R v Trevenna

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Trevenna [2004] NSWCCA 43

FILE NUMBER(S):
60232/03
60462/03

HEARING DATE(S): 14 November 2003

JUDGMENT DATE: 04/03/2004

PARTIES:
Regina (Appellant/ Crown)
Leeanne TREVENNA aka Harris (Respondent/ Cross-Applicant)

JUDGMENT OF: Santow JA James J Barr J

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 70215/02

LOWER COURT JUDICIAL OFFICER: Buddin J

COUNSEL:
R D Cogswell, SC/ D J Thiering (Appellant/ Crown)
I H McClintock, SC (Respondent/ Cross-Applicant)

SOLICITORS:
C K Smith (Appellant/ Crown)
S O'Connor (Respondent/Cross-Applicant)

CATCHWORDS:
SENTENCE - Crown appeal to increase sentence - Whether sentence manifestly inadequate - plea of manslaughter accepted - s421 Crimes Amendment (Self Defence) Act 2001 (NSW) unreasonable response in the way force used to inflict death - imminent threat to life from the deceased - Respondent's appeal against sentence - range of like-offence sentences considered - whether sufficient range.

LEGISLATION CITED:
Crimes Act 1900 s19A; s24; s316; s418; s421
Crimes Amendment (Self Defence) Act 2001 (NSW) Pt 11, Div 3
Crimes (Sentencing Procedure) Act 1999 (NSW) s44
Criminal Appeal Act 1912 (NSW) s5D

DECISION:
1. Crown appeal to increase sentence dismissed
2. (by majority) Respondent's appeal against sentence dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

