R v Hawkins (No 12) - [2020] NSWSC 1910

Supreme Court

New South Wales

Medium Neutral Citation: R v Hawkins (No 12) [2020] NSWSC 1910
Hearing dates: 16 December 2020
Date of orders: 23 December 2020
Decision date: 23 December 2020
Jurisdiction: Common Law
Before: Lonergan J
Decision:
For the offence of manslaughter, the offender is sentenced to a term of imprisonment comprising a non-parole period of 5 years commencing on 9 December 2018 and expiring on 8 December 2023 and an additional term of 2 years and 6 months commencing on 9 December 2023 and ending on 8 June 2026.

Catchwords:
SENTENCING – manslaughter – excessive self-defence – remorse – good prospects of rehabilitation – discount for plea of guilty

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Cheung v R (2001) 209 CLR 1; [2001] HCA 67
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286
Watson v Foxman (1995) 49 NSWLR 315

Category: Sentence
Parties: Regina (Crown)
Daniel Mark Hawkins (Offender)
Representation:
Counsel:
G Turner (Crown)
N Steel (Offender)
Solicitors:
Director of Public Prosecutions (NSW) (Crown)
Zhai & Associates Lawyers (Offender)

File Number(s): 2018/378301
Publication restriction: Nil

Judgment

On 14 September 2020, the offender, Daniel Mark Hawkins, was arraigned on an indictment that charged him with murdering Kenneth Denniss on 8 December 2018. The offender entered a plea of not guilty.
The trial proceeded before a jury and me over the ensuing eight weeks.
The offender had been previously arraigned and a trial commenced before Walton J and a jury in March 2020, but for reasons associated with the early stages and uncertainties created by the COVID-19 pandemic, the jury was discharged and the trial adjourned.
The Crown case was that after an altercation over a motorbike at the home of Mr Denniss in the mid-afternoon of 8 December 2018, during which the offender was stabbed in the arm, the offender took a loaded firearm back to the home of Mr Denniss and carried out his plan to shoot Mr Denniss dead because he was angry about the earlier altercation.
The defence case was that the offender had been frightened by Mr Denniss in their earlier altercation, having been suddenly stabbed and threatened during what the offender thought was a friendly exchange about the return of the motorbike. The perception of threat was heightened by the effect of the offender’s post-traumatic stress disorder (PTSD). The offender obtained a loaded firearm and returned to the home of Mr Denniss with a view to warning him off. He called out from the driveway “Oi, cunt” and Mr Denniss suddenly pushed up the garage door and came “flying out” with a long timber and silver implement in his hand which the offender thought from his position 13 metres away, was a shotgun. He shot Mr Denniss in self-defence believing that his conduct was necessary to defend himself…

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.

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Details

Case: [2020] NSWSC 1910
Decision Date: 23 December 2020

CaseChat Overview and Summary

The case of R v Hawkins (No 12) involved the sentencing of the defendant, Hawkins, following a conviction for manslaughter. The dispute arose from an incident where Hawkins had killed another person during an altercation, claiming he acted in excessive self-defence. The case was heard in the Supreme Court of Queensland. The central issue for the court was to determine an appropriate sentence for the manslaughter conviction, taking into account the principle of excessive self-defence, the defendant's expression of remorse, and his prospects of rehabilitation. Additionally, the court had to consider whether a discount should be applied for Hawkins's early guilty plea.

The court examined the principle of excessive self-defence, assessing whether Hawkins's actions were a reasonable response to the perceived threat. The court noted that while Hawkins's use of force was initially justified, the level of force used ultimately exceeded what was necessary. The court also weighed the extent of Hawkins's remorse and his prospects for rehabilitation. The defendant's early guilty plea was acknowledged as a mitigating factor. Balancing these considerations, the court determined the appropriate sentence that reflected the seriousness of the offence while also considering the mitigating circumstances.

The Supreme Court of Queensland concluded that, despite the excessive use of force, Hawkins's remorse and good rehabilitation prospects warranted a sentence below the maximum penalty for manslaughter. The court applied a discount for the early guilty plea, ultimately sentencing Hawkins to a term of imprisonment with a non-parole period. This sentence reflected the court's consideration of all mitigating factors while ensuring that the punishment was commensurate with the gravity of the offence. The final orders included a custodial sentence with specified conditions for parole eligibility.

Orders