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R v Russell

R v Russell

Case [2023] NSWSC 90 15 February 2023

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Supreme Court

New South Wales

Medium Neutral Citation: R v Russell [2023] NSWSC 90
Hearing dates: 29 July 2022 and 15 December 2022
Date of orders: 15 February 2023
Decision date: 15 February 2023
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
The offender is sentenced to a term of imprisonment of 6 years and 6 months commencing on 17 December 2019 and ending on 16 June 2026. The non-parole period is a term of 4 years and 5 months, expiring on 16 May 2024, that being the date upon which the offender will become eligible for parole.

Catchwords:
SENTENCING – Manslaughter – self-defence – excessive self-defence – excessive force – s 421 Crimes Act 1900 (NSW)

Legislation Cited:
Crimes Act 1900 (NSW), ss 418, 421
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(c), 25E(3)(a)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
GAS v The Queen (2004) 217 CLR 198
GG v R [2018] NSWCCA 280
Matheson v R [2015] NSWCCA 108
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Blacklidge (NSWCCA, Gleeson CJ, Grove and Ireland JJ, 12 December 1995)
R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
R v Hoerler (2004) 147 A Crim R 250; [2004] NSWCCA 184
R v Trevenna (2004) 149 A Crim R 505; [2004] NSWCCA 43
Savvas v The Queen (1995) 183 CLR 1; [1995] HCA 29
Smith v R [2015] NSWCCA 193
The Queen v Olbrich 199 CLR 270; [1999] HCA 54 199
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14

Texts Cited:
None

Category: Sentence
Parties: Regina (Crown)
Eric George Russell (Offender)
Representation:
Counsel:
C Taylor (Crown)
P Coady (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Legal Aid NSW (Offender)

File Number(s): 2019/398216
Publication restriction: Nil

Judgment

On 19 December 2019, the offender, Eric George Russell, was charged with the murders of Damien Leigh Roach and Leah Mumbulla.
The Crown alleged that on 17 December 2019 the offender stabbed both Mr Roach and Ms Mumbulla whilst they were in or around his apartment block at 11 Huntley Place, Cartwright in New South Wales.
The offender entered pleas of not guilty to both counts of murder.
On 20 April 2022, his trial commenced before me and a jury of 12.
On 6 May 2022, the jury returned a verdict of not guilty of murder but guilty of manslaughter in respect of Mr Roach, and not guilty in respect of Ms Mumbulla.
The only basis on which the jury could have reached those verdicts is that the jury was satisfied that:

In respect of Ms Mumbulla, the offender was acting in self-defence (s 418 Crimes Act 1900 (NSW)); and

In respect of Mr Roach, the offender was acting in self-defence but his conduct was not a reasonable response in the circumstances (as he perceived them), such that although he was not…

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 Russell

Details

AGLC: R v Russell [2023] NSWSC 90
Case: [2023] NSWSC 90
Decision Date: 15 February 2023

CaseChat Overview and Summary

In the case of R v Russell, the defendant was convicted of manslaughter by the Supreme Court of New South Wales. The incident arose from a physical altercation between the defendant and the victim, which resulted in the victim's death. The primary issue was whether the defendant's actions were justified under the defence of self-defence or whether they constituted excessive self-defence, resulting in criminal liability.

The court had to determine whether the force used by the defendant was proportionate to the threat posed by the victim. This involved assessing the circumstances surrounding the altercation, including the defendant's perception of the threat, the severity of the force used, and whether a reasonable person in the defendant's position would have responded with similar force. Additionally, the court examined whether the defendant had any intent to cause harm beyond what was necessary for self-defence.

The court found that while the defendant was acting in self-defence, the level of force used was excessive. The evidence suggested that the defendant perceived a significant threat, but the force used was disproportionate to the danger posed. The court emphasised that self-defence must be proportionate to the perceived threat, and any force used must be reasonable in the circumstances. The court concluded that the defendant's actions amounted to excessive self-defence, leading to the charge of manslaughter. Consequently, the defendant was sentenced under section 421 of the Crimes Act 1900 (NSW).

Orders