CCA 60232/03
CCA 60462/03
SC 70215/02
SANTOW JA
JAMES J
BARR J
4 MARCH 2004

REGINA v Leeanne TREVENNA aka Harris

Judgment

SANTOW JA:
INTRODUCTION
These proceedings began as an appeal against sentence as manifestly inadequate, brought by the Director of Public Prosecutions pursuant to s5D of the Criminal Appeal Act 1912 (NSW). The sentence was imposed by the trial judge Buddin J on 29 May 2003 upon the respondent Leanne Trevenna, aka Harris. The Crown ultimately accepted her plea of guilty to manslaughter.
This was in circumstances where the respondent accepted that her conduct, within s421 of the Crimes Act was not a reasonable response in the way she used force-inflicting death on the deceased, though she believed her conduct necessary to defend herself against an imminent threat to her life from the deceased.
Section 421 with its related provision of s418 came into force on 18 December 2001. I set out below the sequence of those and related provisions taken from the newly introduced Part 11, Division 3 of the Crimes Amendment (Self Defence) Act 2001 (NSW):
418        Self-defence---when available
(1)      A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2)      A person carries out conduct in self-defence if and only if the person believes the conduct is necessary:
(a)to defend himself or herself or another person, or
(b)to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c)to protect property from unlawful taking, destruction, damage or interference, or
(d)to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,
and the conduct is a reasonable response in the circumstances as he or she perceives them.
419        Self-defence---onus of proof
In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.
420        Self-defence---not available if death inflicted to protect property or trespass to property
This Division does not apply if the person uses force that involves the intentional or reckless infliction of death only:
(a)to protect property, or
(b)to prevent criminal trespass or to remove a person committing criminal trespass.
421        Self-defence---excessive force that inflicts death
(1)      This section applies if:
(a)      the person uses force that involves the intentional or reckless infliction of death, and
(b)      the conduct is not a reasonable response in the circumstances as he or she perceives them,
but the person believes the conduct is necessary:
(c)      to defend himself or herself or another person, or
(d)      to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person.
(2)      The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter.
The respondent, shortly before the appeal commenced, sought leave to appeal out of time which was unopposed. This was against the severity of her sentence as manifestly excessive. The respondent placed major reliance upon the significantly heavier sentence received by the respondent compared to the lower sentence substituted on appeal in R v Cioban [2003] NSWCCA 304 (21 October 2003). The respondent however did so by reference to factors favouring leniency said to be largely absent in Cioban, but present in the respondent’s case.
SALIENT FACTS
The respondent accepts the Crown’s Statement of Background and Facts. What follows is largely taken from it.
On 19 May 2003 the respondent pleaded not guilty to an indictment charging that on 1 July 2000, at Sutherland in the state of New South Wales, she murdered Terry Robert O’Brien. Under s19A of the Crimes Act 1900 the maximum penalty is imprisonment for life. The matter proceeded to trial. On 22 May 2003 the Crown accepted a plea of guilty to manslaughter in full satisfaction of the indictment. The jury was discharged. The substituted plea was under s421 of the Crimes Act, dealing with self-defence where excessive force inflicts death. This provision had only been in effect for a year at the time of sentencing. There were, and remain a paucity of cases on the statutory provision, though there were cases on the common law position from before the introduction of the new Part 11 Division 3. I shall refer to those cases later.
On 29 May 2003 the trial judge sentenced the respondent to imprisonment for seven and a half years to commence on 7 December 2000 and expire on 6 June 2008. He imposed a non-parole period of four and a half years also to commence on 7 December 2000 and expiry on 6 June 2005.
In imposing sentence, “special circumstances” within the meaning of s44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were found on the basis that this was the first time the respondent had been sentenced to a term of imprisonment.
That was taken into account in her favour, as also her plea of guilty. Because it was “not in any sense timely”, she was given a discount at or towards the bottom of the range of 10% to 25% identified in R v Thomson & Houlton (2000) 49 NSWLR 383. Nonetheless, as the trial judge acknowledged, she entered that plea at an early stage of what was anticipated to be a four-week trial, so that she thereby “facilitated the course of justice”. He also took into account her expression of remorse. While therefore he concluded that the Crown’s case was assisted by there being powerful evidence that the deceased met his death at the hands of the respondent, he acknowledged the value of her plea in these terms:
“It may be accepted however that a jury may not have been persuaded in all the circumstances of the case that the Crown had negatived self-defence and that it may accordingly have acquitted the offender altogether. In those circumstances some further discount should be allowed on account of the offender’s plea.” (at [40])
His remarks on sentencing identify a number of other factors he took into account in her favour. These included the spontaneity of the respondent’s action in circumstances suggesting a measure of provocation and where her conduct, though unreasonable, was believed by the offender to be necessary to defend herself. Moreover he found that the offender had positive prospects of rehabilitation. This was her first period of imprisonment with no prior offence involving anything even approaching a comparable degree of violence. I refer below to the relevant passages of the judgment:
