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R v Sharpe (No 7)

R v Sharpe (No 7)

Case [2021] NSWSC 379 23 April 2021

Criminal Liability

Sentencing

Mens Rea & Intention

Excessive Self-Defence

Criminal Law

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Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Sharpe (No 7) [2021] NSWSC 379
Hearing dates: 21 April 2021
Date of orders: 23 April 2021
Decision date: 23 April 2021
Jurisdiction: Common Law
Before: Bellew J
Decision:
(1)   The offender is convicted of the manslaughter of Andrew Peter Drake.
(2)   The offender is sentenced to imprisonment for a period of 7 years and 6 months to date from 10 January 2020 and to expire on 9 July 2027.
(3)   I specify a non-parole period of 4 years and 9 months imprisonment to date from 10 January 2020 and to expire on 9 October 2024.
(4)   The offender will be eligible for release on parole on 10 October 2024 and his sentence will expire on 9 July 2027.

Catchwords:
CRIMINAL LAW – Offences – Sentence following a trial where offender found not guilty of murder but guilty of manslaughter on the basis of excessive self-defence – Where the offender intervened in an altercation between his father and the deceased – Where deceased used a knife to seriously injure the offender’s father – Where the offender then repeatedly stabbed the deceased – Offending aggravated by the use of a weapon and the fact that the offender was on conditional liberty at the time – Spontaneous offending initially followed by a response which was entirely excessive – Offender 18 years of age at the time – Guarded prospects of rehabilitation
CRIMINAL LAW – Sentence – Finding facts following the verdict of a jury – Where Crown case of murder clearly rejected by jury – Where Crown submitted that it was open to reagitate factual issues on sentence based upon propositions denied by the offender and apparently rejected by the jury – Necessity to find facts consistent with the verdict of the jury – Necessity to interpret the jury’s verdict in accordance with the manner in which the cases were presented at trial – Facts found accordingly

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
BP v R [2010] NSWCCA 159; (2010) 201 A Crim R 379
Clarke-Jeffries v R [2019] NSWCCA 56
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Dellow v R [2020] NSWCCA 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
HJ v R [2014] NSWCCA 21
JM v R [2012] NSWCCA 83; (2012) 223 A Crim R 55
KT v R [2008] NSWCCA 51; (2008) 182 A Crim 571
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
R v Mastronardi [2000] NSWCCA 12; (2000) 111 A Crim R 306
R v Medich (No.43) [2018] NSWSC 886
R v Shalala (CCA (NSW) 1 June 1989 (unreported)
Smith v R [2015] NSWCCA 193

Category: Sentence
Parties: Daniel James Sharpe – Offender
Regina – Crown
Representation:
Counsel:

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 Sharpe (No 7)

Details

AGLC: R v Sharpe (No 7) [2021] NSWSC 379
Case: [2021] NSWSC 379
Decision Date: 23 April 2021

CaseChat Overview and Summary

In the matter of R v Sharpe (No 7), the offender, Sharpe, intervened in an altercation between his father and the deceased. The deceased had used a knife to seriously injure Sharpe's father, upon which Sharpe responded by repeatedly stabbing the deceased. The trial resulted in Sharpe being found not guilty of murder but guilty of manslaughter on the basis of excessive self-defence. The offender was 18 at the time of the incident, and his prospects for rehabilitation were described as guarded. The offender was also on conditional liberty at the time of the offence, which aggravated the crime.

The primary legal issue before the court was to determine the appropriate sentence for the offender following the jury's verdict. The Crown sought to reagitate factual issues based on propositions that the offender denied and which the jury apparently rejected. The court was required to find facts consistent with the jury's verdict, interpreting the verdict in accordance with the manner in which the cases were presented at trial. The court found that the offender's initial action was spontaneous but his response was entirely excessive.

The court emphasised the necessity to find facts consistent with the jury's verdict and interpreted the jury's verdict in accordance with the manner in which the cases were presented at trial. The court found that while the offender's initial action was spontaneous, his subsequent response was entirely excessive. The court took into account the aggravating factors, including the use of a weapon and the offender being on conditional liberty at the time. The court also considered the offender's age and guarded prospects for rehabilitation. The court ultimately determined the appropriate sentence for the offender, taking into account all relevant factors.

Orders