was walking backwards with an Islander in pursuit “yelling and screaming”. The white man had a gun and showed it to the Islander and told him to “f… off or I’ll shoot you”. The Islander pursued the white man, and this witness said that the white man tripped over into a doorway and the Islander lunged on top of him and started throwing punches. The witness then heard a bang.

17 Helmet Cerncic observed the confrontation in Darlinghurst Road when he stepped out of a newsagency. He saw two Islanders and a Caucasian involved in this confrontation and then more Islanders arrived. He said that the Caucasian was pursued down the road and was surrounded, whereupon he fell and was kicked. He said the Caucasian got up and started running again and was caught and punched and kicked. He seemed close to a doorway but he did not see the man pushed into the doorway. He then heard two noises which were gunshots.

18 Kevin Brown saw a scuffle when he entered Darlinghurst Road after having arrived at Kings Cross by train. He said there were six men involved in it and it spread on to the road. He saw a Caucasian being pursued by five or six dark people who caught him and beat him up. He saw a second Caucasian not involved in the first scuffle and he saw this man take a pistol from his trousers. He covered it with his hands and stepped into a doorway with the gun covered by overlapping hands. A dark man earlier involved in the scuffle down the road ran towards the man with the gun and then there was the noise of shooting, and the dark man fell.

19 Christopher Allen was a demolition worker who saw the fight on the road and he saw that there were two white men involved in it and some dark men. A white man was pursued by a dark man towards where the witness was. The witness said that the black man rammed the white man into the doorway and the white man there shot him. He said that before the shooting the black man caught the white man who turned around and there were some punches exchanged before the black man had the white man on the ground. The white man got up, the black man grabbed him again and drove him into the doorway where he heard the loud bang and after that the white man got up, tucked the gun into the forward right pocket of his pants and walked away.

20 Dean Palasovski saw the fight develop at the chicken shop corner. He said there were five or six Islanders in it and two white males. He said that when the fight started it split up into two groups, one on one, and the remainder of the Islanders fighting the other white man. He said he saw one white man on the road waving a gun around, facing a black man. They were scuffling, with the white man proceeding backwards and the black man punching. He said the white man was moving away, just pointing the gun, and he heard the white man threaten “I’m going to shoot this”. At that point the witness turned away but he then heard the gun go off. In cross examination he said that everything he heard led him to conclude that the first shot was a warning shot.

21 Grant Richardson was a waiter employed at a bar in the area and after finishing work on the morning of the shooting, this witness went with workmates for a drink. He then went out on to Darlinghurst Road where he saw a white man who he identified as the prisoner walking backwards across the road but with a black man walking towards him. Mr Richardson had recognised the prisoner as a regular customer at the bar where he worked. He saw the prisoner was holding a gun by his side. He said that the prisoner walked back, made a stop sign with his left hand and the gun came up in a “slightly brandishing fashion” with the gun held at waist level. He said that the prisoner continued to walk away until he was tackled, that he and his assailant fell to the ground and the gun went off. He only ever heard the one shot.

22 Jason Rosengren had his attention drawn to the fight in Darlinghurst Road. He saw two men fighting, one of Islander description and the other man of European description. He said that as they proceeded on the footpath the European was walking backwards and the Islander was following him. The European had his hands up with his palms extended and the Islander appeared to be becoming more and more upset. The witness observed the European to pull a gun and the Islander became more aggressive, moving more quickly, and then he wrestled the man with the gun into the doorway where the witness thought he heard three shots fired. He said before the shots were fired there was a struggle on the ground with the Islander on top of the other man. After the shooting the gunman walked away and, indeed, the witness gave chase. The circumstances of the chase do not call for review in this brief outline of events.

23 The events giving rise to the offence charged in the second count occurred first in point of time and not all the witnesses described what happened. Moses Ekevati, in the summary which I have already expressed, described seeing the gun pulled out and a shot being fired on to the footpath. Pita Ekevati described hearing the man scream out that he had a gun and thereafter that man pulled the trigger. Pita Ekevati did not see where the shot went but he said it did not hit anybody. Dean Palasovski gave evidence of hearing the gunman say “I’m going to shoot this” before he heard the gun go off, and he spoke of a subsequent gunshot.