“[41]I am prepared to find that the offence was not planned and that the fatal outcome was the result of a spontaneous reaction by the offender to the circumstances in which she found herself. The circumstances themselves suggest a measure of provocation although not in any sense that would meet the statutory requirement in s23 of the Crimes Act. The offence, as I have observed, took place against the background of a volatile personal relationship in which the deceased was in an agitated state by reason of not being able to contact the offender. No doubt the deceased was also jealous by reason of the offender’s contact over the weekend with Mr Tillhon [the respondent’s friend with whom she had spent the weekend], a reaction which the offender may well have anticipated.
[42]Clearly the plea recognises that the offender’s conduct was not a reasonable response in all the circumstances notwithstanding the fact that the offender believed that the conduct was necessary in order to defend herself. …..
[43]I have no reason, in view of the evidence before me, to conclude that the offender’s prospects of rehabilitation are other than positive. Indeed the Crown did not make a submission to the contrary. I am also prepared to find that there are “special circumstances” within the meaning of s44(2) of the Crimes (Sentencing Procedure) Act and again the Crown did not submit that it was not open to me to do so. I do so primarily because this is her first term of imprisonment and it must of necessity be one of considerable length. In those circumstances she will need, and indeed will benefit from, an extended period of supervision upon her release from custody. An important component of that supervision will be assistance of a kind that enables the offender to avoid relapsing into drug abuse.”
Then after quoting what appear to be the only two authorities so far decided on s421 (Greg James J in R v Nguyen [2002] NSWSC 536 and the trial judge Studdert J in R v Cioban [2002] NSWSC 972) Buddin J here concludes:
“[46]Each case of course turns on its own particular facts. The circumstances in Nguyen were highly unusual. Having said that, the present offender unlike those in Nguyen [head sentence of seven years with other sentences wholly concurrent with non-parole period of 3½ years] and Cioban stands for sentence in respect of only one offence. As I understand it, the Crown submits that when all relevant factors are considered, a sentence of the same duration as that which was imposed in Cioban [trial judge imposed a head sentence of 8 years subsequently reduced on appeal to 6 years 6 months and a non-parole period of 5 years subsequently reduced to 4 years] for the offence of manslaughter would not be inappropriate.
[47]Notwithstanding the offender’s favourable subjective matters and the other features of the case to which I have referred, it is necessary to impose a sentence which properly reflects the objective gravity of the offence and which gives effect to the various matters referred to in s3A of the Crimes (Sentencing Procedure) Act. The case involves the use of a firearm which has resulted in the tragic loss of human life. Nothing less than a substantial custodial sentence thus can be countenanced.
Sentence
[48]For the crime of manslaughter I sentence the offender to a term of seven and a half years imprisonment to commence on 7 December 2000 and to expire on 6 June 2008 with a non-parole period of four and a half years to commence on 7 December 2000. The first date upon which the offender is eligible for release to parole is 6 June 2005.”
On 27 June 2003 the Director of Public Prosecutions signed a Notice of Appeal to this Court under the provisions of the Criminal Appeal Act upon the ground that the sentence imposed by the trial judge was manifestly inadequate.
On 3 July 2003 the Notice of Appeal was served personally upon the respondent.
On 12 November 2003 the respondent served a Notice of Appeal against sentence as being in all the circumstances manifestly excessive. It was filed with an accompanying application for leave to appeal which was unopposed. Argument was heard on both the Crown and prisoner appeal. Argument by the respondent relied heavily on the recently decided appeal in Cioban v Regina [2003] NSWCCA 304 though focussing on the factors which the respondent submits should have favoured a lower sentence.
The objective facts and subjective features of the respondent are set out by the trial judge in his remarks on sentence and are not challenged by either party. They are summarised as set out below.
When the matter was originally listed for trial the respondent was to stand trial with Nicole Ollerenshaw and her former de facto husband, Richard Bauer. Each of them was charged with being an accessory after the fact to murder as well as an offence contrary to s316 of the Crimes Act 1900. However, the Crown indicated to the trial judge that a decision had been made that there would be no further proceedings taken in respect of Mrs Ollerenshaw. The trial judge indicated that Mr Bauer was to be tried at a later date.
The deceased Mr O’Brien was found by post mortem examination to have died as a result of a gunshot wound to the back of his head in the premises which he rented at 10 Hornsby Avenue, Sutherland, with the respondent and her son who was then aged 7. On occasions the offender’s son stayed with his father, Richard Bauer. Although Mr O’Brien was shot on Monday 10 July 2000 it was not until Thursday 13 July 2000 that his body was discovered by his friends who contacted the police and ambulance.
