R v Milan Tomac No. SCCRM 95/596 Judgment No. 5638 Number of Pages 13 Criminal Law (1996) 67 Sasr 376

[1996] SASC 5638

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL PRIOR(1), DUGGAN(2) AND DEBELLE(3) JJ

CWDS
Criminal law - jurisdiction, practice and procedure - general principles - appellant found guilty of manslaughter - use of firearm against intruders at his premises - directions on self-defence considered - discussion as to appropriate direction on criminal negligence in the content of self-defence under Criminal Law Consolidtaion Act s15(2). Nydam v R (1977) VR 430 at 445; Wilson v R (1992) 174 CLR 313 at 333, discussed.

Criminal law - jurisdiction, practice and procedure - judge's summing-up - held that the trial judge put the defence case adequately and fairly to the jury. R v Byczko (1982) 30 SASR 578 at 587; Domican v R (1992) 173 CLR 555 at 561, discussed.

Criminal law - jurisdiction, practice and procedure - judgment and punishment - appellant a first offender - sentence of seven years (non-parole period three and a half years) manifestly excessive - reduced to sentence of five years (non-parole period two years).

HRNG ADELAIDE, 16 April 1996 #DATE 29:5:1996 #ADD 4:7:1996

Counsel for appellant:     Mr D Peek

Solicitors for appellant:    D H Peek

Counsel for respondent:     Ms W Abraham

Solicitors for respondent: DPP (SA)

ORDER
Appeal against conviction dismissed. Appeal against sentence allowed.

JUDGE1 PRIOR J I agree with the reasons published by Justice Duggan.

2. The appeal against conviction should be dismissed, that against sentence allowed. I agree with the sentence proposed by his Honour.

JUDGE2 DUGGAN J A jury found the appellant not guilty of murder but guilty of manslaughter in relation to the shooting of a 26 year old man, Anthony Mark Wilson. The appellant was charged with Wilson's murder following an incident which took place on 18th March 1996 at Para Hills. It was not disputed at the trial that the deceased was one of seven men who had gone to the appellant's property to steal some marijuana which was growing in the backyard. The appellant confronted the men when the theft was about to take place. He then went inside the house and returned with a rifle. The rifle discharged while it was being held in the appellant's hands and the deceased was hit in the head by the bullet as he was crouching outside the back fence to the property. The prosecution alleged that the appellant fired the rifle intentionally. It was further argued that he fired the shot at one of the other men who had invaded his property and that he hit the deceased instead.

2. The appellant gave evidence denying these assertions. He said that after he had been rabbit shooting some time before this incident he had removed the magazine from the rifle, but had not checked to see whether there was a live round in the breech. He said that on the evening of the shooting he heard noises outside the house and went to investigate. An argument with the deceased and his companions ensued and they threw rocks in the direction of the appellant's wife. The appellant said in evidence that he panicked and went inside. He picked up the rifle and came back outside. He pointed it towards one of the men and more rocks were thrown by them, this time at him.

3. The appellant said that he then walked to another position in the yard and he held the gun so that his right hand was outside the trigger guard. According to the appellant's version he had the rifle pointing in an upwards direction but at this stage some more rocks were thrown. At this he ducked forward, the rifle which previously had been held at a position 45 degrees above the horizontal was lowered quickly and it discharged by way of reflex action with his finger coming into contact with the trigger and pulling it.

4. The learned trial judge directed the jury that they could not find the appellant guilty of either murder or manslaughter if the rifle discharged accidentally. He explained the elements of the offence of murder and the various bases upon which a verdict of guilty of manslaughter could be returned. Although the appellant did not claim that he had fired the rifle in self-defence, the learned trial judge directed the jury on this issue and his directions included an explanation as to the circumstances in which they could bring in a verdict of guilty of manslaughter under the self-defence provisions contained in s15 of the Criminal Law Consolidation Act.

5. The first ground of appeal complains that the learned trial judge failed to direct the jury adequately on the issue of self-defence and it was submitted that the verdict of guilty of manslaughter should be set aside because it may have been based on the inadequate directions.

