R v JM (sentence) - [2024] NSWSC 1345

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v JM (Sentence) [2024] NSWSC 1345
Hearing dates: 11 October 2024
Date of orders: 25 October 2024
Decision date: 25 October 2024
Jurisdiction: Common Law - Criminal
Before: Dhanji J
Decision:
(1)   JM is convicted of the manslaughter of Liam.
(2)   For the offence of manslaughter, you are sentenced to imprisonment for a term of 5 years commencing on 29 May 2022. I set a non-parole period of 2 years and 9 months commencing on that date and expiring on 28 February 2025. The balance of term is 2 years and 3 months and is due to expire on 28 May 2027.
(3) Pursuant to s 19(1) and s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW), I direct the sentence be served as a juvenile offender up until the offender attains the age of 21.
(4) Pursuant to s 25C(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), I advise you of the existence of that Act and the fact that it applies to you and to this offence. I direct your legal team to explain the significance of this fact to you.
(5)   In accordance with regulation 8(d) of Child Protection (Offenders Registration) Regulation 2015 (NSW) I direct that the Secretary of the Department of Justice give notice to the offender for the purposes of s 4 of the Child Protection (Offenders Registration) Act 2000 (NSW).

Catchwords:
CRIME – sentence – manslaughter – excessive self-defence – offender a young person at the time of the offence – trial by judge alone – fatal stabbing – confrontation between young people – KFC restaurant – melee – tragic loss of life – where deceased exhibited hostility towards offender –deceased armed with knuckledusters – offender did not initiate confrontation – offender had no interest in fighting the deceased - offender outnumbered by adversaries – offender believed he was going to be killed – chaos – clamorous noise – extreme situation – real threat to the offender – no intention to kill – where offender suffers from cognitive impairment – FASD – ADHD – youth and lack of maturity – moral culpability significantly reduced – unblemished criminal record – very good prospects of rehabilitation – whether sentence to be served as a juvenile offender – convicted – sentence imposed

Legislation Cited:
Crimes Act 1900 (NSW)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Child Protection (Offenders Registration) Regulation 2015 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)

Cases Cited:
R v JM (Verdict) [2024] NSWSC 773
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Paterson v R [2021] NSWCCA 273
R v Stanley (No 2) [2024] NSWSC 74

Category: Sentence
Parties: Rex (Crown)
JM (Offender)
Representation:
Counsel:
B Campbell SC (Crown)
J Watts (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Aboriginal Legal Service…

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 JM (sentence)

Details

AGLC: R v JM (sentence) [2024] NSWSC 1345
Case: [2024] NSWSC 1345
Decision Date: 25 October 2024

CaseChat Overview and Summary

In this case, the offender, JM, was convicted of manslaughter following a fatal stabbing incident in a KFC restaurant. JM, who was a young person at the time of the offence, was involved in a confrontation with a group of people, one of whom was fatally stabbed. The case was heard by a judge alone, and the primary legal issue was whether JM's actions constituted excessive self-defence or if he was guilty of manslaughter. The court had to consider JM's state of mind, his cognitive impairments, and the chaotic circumstances of the confrontation in determining the appropriate sentence.

The court examined whether JM's actions were a response to an immediate and real threat, and if he had the capacity to form the requisite intent for murder or manslaughter. JM had no intention to kill, and while he was outnumbered, he believed he was in imminent danger of being killed. The court also considered JM's cognitive impairments, including foetal alcohol spectrum disorder and ADHD, which impacted his ability to assess the situation and respond appropriately. Additionally, JM's youth, lack of a criminal record, and prospects for rehabilitation were factors weighed in determining an appropriate sentence.

After considering the circumstances of the offence and the mitigating factors, the court found that JM's moral culpability was significantly reduced. The court imposed a sentence to be served as a juvenile offender, taking into account JM's age at the time of the offence, his cognitive impairments, and the chaotic and extreme nature of the confrontation. The court concluded that while the loss of life was tragic, JM's sentence should reflect his reduced moral culpability and the potential for rehabilitation.

Orders