The police when they came to the scene found a cricket bat which was found possibly to have blood upon it, located near the deceased’s body. There was extensive blood upon walls and ceiling and upon the ironing board as well as upon items nearby. Evidently no bloodstain was located upon the deceased’s mobile phone which was also sitting upon the ironing board. That discovery suggested that the phone had been placed there after the deceased had been shot.
Police interviewed the respondent on the day the body was found. She denied that she had been staying at the premises at the relevant times. She denied any knowledge of or involvement in Mr O’Brien’s death, though she did acknowledge that she had returned to the premises on the evening of 10 July 2000 to collect some clothes.
Following further investigation and a second interview in which the respondent continued to deny any involvement, and following the installation of a lawfully installed listening device and other items of evidence recounted by the trial judge, she was arrested and charged on 7 December 2000, remaining in continuous custody.
Finally, as a result of discussions between the respondent and other parties, the respondent produced a statement which was in the nature of a formal admission. In it she set out in some detail the circumstances in which she shot and killed the deceased. The Crown accepted the contents of that document as constituting a proper basis upon which it could accept the plea of manslaughter on the basis of excessive use of force in self-defence within the meaning of s421 of the Crimes Act. The Crown did so in light of other material in the Crown case and particularly in view of admissions which the offender had earlier made to a Ms Kendell. For example, the respondent told Ms Kendell that she had fought with the deceased on the night of his death and that during the course of the struggle he had choked or strangled her. She told Ms Kendell that she had managed to get him off her before shooting him.
The relevant parts of the statement are in the following terms:
“When I got to the house, Terry was already in his pyjamas and in the lounge room watching TV. He’d eaten already. To begin with he was just a bit shirty, but still civil. After a short time, he started into me about taking the car and not letting him know where I was. Then he started on about me having given the mobile phone to Nicole and Kevin. He said he knew why I’d done it, so he couldn’t track me down. At some stage, we shifted from the lounge room out to the dining area. Then he said that I’d been with John Tillhon and I must have been screwing him, and getting drugs from him. I denied that I’d slept with John, but he ignored my denials and went on about it, he seemed to get more angry the more I denied it. He just didn’t listen and eventually I said ‘I don’t have to put up with this shit, I’m going, I’m not staying anyway.’ He quietened down a bit and said ‘why aren’t you staying?’ I said ‘cause I want to be with [my son].’ He said ‘why isn’t he here. We’ll go around and pick him up.’ I said ‘he won’t come.’ He said ‘why not?’ and I said ‘you know why, what have you done to him its your fault what the bloody hell have you done to him.’ He didn’t say anything. Then I said ‘have you done like what you did to Michelle. I’ve heard all about you.’ Terry got really enraged.
He said “You’re a fucking bitch, I’m going to kill you.” Terry grabbed me and threw me, I landed on the carpet near the bed. We struggled. I tried to hit him, but he grabbed me by the throat first with one hand and then with two. I tried to push his face away. He said “I’ll kill you, you bitch.” I didn’t know how long this was. I couldn’t talk, I couldn’t breath, and I thought I was going to die. I think I passed out, maybe not, but somehow I was away from him. I think I may have kneed him in the balls. I said ‘you nearly killed me.’ He said: “I’m gunna fucking kill you”. I know other words were spoken, but I can’t remember everything that was said. We were yelling at each other.
Terry moved away from me, I was close to the bunk where I knew he had a shot gun, he’d had it for some time, under the bottom bunk. He told me that he’d got the gun because he was concerned that someone may try to kill him because he owed a lot of money. He’d shown it to me. I thought it would be loaded. I reached in and got it. I stood up and took a couple paces. Terry was saying: I’ll smash your face in so no one will ever know you. You will never see [your son] again.” I saw him facing away from me with the cricket bat raised in his hand. It had been on the table. I thought he’d bash me really badly or probably kill me. I moved a pace or so forward and shot him, after this, I took off. In the early hours of Tuesday, I came back to the premises to try and remove any evidence that I was there Monday night. Afterwards, I threw the gun and all the clothes I’d been wearing away in a dumpster in front of some units in Sutherland.”
The evidence revealed that the respondent had little sleep during the period immediately preceding the incident giving rise to Mr O’Brien’s death and that she was also under the influence of amphetamines at the time.
The trial judge referred to the fact that evidence clearly demonstrated that the relationship had deteriorated in the period leading to Mr O’Brien’s death. Although the respondent lived with the deceased and assisted him in his business there was no evidence that she was romantically involved with him. It appears the deceased seems to have been infatuated with the respondent and, according to the trial judge, “he certainly tried in various ways to control her life”.
The evidence also indicates that the deceased was a large and intimidating man with a criminal record containing various convictions for assault, assault occasioning actual bodily harm and contraventions with apprehended violence orders. He also had a history of inflicting violence upon women and particularly those with whom he was closely associated. For example on one occasion he kicked a female companion down some stairs occasioning considerable injuries to her.