6. The relevant part of s15 provides as follows:
    "15. (1) Subject to subsection (2) -
    (a) a person does not commit an offence by using force
    against another if that person genuinely believes that the
    force is necessary and reasonable -
     (i) to defend himself, herself or another; or
     (ii) to prevent or terminate the unlawful imprisonment of
     himself, herself or another;
    (b) (irrelevant for present purposes)

(2) Where -
    (a) a person causes death by using force against another
    genuinely believing that the force is necessary and
    reasonable for a purpose stated in subsection (1); and
    (b) that person's belief as to the nature or extent of the
    necessary force is grossly unreasonable (judged by reference
    to the circumstances as he or she genuinely believed them to
    be); and
    (c) that person, if acting for a purpose stated in
    subsection (1)(b), does not intend to cause death and is not
    reckless as to whether death is caused,
    that person may not be convicted of murder but may if he or
    she acted with criminal negligence be convicted of
    manslaughter."

7. The learned trial judge provided the jury with a memorandum which set out the core of his directions on the matters of law relevant to the case. The section dealing with self-defence reads as follows:
    "LAWFUL/UNLAWFUL

If the Crown has proved that act was voluntary, and done
    with an intent for murder, the Crown also must prove beyond
    reasonable doubt that the killing was unlawful.

A killing is not unlawful if it occurs in the course of
    lawful self defence.

The law says that where a person causes death by using force
    against another genuinely believing that the force is
    necessary and reasonable for the purpose of defending
    himself, his wife or his property, he is not guilty or
    murder.

If although genuinely believing that the force used is
    necessary and reasonable to defend himself, his wife or his
    property, or to prevent or remove persons committing
    criminal trespass, the Crown has proved beyond reasonable
    doubt that the accused's belief as to the nature or extent
    of the necessary force is grossly unreasonable, judged by
    the (sic) reference to the circumstances as he genuinely
    believes them to be, he is guilty of manslaughter if, and
    only if he acted with criminal negligence."

8. In his summing-up the learned trial judge expanded on these written directions. He began his explanation of the way in which manslaughter could arise for consideration by saying:
    "I come now to deal with how manslaughter can arise out of a
    self-defence situation. If, although the accused genuinely
    believed that the force used was necessary and reasonable to
    defend himself, the next question is whether the accused's
    belief as to the nature or extent of the necessary force was
    grossly unreasonable, judged by reference to the
    circumstances as the accused genuinely believed them to be,
    then he is guilty of manslaughter if and only if at the same
    time in using the force that he did he acted with criminal
    negligence.

Can I take you again to the memorandum. You will see under
    'Lawful or Unlawful' I have set out the matters to which I
    have just referred. Firstly, if the Crown has proved the
    act was voluntary, and done with an intent for murder, the
    Crown also must prove, that is, Mr White must prove beyond
    reasonable doubt the killing was unlawful. The second
    proposition, the killing is not lawful if it occurs in the
    course of lawful self-defence. Thirdly, the law says that
    where a person causes death by using force against another
    genuinely believing that the force is necessary and
    reasonable for the purpose of defending himself, his wife or
    his property, he is not guilty of murder. Then next, if,
    although genuinely believing that the force used is
    necessary and reasonable to defend himself, his wife or his
    property, or to prevent or remove persons committing
    criminal trespass, the Crown has proved beyond reasonable
    doubt that the accused's belief as to the nature or extent
    of the necessary force is grossly unreasonable, that is,
    judged by reference to the circumstances as the accused
    genuinely believed them to be, then the accused in those
    circumstances is guilty of manslaughter, but only if he
    acted with criminal negligence."

9. His Honour then explained some of the terms which he had just used. He expanded on the matter of genuine belief and the distinction between "necessary" and "reasonable" force. He then explained the relevance of assessing whether the appellant's belief as to the nature and extent of the necessary force was grossly unreasonable. Finally he dealt in more detail with the concept of criminal negligence.