24 There was another witness whose statement was read to the jury after arrangements for the witness to be flown from South Africa to give evidence at the trial proved to be unsuccessful. The Court was told that he missed a connecting flight. His statement was then admitted without objection. The name of the witness was Dick Arthur Andrews. He was a taxi driver who was parked on the rank in Darlinghurst Road. His statement reads in part (T 569/570):

“I was sitting in my cab (marked 1) when I noticed a fight coming around the corner from Bayswater road. Then around into Darlinghurst road. There was a white male running with Fijian male chasing after him, about six feet apart. The white male was heading along the footpath then turned and went across the road. The white male has tripped and fallen down onto road (mark 2). The Fijian male has run up to him and started to punch him on the ground with both hands in the face. I also saw the Fijian male kick the white man who was on the ground. The white man was trying to get up off the ground. There was another group that had come around the corner following the two fighting. There were two more Fijians and another white male. They were not fighting but I could tell they were with the two who were fighting. I was watching the fight and I saw a gun thrown from the group to the white male on the ground. The gun landed on the roadway and skidded and stopped just near the feet of the white male. The white male on the ground grabbed hold of the gun, got to his feet and ran off. The white male ran back in front of my cab, onto the footpath and run north on the eastern foot path. The Fijian male has continued to chase him along the footpath. The rest of the group have continued to follow the two fighting but not getting involved or fighting… The Fijian guy caught the white male…and started to punch him again. This was still on the footpath and both males were standing. I saw both persons throwing punches at each other. The white male was only punching with his left hand. He was still holding the gun in his right hand. The white male has then pointed the gun at the Fijian, straight into his face. The gun was very close to the Fijian’s face. It was maybe twenty centimetres from his face. The gun was pointed right into the centre of his face. The white male is still trying to punch him with his left hand while he had the gun pointed at the Fijian. The Fijian was still trying to punch the white man. He was also hitting the gun. It looked like he was trying to knock it away. The Fijian was also yelling at the white male: ‘Shoot, shoot, if you want to shoot, shoot.’ The white male has then fired a shot at the Fijian. I saw the finger of the white man pull the trigger on the gun. The Fijian was still trying to knock the gun aside but he wasn’t near the trigger. I heard a loud bang. I saw a flare from the barrel of the gun and some smoke. The shot missed the Fijian. I think it went past him on the Fijian’s right side about head level. I did not hear the shot hit anything. After he fired the gun, the white male ran off north along the footpath again. The Fijian has continued to chase the white man and caught him again just north of the hotel…”

25 It was open to the jury to conclude, and it is obvious from the verdicts of the jury that the jury did conclude, that the man who the various witnesses described as having held the gun and as having fired the shots was the prisoner.

26 Whilst there were witnesses whose evidence conveyed that the prisoner had a companion, the evidence did not identify any such person.

27 With the above review of the evidence in mind, I turn to consider each of the two counts.

The first count

28 The jury found the prisoner not guilty of murder but guilty of manslaughter. The jury was directed that there were three possible ways in which it could reach such a verdict:

(i) that the elements of murder were established, other than that the Crown failed to prove beyond reasonable doubt that the accused did not personally believe that it was necessary for him to do what he did to defend himself. In such circumstances s 421(2) of the Crimes Act provided the basis for a finding that the prisoner was guilty of manslaughter;

(ii) that the elements of murder were established but that the act of the prisoner causing death was done under provocation;

(iii) that the requisite intent for murder had not been proved, but the act causing death was an unlawful and dangerous act not done in self defence.

29 Mr Lucas submitted that the explanation for the verdict of the jury is that the Crown failed to prove that the prisoner did not believe the shooting was necessary to defend himself. In other words, it was submitted that the first of the possible ways in which a verdict of manslaughter could be returned was the way chosen by the jury.

30 I am attracted by that submission, but it is not my task to determine the basis upon which the jury found the prisoner guilty of manslaughter. It is my task to find for myself the facts material for sentencing purposes, consistently with the verdict returned by the jury: see R v Isaacs (1997) 41 NSWLR 374 at 380. A recognition of the nature of this task prompted the brief factual review earlier set out.

31 In discharging my task I direct myself that the prisoner is to be given the benefit of any reasonable doubt: see Isaacs (supra).

32 I find the following:

(i) that the prisoner fired the fatal shot;

(ii) that he did so deliberately. This is implicit in the jury’s finding of course, but in any event the evidence persuades me beyond reasonable doubt as to the deliberate nature of the shooting. I accept that before he moved into the doorway where the fatal shot was fired the prisoner had threatened the shoot, and I accept the evidence that the witness Mr Palasovski gave about this;

(iii) that in doing so he used force that involved the reckless infliction of death. I described earlier the path of the bullet through the body of the deceased and the shot must have been fired with the weapon very close to the body of the deceased;

(iv) that the Crown has not proved that the prisoner did not believe it was necessary to fire the shot in self defence.