I quote from the trial judge’s Remarks on Sentencing as to further such evidence as well as to the respondent’s concern that the deceased may have been interfering with her son. For the purpose of s421 of the Crimes Act, what is material is not whether her concern was well-founded. Rather it is whether she genuinely had that concern, for the purpose of determining that her conduct was not “a reasonable response in the circumstances as she perceived them”. That departure remains not a reasonable response, but its explanation can have a bearing on sentence:
“[21]His ex-wife, Lynette O’Brien, provided a statement in which she described their relationship as volatile. She said that she was frequently assaulted by him and described her ex-husband as “very controlling”. Various other witnesses used similar language to describe his behaviour. The offender had also told Ms Kendell that the deceased was “trying to control her life”. Ms O’Brien had also observed the deceased to behave violently towards other women, including the offender. She believed that the offender was in fear of him. Her daughter, Tenille, provided a statement to similar effect. She related a particular incident which revealed that the offender was fearful of being left alone with the deceased. A neighbour, Dianne Lucas, who lived opposite the deceased’s premises heard arguments on various occasions between the offender and the deceased. On one occasion she witnessed an argument which concerned the offender’s son wanting to live with his father and not with his mother at the deceased’s premises. There was other evidence which indicated that the deceased had assaulted the offender and that she was afraid of him
[22]I have been provided with a statement from Julie Erdman. She related an incident in which she had gone one evening with the offender to her house in Sutherland. The offender was giving Ms Erdman a massage in her bedroom. The deceased came into the room and angrily said “I just hate dirty, stinking, fucking lesbians”. Ms Erdman concluded from this and other behaviour that the deceased had a “crush” on the offender and was jealous of their relationship. This behaviour is indicative of the sort of jealousy that the deceased displayed in respect of the offender. He had also displayed similar patterns of behaviour in relation to other women who had shared his house.
[23]There was a considerable body of evidence to the effect that the offender believed that the deceased may have interfered with her son, and that that was why he did not want to stay with her during the school holidays but wanted rather to remain with his father. This suspicion, which the offender expressed to various people, seems to have been reinforced by information that she had received (which information may well have had a reasonable foundation) that the deceased had previously interfered with his step-daughter. All this clearly contributed to the deterioration in the relationship between the offender and the deceased. As I have said, she spent the weekend before the shooting with Mr Tillhon. She expressed to him her concerns that the deceased may have interfered with her son. At one stage she referred to the deceased as a “rock spider”. There is evidence before me that her son had no difficulty being with the offender when he and she were staying somewhere other than the deceased’s place. Although the offender’s belief as to that state of affairs is relevant in these proceedings, each of the parties have stressed that there is no evidence whatsoever before the Court that there had in fact been any such interference. I accept that to be the case. I might also add that Mr Tillhon was sufficiently concerned about the offender’s safety during the course of that weekend to speak to the deceased on the telephone in an endeavour to gain reassurance that the offender would not be at risk if she returned to his house.
[24]There is an extensive body of evidence before me which reveals that the deceased was an active drug dealer and that he in particular sold cannabis and speed. Indeed paraphernalia commonly associated with the drug scene was located by police at his house. The offender appears to have assisted him in that task. Those activities inevitably led to other problems. The deceased was also in financial difficulties. It would seem that the deceased kept a baseball bat in the house in order that he might protect himself. There was also evidence which indicated that the deceased had at some stage had possession of a loaded gun. Presumably his decision to do so was related to his drug dealing activities. That material, it was accepted by the Crown, went to the likelihood that the deceased had had the shotgun, to which the offender made reference in her statement, at his premises on the night of his death.´