10. The first complaint levelled at these directions is concerned with the issue raised by s15(2)(b). Proof of the requirement there referred to is essential in order to establish the offence of manslaughter in accordance with the section. It assumes that the accused had a genuine belief that the force used was necessary and reasonable. No criticism is made of his Honour's directions in that regard. Section 15(2)(b) then requires proof that the accused's belief on the topic was grossly unreasonable. This must be assessed by what the accused believed the circumstances to be.

11. It was argued that at least in one part of the summing-up the trial judge's explanation of s15(2)(b) was defective. In that passage his Honour said:
    "I direct your attention to the fourth paragraph under
    'Lawful or Unlawful' on p.2. I will explain it to you
    again. If the accused, although genuinely believing that
    the force used was necessary and reasonable to defend
    himself or his wife or his property, had a belief as to the
    nature or extent of the necessary force which was grossly
    unreasonable, judged by reference to the circumstances as he
    genuinely believed them to be, the accused will be guilty of
    manslaughter, but again, only if he acted, in using such
    force, with criminal negligence.

The first thing to say about that, is that the question
    whether the accused's belief as to the nature or extent of
    the necessary force, and as to whether it was grossly
    unreasonable judged by reference to the circumstances as the
    accused believed them to be, is a matter for you ladies and
    gentlemen. You have to decide whether his belief as to the
    nature or extent of the necessary force was grossly
    unreasonable.

That is not a matter of his belief, that is a matter for
    your judgment. The accused's belief is a relevant
    consideration as to the circumstances against which you have
    to judge them, but it is your assessment of what is grossly
    unreasonable that matters in deciding the question of
    whether the belief as to the nature or extent of the
    necessary force was grossly unreasonable."

12. Mr Peek, for the appellant, argued that these directions placed undue emphasis on the objective component of the subsection and distracted the attention of the jury from the subjective component deriving from the appellant's own belief. I cannot agree. The learned trial judge commenced his directions on this issue by directing the attention of the jury to the memorandum where, in my view, the law was correctly stated. In the first paragraph of the directions which I have just quoted it was made clear that the assessment of whether the appellant's belief was grossly unreasonable fell to be considered by reference to the circumstances as the appellant genuinely believed them to be.

13. However particular criticism was directed towards the next two paragraphs of the quoted passage. Again I think the jury were properly directed. Mr Peek contended that undue emphasis was placed upon the objective component because of the statement "That is not a matter of his belief, that is a matter for your judgment". But when read in context it is plain that this was a reference to the assessment which the jury was required to make as to whether the appellant's belief was grossly unreasonable, the issue addressed in the previous sentence. Immediately before and after the impugned passage, reference is made to judging this belief by reference to the circumstances as the appellant believed them to be.

14. Mr Peek submitted that the jury should have been directed along the following lines: "On the facts which are accepted as proved beyond reasonable doubt, what is the most serious set of circumstances that could have been envisaged by the accused in the circumstances in which he found himself?"

15. In addition, said Mr Peek, the jury should have been told that if the accused genuinely, though wrongly, believed the circumstances to be more grave than they were then "a comparison between the actual force proven to have been used by the appellant on the one hand and the scenario he believed himself to be facing on the other would not produce the result that his use of force was grossly unreasonable within s15(2)".

16. The difficulty confronting a trial judge in directing a jury on the confusing combination of factors to be considered under s15 has been the subject of previous comment by this court. (R v Gillman (1994) 62 SASR 460 at 466; R v Harris (1995) 64 SASR 85 at 102). However, in relation to the direction required by s15(2)(b), I think the learned trial judge was wise to stay close to the wording of the section. The task of assessing the appellant's belief against the circumstances as he believed them to be was explained adequately to the jury and I am firmly of the view that the directions for which Mr Peek argued would have done little more than confuse the issue in the minds of the jurors.

17. The facts to which these directions applied were obvious to the jury and no further explanation was needed on the element required by s15(2)(b). Furthermore I think it was appropriate to explain the application of the onus and standard of proof in relation to the self-defence issue in the manner adopted by the trial judge.

