15-17 June 2010; 2 August 2010 & 6 September 2010.
JUDGMENT DATE :
16 September 2010
JURISDICTION:
COMMON LAW
JUDGMENT OF:
Davies J
DECISION:
Sentenced to a non-parole period of imprisonment of 2 years commencing on 9 October 2009 and expiring on 8 October 2011, and the balance of the term of 2 years 3 months commencing on 9 October 2011 and expiring on 8 January 2014.
CATCHWORDS:
CRIMINAL LAW - sentence - manslaughter - excessive self-defence and provocation - deceased killed by knife that he brought to the scene.
Office of the Director of Public Prosecutions (Crown) Campbell, Paton & Taylor (Offender)
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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
DAVIES J
16 SEPTEMBER 2010
2008/68340 R V HORTON
REMARKS ON SENTENCE
1 Lucas William Gregory Horton (the offender) was indicted on a charge that he murdered David Wayne Betwell at Blayney on 7 December 2008. He initially pleaded not guilty to that offence.
2 On 16 June 2010, the second day of trial, after the jury had been empanelled but prior to the Crown opening the case to the jury, the offender requested to be re-arraigned. He then pleaded not guilty to murder but guilty to manslaughter and the Crown Prosecutor accepted that plea in discharge of the indictment. The plea was entered and accepted principally on the basis of excessive self-defence but the Crown Prosecutor acknowledged that there had to be an element of provocation in the matter as well.
Facts
3 The Agreed Statement of Facts disclosed the following. At about 3.25am on Sunday 7 December 2008 Oscar Zideluns left his Blayney property and drove along Greghamstown Road. He came upon a white Ford sedan parked near the entrance to a quarry. The driver's door was open and the interior light was on. He noticed a man sitting in the driver's seat with his head slumped forward. Mr Zideluns did not stop, assuming the man was sleeping.
4 At about 8.45am that same morning Anthony Laing rode his pushbike from Blayney along Greghamstown Road on…
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
AGLC
R v Horton [2010] NSWSC 1007
Case
[2010] NSWSC 1007
Decision Date
CaseChat Overview and Summary
The appellant, Horton, was convicted of manslaughter in the Supreme Court of Victoria and appealed against both his conviction and sentence. The victim, deceased, brought a knife to a confrontation with the appellant, during which the appellant stabbed the deceased, resulting in his death. The appellant argued that he was acting in excessive self-defence and that the deceased's actions provoked him to such an extent that he lost self-control. The appeal was heard by the Court of Appeal, which was required to determine whether the trial judge had erred in law in relation to the appellant's defences of excessive self-defence and provocation.
The court considered whether the trial judge had correctly applied the law in relation to the appellant's defences. In relation to excessive self-defence, the court noted that the appellant had acted in response to an attack by the deceased, who had brought a knife to the confrontation. The court found that the trial judge had correctly instructed the jury that the appellant's use of force had to be proportionate to the threat posed by the deceased. The court also considered the appellant's defence of provocation, which required the appellant to establish that the deceased's actions had deprived him of self-control. The court found that the trial judge had correctly instructed the jury that the appellant's response had to be reasonable in the circumstances, and that the jury was entitled to consider the appellant's subjective perception of the threat posed by the deceased. The court ultimately found that the trial judge had not erred in law in relation to the appellant's defences.
The court also considered the appellant's sentence, which was a term of imprisonment with a non-parole period of six years. The court noted that the appellant had a previous criminal history and that the offence had involved the use of a weapon. The court found that the sentence was appropriate in the circumstances, taking into account the appellant's defences and the circumstances of the offence. The appeal against sentence was dismissed.
The court dismissed the appeal against conviction and sentence. The appellant's conviction for manslaughter and his sentence of imprisonment with a non-parole period of six years were upheld.