33 As to (iv), the evidence established that the prisoner was in the process of retreating before he fired the fatal shot, and the evidence of Dean Palasovski and of Christopher Allen, which I have earlier reviewed, establishes this. I accept that the prisoner had already been punched and kicked closer to the Bayswater Road intersection with Darlinghurst Road and that the deceased had been acting very aggressively towards the prisoner prior to the time that the first shot was fired, and, indeed, thereafter until the second and fatal shot was fired. I find that the deceased was the only member of the group described in evidence as the Fijians who continued to pursue the prisoner after that first shot. The evidence established that the deceased was affected by drink, and he was a taller and younger man than the prisoner. On my analysis of the evidence, the prisoner may well have perceived that he was cornered in the doorway and that he was faring badly in resisting the deceased.

34 The prisoner gave no evidence at all but, addressing the issue of self defence on the Crown case, that evidence does not satisfy me beyond reasonable doubt that the prisoner did not have the belief that what he did was necessary to defend himself.

35 It is implicit in the jury’s verdict that the jury considered that the prisoner conducted himself in a manner that was not a reasonable response in the circumstances as he perceived them and I am satisfied beyond reasonable doubt in any event, on my analysis of the evidence, that this was the case. The evidence did not suggest that the deceased was armed with any kind of weapon and the manner of the shooting of the deceased at such close range was not a reasonable response in all the circumstances, even as perceived by the prisoner.

36 Because I consider that the requisite intent for the crime of murder was established, a verdict of manslaughter by unlawful and dangerous act would not be appropriate.

37 In my opinion the Crown proved beyond reasonable doubt that the accused did not shoot the deceased under provocation. I so conclude for two reasons:

(a) the shot was not fired whilst the prisoner had lost his self control. Rather, it was fired after he had threatened to shoot and the deceased did not retreat;

(b) the behaviour of the deceased was not such in my opinion as could have caused an ordinary person in the position of the accused to so lose his self control as to form the requisite intent for murder.

38 For the reasons and on the findings I have expressed, the prisoner is to be sentenced for the crime of manslaughter in accordance with the first of the approaches that was available to the jury for such a verdict, as identified in para 28(i) above. The Crown failed to prove that the prisoner did not believe that what he did was unnecessary in his self defence.

39 In assessing the objective gravity of this crime of manslaughter, I accept that the prisoner is to be regarded as having believed that the shooting was necessary to defend himself, and I take into account all the events that preceded the shooting, including that the prisoner had been punched and kicked, that his threat to use the gun did not discourage the deceased and that the deceased was apparently having the better of the encounter in the doorway until the firing of the fatal shot. However, to use this weapon in the manner in which it was used was not a reasonable response even in the circumstances as the prisoner perceived them. The community cannot condone the use of guns, and there is a need to deter not only the prisoner but others from their use.

40 Mr Lucas submitted that I should find that the weapon came into the prisoner’s possession after the encounter first began. He relied upon the evidence of Mr Andrews referred to in para 24 above. That evidence is to be considered with the circumstance that the police found pieces of broken plastic on the roadway consistent with being part of a firearm grip for a type of firearm that could have been used to fire the shots. There were two cartridge cases found in the street and ballistics evidence indicated that these cartridges could have been ejected from a weapon of a type that would have had a handgrip consistent with the pieces of plastic discovered on the road. There were no other witnesses whose evidence was introduced at the trial who saw the prisoner take possession of the gun after the fighting began notwithstanding the number of bystanders who saw events unfolding. Indeed, Moses Ekevati said he was running with the deceased in pursuit of the prisoner when he first saw the prisoner pull the gun from his trousers (T 349). Kevin Brown said that he saw the gun drawn from the prisoner’s trousers – from the centre of his trousers at belt level, not from his pocket (T 376).

41 I have reflected upon the submission made by Mr Lucas that I should find the prisoner first gained possession of the weapon after the encounter began. Mr Andrews did not see the prisoner put the weapon in his trousers or draw it from there at any stage, and in this respect his evidence differs from that of Moses Ekevati and of Kevin Brown, and I had the advantage of assessing the latter two witnesses as they gave their evidence. Whilst the broken plastic found on the road is consistent with Mr Andrews’ account of what he saw, I am unable to find as a probability that the weapon that the prisoner used first came into his possession in the manner described by Mr Andrews. I do however approach this matter on the basis that there was no pre planning of this crime, whether the prisoner had the gun in his possession before the fighting began or not. I am concerned to impose punishment for the use of the weapon with its consequences, rather than for the possession of it.