18. I should add that our attention was drawn to what appears to be a typographical error in the written directions set out in the memorandum in that the word "the" is interposed between the words "judged by" and "reference". However this did not alter the meaning of the requirement of s15(2)(b) which was being explained.

19. The appellant complained of a further matter concerning the directions on self-defence. It was argued that the jury were not adequately directed as to the requirement in s15(2) that the prosecution must prove the appellant acted with criminal negligence. In the memorandum the learned trial judge explained the various elements of manslaughter of which proof was required by s15(2), including the requirement of criminal negligence. He explained criminal negligence in the following terms:
    "CRIMINAL NEGLIGENCE means that when an act falls so far
    below the standard of care which a reasonable person would
    have exercised, and which involves such a high risk that
    death or really serious bodily harm would follow, then that
    merits criminal punishment. If you think that the
    prosecution has shown criminal negligence beyond reasonable
    doubt you may convict the accused of manslaughter."

20. In summing-up to the jury his Honour said:
    "Ladies and gentlemen, I was just about to move to the
    concept of criminal negligence which is mentioned at the
    bottom of p.2 of the memorandum that you have. All of us in
    our lives at some stage engage in activity which might cause
    some harm to some other people and, of course, we are all
    under an obligation to exercise reasonable care to avoid
    causing harm to some other person.

If you go out shooting, for example, and you think that
    there may be people in the neighbourhood where you are
    shooting, you have got to exercise reasonable care to make
    sure that you don't fire a gun which might injure that
    person. If you go out onto the road you have to drive your
    motor vehicle and exercise reasonable care for any other
    person using the roadway or the highway. That is an
    imposition imposed upon us by law.

Negligence, as a rule, only gives rise to what is called
    civil negligence. People would sue you for damages for
    injuries caused by your negligence, but there are some acts
    of negligence which the criminal law recognises, and they
    recognise those acts of negligence by imposing fines and the
    like for any departure from the appropriate standard of
    care. For example, some road traffic offences, driving
    without due care or speeding or something of that kind, are
    negligent offences, and the criminal law recognise them by
    imposing fines.

None of that is what the law understands to be criminal
    negligence. There is a point, however, at which a failure
    to exercise the appropriate care which we are all bound to
    exercise, to prevent harm to others, is so grave that we can
    say it goes beyond a mere matter of compensation, and a fine
    in the traffic court. It is really a criminal offence. It
    is so grave that it deserves to be punished by the sanctions
    of the criminal law, and it is a judgment for a jury to make
    when that behaviour has been reached. First of all, it is a
    judgment of the jury as to whether there is negligence, that
    is, a failure to exercise reasonable care for the safety of
    others, which we are all bound to exercise, and then
    secondly, whether that departure from that standard of care
    from the exercise of reasonable care should be punished by
    the criminal law because it is so grave, and therefore,
    recognises criminal negligence, and in this case,
    manslaughter."

21. It will be noted that in the memorandum the learned trial judge referred to conduct which involves a high risk that death or really serious bodily harm would follow. He did not repeat this formula in the summing-up and his failure to do so was criticised by counsel for the appellant.

22. The formula used in the memorandum follows along the lines of the test suggested by the Full Court of the Supreme Court of Victoria in Nydam v R
(1977) VR 430 at 445. Their Honours said in a joint judgment:
    "In order to establish manslaughter by criminal negligence,
    it is sufficient if the prosecution shows that the act which
    caused the death was done by the accused consciously and
    voluntarily, without any intention of causing death or
    grievous bodily harm but in circumstances which involved
    such a great falling short of the standard of care which a
    reasonable man would have exercised and which involves such
    a high risk that death or grievous bodily harm would follow
    that the doing of the act merited criminal punishment."

23. This test seems to have been approved by Mason CJ, Toohey and Gaudron and McHugh JJ in their joint judgment in Wilson v The Queen (1992) 174 CLR 313 at 333.