The trial judge made reference to her criminal record which, as he described it, “whilst not entirely clear, would not assume any real significance in the present proceedings” but for the matter of common assault. There was also the matter of aggravation, in that she was subject to a bond at the time of the commission of the present offence. Nevertheless the trial judge concluded that “I have little hesitation in concluding that her conduct on the occasion in question is totally out of character from her normal behaviour”.
The trial judge mentioned that the respondent’s experience in her childhood would have made her particularly sensitive to the possibility of any interference by the deceased towards her own child. That serves in part to explain her reaction (see first quoted paragraph of her statement at [17] above) during the course of the incident that led to Mr O’Brien’s death.
Her early childhood was not happy. She left school at the age of 14 acquiring few vocational or educational skills. She had recently separated from Mr Richard Bauer with whom she had lived from when she was about sixteen. That separation caused her considerable distress. It had meant that she had had to find somewhere to live and it was in those circumstances that she moved in with the deceased. The respondent’s mother did not approve of the respondent’s relationship with Mr Bauer because of his involvement with drugs. Since the age of about twenty, the respondent has had a dependency upon drugs and has been an active participant in the drug milieu.
The respondent told her mother that she was “deeply saddened and sorry” about Mr O’Brien’s death. The trial judge records that she is finding the separation from her children very difficult and is concerned that they may be subjected to harassment because of her crime.
She has spent her time productively while she has been in custody. She has successfully completed a number of courses. She has also managed to wean herself of methadone. The trial judge refers to this as being “an admirable achievement in view of her longstanding addiction to heroin”. He adds that “her mother is entitled, in those circumstances, to be optimistic that her daughter is committed to removing herself from the drug scene upon her return to the community”.
The trial judge records that the respondent ”has been in almost continuous employment in the gaol nursery since she has been in custody. She is hopeful of obtaining employment as a horticulturist and/or tree surgeon upon her release.”
Excessive self-defence – the applicable law under statute and at common law: generic factors.
Before turning to the competing contentions of the parties, I deal with the statutory regime in comparison to the common law as applicable to excessive self-defence. This is in order to bring out those generic factors which here bear upon sentence.
The new Part 11 Division 3 contains a statutory code regulating self-defence. It was introduced into the Crimes Act by the Crimes Amendment (Self-Defence) Act 2001 on 18 December 2001. The new Division 3 largely follows the report on Model Criminal Code (“the Code”) as developed by the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General in its chapter 2 “General Concepts of Criminal Responsibility”. Previous to this new section, the common law concerning self-defence as explained by Zecevic v DPP (Vic) (1987) 162 CLR 645 at 661, required that:
“… the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”
The test at common law is whether there are reasonable grounds for the belief actually held. That therefore starts with what the accused actually believed, rather than substituting the belief of a hypothetical reasonable person. However, that is immediately qualified by the requirement that the grounds be, in an objective sense, reasonable grounds; compare second reading speech 12 December 2001, where this is said not to provide a completely objective test.
We are presently concerned with two provisions of that statutory code which was substituted, namely s418 and s421, quoted earlier.
The common law, as I have said, simply required an actual belief, upon reasonable grounds, that the conduct was necessary in self-defence. The new s418 expands on the purpose required for conduct believed necessary in self-defence. Its purpose must be to defend a person (accused or third party), liberty or property; or else to prevent criminal trespass. The necessity at common law for objectively reasonable grounds for that belief is expressed in the statutory requirement that the response be reasonable. That objective reasonableness of response is to be assessed however “in the circumstances as he or she perceives them”, perception being in that sense subjective. Compare R v Viro (1978) 141 CLR 88 where “reasonably believed” was held to mean, not what a reasonable man would have believed, but what the accused himself might reasonably believe in all the circumstances in which he found himself. Under s418, like the Model Criminal Code, someone who really thought they were in danger, even if mistaken about that perception, may be able to rely on self-defence for their actions – unless the conduct in the circumstances so perceived was not ”a reasonable response”. Codification of what constitutes “self-defence” thereby refines and elaborates on the common law elements, but without introducing any major change.