42 In assessing the objective gravity of the crime, I must bear in mind that a human life has been taken and that a weapon was used to take it.

The second count

43 The verdict of the jury on the second count establishes that the jury was satisfied beyond reasonable doubt:

(i) that the prisoner fired the first shot;

(ii) that he did so maliciously;

(iii) that he did so with intent to do grievous bodily harm;

(iv) that he was not acting at the time in self defence or in defence of anyone else.

44 The most incriminating account of the circumstances of the firing of the first shot (particularly as to element (iii) above) seems to me to be found in the evidence of Mr Andrews who, of course, the jury did not have the advantage of seeing or being tested in cross examination. Be that as it may, I must give effect to the finding of the jury and the legislature has made it plain that this offence is in a category to be regarded very seriously. Section 33A(1) provides for a maximum penalty of fourteen years imprisonment for this category of offence. As with the crime of manslaughter, I approach this count on the basis that there was no pre planning, whether the prisoner had the weapon in his possession from the outset or not. I also take into account that the shot was fired after the prisoner had been kicked and punched and when he was being pursued. Fortunately, no person was injured when this shot was fired.

45 I turn to the subjective features of this case.

46 The prisoner was born on 14 July 1962 in Romania. He told the author of the pre sentence report that he had a dysfunctional childhood marred by his father’s alcoholism and physical abuse. His parents divorced when he was fourteen years of age and he came to Australia in 1980 when he would have been twenty years of age. He was dealt with in the Court of Petty Sessions in Wollongong for relatively minor offences in the early 1980s and in 1991 he pleaded guilty to a mid range PCA offence, but until the present the prisoner has committed no other offences. Certainly the prisoner’s record is not to be regarded as unfavourable for present purposes.

47 Moreover, there has been a very formidable body of evidence introduced by way of testimonials as to the good character of the prisoner, and I take account of this material.

48 The prisoner has been in a relationship with his current de facto wife for some nineteen years. His de facto wife, Ms Jennifer Dunn, gave evidence of her relationship with the prisoner. There is one child of the union, Andre, who suffers from cerebral palsy. Andre was born on 17 June 1991. In addition to that disability the son has recently been diagnosed with dystonia, a rare form of muscular disorder. Ms Dunn said that the prisoner pursued employment as a scaffolder and rigger but once it was appreciated that the son would need very extensive care, it was decided that the prisoner, whose employment was less remunerative than that of Ms Dunn, would become the full time carer and Ms Dunn would pursue remunerative employment. According to Ms Dunn, those roles were pursued until the time that the prisoner went into custody following the verdict of the jury.

49 Ms Dunn said that she will be standing by the prisoner, and I accept that this is so. I also accept the evidence of the witness to the effect that their son and the prisoner have a very close relationship and that the son is very dependent upon his father. I accept that Andre misses his father deeply. As a consequence of the prisoner’s imprisonment, Ms Dunn has had to give up her employment and to assume a full time role caring for her son. I have no doubt that the prisoner’s imprisonment will cause financial hardship to his wife and child, as well as acute emotional distress, which will, doubtless, be shared by the prisoner himself.

50 Mr Ben Patynowski is an engineering surveyor with the Roads and Traffic Authority who has known the prisoner for twenty years, and he gave evidence concerning that association, and his favourable assessment of the prisoner as a loving husband and a very effective caregiver of his son.

51 One puzzling feature that arises from the evidence of Mr Patynowski is that according to him the prisoner has been pursuing employment at night as a bouncer, working in a club. That does not accord with the evidence of Ms Dunn. Nor does it accord with the history taken by the probation and parole officer for the report tendered to the Court as Exhibit B. The Court has not had the benefit of evidence from the prisoner.

52 The prisoner was assessed by Ms Robilliard, psychologist, and Ms Robilliard has concluded her report with this expression of opinion:

“The client has no significant criminal history nor are there any indicators in his personal life and habits that suggest unstable, antisocial or aggressive behaviour. He appears to have a happy marriage and a very responsible attitude to his roles as partner and parent. His work history has been similarly without incident. His involvement in the offence appears therefore, to be out of character. Georghe maintains that he acted to defend himself against an aggressive attack and that he feared for his life.”