24. It would have been better if the learned trial judge had included a specific reference to "death or really serious bodily harm" in the summing-up proper. However the memorandum was part of the direction given to the jury and it was taken into the jury room by the jurors. The jurors were referred to the relevant part of the memorandum when his Honour came to discuss the concept of criminal negligence and the clear context in which the principles were being discussed was the risk to the deceased and the other intruders of death or really serious bodily harm by reason of the firing of a rifle.

25. Then Mr Peek criticised the learned trial judge's reference in his summing-up to a departure from the standard of care which is so grave that it "should be punished by the criminal law" and the like reference in the memorandum to conduct "that merits criminal punishment". Mr Peek said that such a direction was disapproved of in Andrews v DPP (1937) AC 576. However it is my view that the House or Lords did not consider that expressions of that type had no place in explaining the law relating to criminal negligence. Lord Atkin said (p583): "... nor do the ideas of crime and punishment in themselves carry a jury much further in deciding whether in a particular case the degree of negligence shown is a crime and deserves punishment."

26. In the present case the reference to criminal punishment was only part of the explanation of what is criminal negligence and was put forward in the course of distinguishing between civil and criminal liability and emphasising the degree of seriousness of the departure of the standard of care which is required. Similar explanations appear in the passage I have quoted from Nydam v R and also in Pemble v R (1971) 124 CLR 107 at 135.

27. It was argued that the analogy of a person going out shooting and owing a duty of care to those in the neighbourhood could have misled the jury. In my view this objection cannot be sustained. The example was used along with the example of a person driving a car to illustrate breaches of duty which would not amount to criminal negligence. The trial judge then proceeded to explain the nature of the far more serious class of conduct which could give rise to the commission of the offence of manslaughter by criminal negligence. Nor do I agree with the appellant's suggestion that there was a danger that the jury would place too much emphasis on the unfortunate result of the appellant's actions as opposed to evaluating the actions themselves, thus giving rise to the need for a warning against that line of reasoning. Mr Peek cited Akerele v The King (1943) AC 255 at 264 in support of that proposition. However that was a case involving the innoculation of thirty-six children over a period of time with a preparation which was tainted with poison. It appeared from the reasons of the judge sitting at first instance that he may have taken into account consequences which became apparent at a later date when considering whether a single instance of the administration of the preparation constituted criminal negligence. In the present case the jury's attention was focussed upon the appellant's conduct leading up to the firing of the rifle and there was no room for improper reasoning based on subsequent events.

28. In my view the law relating to self-defence, including the onus and statement of proof applicable to this issue, was adequately explained to the jury.

29. The next ground of appeal complains that the learned trial judge did not adequately put the defence case, or the considerations supporting it to the jury. It is, of course, an important requirement of fairness in a criminal trial that the case for the prosecution and the accused be accurately and fairly put to the jury. (Domican v The Queen (1992) 173 CLR 555 at 561.) The manner in which this is done depends very much on the circumstances of the particular case, but as King CJ said in R v Byczko (1982) 30 SASR 578 at 587:
    "I think that care should be taken to put the defence to the
    jury in a detached and dispassionate manner. Comment on the
    defence should form a part of the summing-up which is
    separate from the process of explaining to the jury the
    substance and legal implications of the defence."

30. In the present case Mr Peek put forward the broad complaint that, although the learned trial judge identified for the jury and discussed the major points relied upon by the appellant at the trial, he included in his discussion arguments against the acceptance of the defence arguments in relation to these issues. I have read the summing-up in the light of this criticism and considered the particular examples which Mr Peek gave to illustrate this complaint. Although his Honour made limited reference to some prosecution arguments in the course of his discussion of the defence case, he did so in a restrained manner while making it clear to the jurors that it was for them to assess the evidence and arguments. The summing-up bears no resemblance at all to that in the case of R v Mawson (1967) VR 205 referred to by Mr Peek. In that case it was stated that "in putting the defence case, the learned trial judge repeated salient features of the Crown case, which he had already put to the jury, and repeated those salient features of the Crown case by way of demolition of the defence as he was expressing it to the jury". (p209) Moreover the prosecution conceded on appeal that the trial judge had expressed his own view of the facts so strongly as to indicate his view that the applicant had no real defence to the charges. None of these criticisms apply to the present matter where the defence case was fairly and adequately put to the jury.