53 Having regard to the psychological assessment, the evidence of Ms Dunn and the other evidence of good character before me, I do accept that the commission of these offences for which the prisoner is to be sentenced was out of character, although the prisoner has expressed no contrition for what happened, and has not sought to explain to the Court why he acted as he did.

54 On my assessment of the evidence in this case, the prisoner’s prospects of rehabilitation appear to be good, but the prisoner faces his first term of imprisonment, and it will be for a significant period. In my opinion, he will require and benefit from the opportunity of an extended period of supervision when he is released, and I am satisfied therefore that there are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act, 1999.

55 The maximum penalty for the crime of manslaughter is twenty-five years imprisonment. However, as has been repeatedly pointed out, because the circumstances in which this crime can be committed vary so much, it is not possible to define a narrow range in which to set an appropriate sentence. So much depends upon the particular circumstances. In R v Blacklidge (unreported, NSWCCA, 12 December 1995) Gleeson CJ, with whom the other members of the court agreed, said (at p 4):

“It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees 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.”

See also R v Troja (unreported, NSWCCA, 16 July 1991), R v Morabito (1992) 62 A Crim R 82, R v Alexander (unreported, NSWCCA, 24 February 1995) and R v Maguire (unreported, NSWCCA, 30 August 1995).

56 The Crown has provided some sentencing statistics, but I find only very limited assistance by reference to those statistics. Mr Lucas rightly submitted that it is too early after the introduction of s 421 of the Crimes Act for statistics to reflect the impact of s 421(2) on the range of sentences for manslaughter.

57 The Crown referred to the matter of Maguire (supra) as affording some indication of the upper limit of the sentencing range. In that case the sentence imposed was effectively one of ten years with a minimum term of eight years. The Crown categorised the facts in Maguire as being more serious than those in the present case. Maguire was a case in which death was occasioned by the discharge of a firearm. The offender went away from the eventual crime scene to equip himself with a rifle, and the shooting occurred after some struggle. However, it was a case in which self defence had been disproved, and the offender was sentenced for manslaughter for causing death by unlawful and dangerous act, and I do not find the decision to be particularly helpful. A more recent case I have considered is R v Papandrea [1999] NSWSC 978, and on appeal [2000] NSWCCA 499. In that case the sentence imposed was one of nine years penal servitude with a minimum term of six years. That sentence was imposed under the Sentencing Act 1987, and was in respect of a shooting causing death, but again, as in Maguire, it was a case of death by unlawful and dangerous act. Indeed, I do not consider it to be a useful exercise really to review other sentences here, because each case depends so much on its own facts and circumstances. This is so whether the case is one of voluntary manslaughter or of involuntary manslaughter.

58 Mr Lucas submitted that this prisoner’s culpability was reduced because implicit in the verdict is the acceptance that the prisoner believed that what he did was necessary to defend himself. Of course this belief is a factor to be considered, but on the other hand the prisoner acted deliberately and recklessly, and his conduct was not a reasonable response in the circumstances as he perceived them. I must consider all the features of the case that bear on the assessment of the objective gravity of this crime.

59 Whilst I take into account all the favourable subjective features of this case that I have reviewed, a human life has been taken and I cannot ignore the objective gravity of this crime of manslaughter and the need to impose a sentence which duly reflects such objective gravity: see R v Dodd (1991) 57 A Crim R 349. I must give due weight to considerations of retribution and denunciation, as well as deterrence. There is a need to deter not only the prisoner but others who might be tempted to use firearms unlawfully. Such use simply cannot be tolerated.

60 Since the prisoner is also to be sentenced for the offence under s 33A of the Crimes Act, I must heed what was said in Pearce v The Queen (1998) 194 CLR 610. I must have regard also to the principle of totality. Having regard to the nature of the two offences, and the closeness of their occurrence, I propose to set sentences partly concurrent and partly cumulative.

61 I pass sentence as follows:

62 For the crime first committed, the offence against s 33A of the Crimes Act, I impose a fixed term of imprisonment of eighteen months, to date from 17 June 2002 which was the date upon which the prisoner was first taken into custody. I do not set a non parole period because of the sentence I now impose for the crime of manslaughter.

63 For the crime of manslaughter, I sentence the prisoner to a term of eight years imprisonment to date from 17 June 2003 and to expire on 16 June 2011. In respect of that sentence I set a non parole period of five years to date from 17 June 2003. The first date upon which the prisoner is to be eligible for release upon parole is 16 June 2008.

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Last Modified: 10/23/2002