31. Another criticism made of this part of the summing-up was that the learned trial judge did not adequately direct the jury on the significance of the extent to which the deceased's companions who gave evidence were affected by alcohol and drugs at the time of the incident and the consequent effect this may have had on their reliability as witnesses. Nor, so it was argued, was the relevant evidence on this topic canvassed adequately in the summing-up.

32. Before discussing the evidence of this group of witnesses the trial judge told the jury that he would refer to the evidence of each of these witnesses "in relation to what they had drunk and what they had smoked, which might affect their credibility". It must have been perfectly clear to the jurors by this time that the effect of alcohol and drugs on witnesses at the time of the relevant events was a matter to be taken into account when assessing their reliability as witnesses. Apart from what the trial judge said to the jury the cross-examination made this clear. In any event it was a matter which, in the circumstances of the case, would have been self-evident to the jury. In this respect it is appropriate to bear in mind the following comments in the joint judgment of the majority of the High Court in Domican v The Queen (supra at 561):
    "This Court has said that it 'is hardly necessary to say
    that as a reason for granting a new trial, after a
    conviction in a criminal case, it is not enough that the
    presiding judge has not mentioned to the jury all the
    matters which were set up on behalf of the accused as
    affecting probabilities' Basto v The Queen (1954), 91 CLR
    628, at p. 637. Whether the trial judge is bound to refer
    to an evidentiary matter or argument ultimately depends upon
    whether a reference to that matter or argument is necessary
    to ensure that the jurors have sufficient knowledge and
    understanding of the evidence to discharge their duty to
    determine the case according to the evidence Reg. v Matthews
and Ford (1972) VR 3, at pp. 15-16. Consequently, the
    conduct of the case necessarily bears on the extent to which
    the judge is bound to comment on or discuss the evidence R v
Davies and Cody (No. 2), (1937) VLR 226, at pp. 236-237;
Reg. v Melville (1956), 73 WN (N.S.W.) 579. Discussion or
    comment which is justified or required in one case may be
    neither required nor justified when a similar case is
    conducted in a different way."

33. As for specific references to the evidence on this topic in the summing-up, the trial judge reminded the jury of the evidence of the witnesses Agius, Richards and Young as to their consumption of alcohol or drugs. The witness Newchurch denied that he had been drinking or smoking marijuana and, although the witness Sansbury's evidence on this aspect was not summarised by the trial judge, there was no suggestion in the evidence that he was appreciably affected by alcohol. The same applies to the witness Wanganeen. The trial judge did remind the jury that the blood alcohol level of the deceased had been taken and that they might conclude from Dr James' evidence "that the deceased was significantly affected by alcohol, and significantly affected by drugs, such that (sic) would have impaired his physical functioning and interfered with his cognitive and reasoning powers".

34. I have reached the conclusion that the directions on the assessment of the witnesses were adequate in the circumstances of the case.

35. Finally Mr Peek submitted that the learned trial judge should have given more extensive directions on a passage which his Honour quoted from the evidence of the interrogation of the investigating police officer. The direction given was as follows:
    "Ladies and gentlemen, Mr Mensforth also gave evidence that
    the accused was asked this:
    'How many shots did you fire?'
    The accused said 'Just the one'.
    Mr Mensforth said 'Was the magazine in the rifle or did you
    just load one into the breech of the rifle?'
    The accused said 'No, I had the magazine in the rifle, but
    then took it out after'.

That last statement, of course, was challenged by Mr Waye,
    and the challenge was put up on the basis that the notes he
    had made, that is Mr Mensforth had made, were made some 45
    minutes after the event, after the conversation with the
    accused, and that the notes were, in that respect,
    inaccurate and unreliable. That's a matter for you ladies
    and gentlemen. You might remember that Mr Waye asked Mr
    Mensforth to recall from memory what had been said. Whether
    you believe that is a matter that affects Mr Mensforth's
    reliability is a matter for you."

36. Mr Peek argued that, as this was a most important part of the case, the trial judge should have referred at the same time to the evidence of certain witnesses who stated that there was no magazine in the rifle at the time of the incident and that he should have said more as to the possibility of error on the part of the investigating officer in recording the conversation. In the passage which I have quoted the trial judge reminded the jury that the appellant's alleged answer to the police officer was challenged and they were also reminded of the argument as to how it might have been incorrectly recorded. The witnesses Sansbury, Agius and Newman had been asked in evidence about the magazine. They did not say categorically that there was no magazine in the weapon at the time the appellant produced it, but they said they did not see a magazine and agreed that they were familiar with rifles. Although his Honour did not remind the jury of that evidence at this point it was read to them by the defence counsel in the course of his final address and I do not think it was essential for the trial judge to refer to it in his charge to the jury.

37. For these reasons I am of the view that the appeal against conviction should be dismissed.

38. The appellant also has appealed against his sentence of imprisonment for seven years with a non-parole period of three and a half years. Under the truth in sentencing legislation neither the head sentence nor the non-parole period can be reduced by way of remission of sentence.

39. The finding by the jury that the appellant was not guilty of murder implies that there was no intention to kill or cause grievous bodily harm. It is unlikely that the jury concluded that this was an occasion of self defence and, in my view, the learned trial judge acted correctly in sentencing the appellant on the basis that the appellant had committed manslaughter by an unlawful and dangerous act. In the summing-up it was explained to the jury that the unlawful act could be constituted by an assault consisting of a firing of the rifle in order to put the intruders in fear while they were at the back of the fence or in the gully beyond the fence. The jury were also told that the firing of the rifle would have to carry with it an appreciable risk of serious injury. The memorandum which was given to the jury explained that the appellant could be found guilty of manslaughter despite having a genuine belief that it was necessary and reasonable to fire the shot to put the men in fear.

40. If these directions and the verdict are considered in the light of the evidence it must be acknowledged that the appellant was faced with a situation in which a group of men trespassed on his property in order to steal the marijuana plants; that some of them were affected by liquor; that their intrusion gave rise to an altercation in the backyard of the house between the appellant and some of the men; that the appellant went inside, loaded the rifle, carried it outside and fired a shot into the back fence intending to scare the men; and that the deceased who was at that stage crouching behind the fence and could not be seen by the appellant, was hit by the projectile which penetrated the fence. It was also claimed by the appellant that someone in the group threw rocks in the direction of him and his wife before the shot was fired although his Honour did not make a finding on this for sentencing purposes.

41. In his sentencing remarks the learned trial judge said:
    "Notwithstanding your previous good character and personal
    history, it is necessary that the term of imprisonment be
    not insubstantial to send a clear warning to householders
    that they are not entitled to use excessive force in either
    their defence or the defence of property. In particular,
    the sentence needs to make clear that the law treats very
    seriously those who will shoot someone who has fled from
    their property."

42. Whilst not underestimating the importance of warning against excessive use of force in these circumstances, it should nevertheless be borne in mind that, on the jury's finding, this was not a deliberate shooting of a person; it was a shooting without an intention to hit the deceased, but, at the same time, it was a dangerous act in the sense explained in Wilson's case.

43. When these matters are considered, along with the fact that the appellant was a person of hitherto excellent reputation and the shooting arose out of a situation which was not of his own making, I think it must be said that the head sentence of imprisonment for seven years was manifestly excessive and that it should be reduced along with the non-parole period.

44. I would allow the appeal against sentence and substitute a sentence of imprisonment for five years with a non-parole period of two years. In my view it would not be appropriate to suspend the sentence.

JUDGE3 DEBELLE J I agree with the reasons of Duggan J for dismissing the appeal against conviction.

2. I agree also that the appeal against sentence should be allowed for the reasons given by Duggan J.