Section 421 then, differing from the Code as the explanatory note to the Bill explains,
“reduces murder to manslaughter in the case of excessive self-defence, that is, where the defendant uses force that inflicts death and that is not a reasonable response in the circumstances, but where the defendant believed it was necessary for personal defence or for preventing or terminating unlawful deprivation of liberty”:
Thus if an offender believes it necessary to act in a certain way, but the conduct which manifests itself from this belief is unreasonable in the circumstances as perceived then the person will be found guilty of manslaughter rather than murder where that person has used force that involves the intentional or reckless infliction of death. This was essentially the common law position explained by the High Court in R v Viro (supra). There it was held that self-defence which was necessary, but which involved the use of excessive force causing death, would lead to a finding of manslaughter instead of murder, where either
(a)provocation was present, or
(b)the jury is not satisfied beyond reasonable doubt that the accused did not have the belief that the force he used was reasonably proportionate to the danger which he believed he faced (per Stephen, Mason and Aickin JJ).
More recently, Zecevic (supra) (at 662) explains the pre s421 common law position, in terms emphasising the necessity for provocation or absence of intent to kill or do grievous bodily harm to reduce what would otherwise be murder to manslaughter:
“If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence. That is to say, the killing will have been without justification or excuse and it will be for the jury to determine how it must be regarded. If it was done with intent to kill or to do grievous bodily harm, then unless there was provocation reducing it to manslaughter, it will be murder. In the absence of such an intent it will be manslaughter …”
The statutory provisions are so recent that, so far as research reveals, there are but two cases on them. They are R v Nguyen and at trial, Regina v Cioban [2002] NSWSC 972 and very recently on appeal Cioban v R [2003] NSWCCA 304 (21 October 2003). The appeal judgment in Cioban post-dates the judgment of Buddin J in the present case. The statute provides no guidelines as to sentence beyond the general provisions of s24 setting the maximum sentence for manslaughter at 25 years.
What then of the earlier common law as applied in cases on excessive self-defence, insofar as these are capable of providing any guidance for sentencing purposes? Here two caveats must be borne in mind. One is the need to have regard to where, as I have explained, the statutory regime modified or refined the common law. The other is the difficulty of attributing a meaningful sentencing range, where “of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability”; R v Blacklidge (CCA, unreported, 12 December 1995) per Gleeson CJ with whom Grove and Ireland JJ agreed. Similarly Perry J in R v O'Donnell [2002] SASC 183 (13 June 2002) at 24 quoting Martin J in R v Duke [2000] SASC 254, Court of Criminal Appeal (unreported) at 43:
“Matheson J referred to the sentencing remarks of Wells AJ in R v Shaw SASC (unreported) in which his Honour had observed that at the lowest range of criminality manslaughter may be little more than a practical joke that went wrong, and at its highest it stops just short of murder. As King CJ said in Weinman at 248, ‘the facts and circumstances of a crime of manslaughter are so varied that it is questionable whether decisions of an appellate court can establish any intelligible standards’. Bollen J expressed the same view.”
Those caveats require a degree of care in seeking assistance from earlier common law cases on excessive self-defence. But they do not stand in the way of ascertaining those generic factors from the cases which, in their preponderant effect, demonstrate that a particular sentence is outside the range appropriate to the objective gravity of the offence so as to be either manifestly excessive or manifestly lenient.
In an appendix to this judgment I have set out by way of comparison to the present case generic factors affecting sentence in the two other s421 cases and in comparable common law cases which preceded s421. Those cases (both under the common law and s421) show a wide range of factual circumstances, subjective factors and, it must be emphasised, sentences. At one end of the sentencing spectrum there is R v Gazdovic [2002] VSC 588 where no custodial sentence was imposed. At the other end is O’Donnell v R (supra), where the claimed self-defence was rejected, though the offender was still charged with manslaughter. He received a non-parole sentence of 8 years with an additional 4 years. However apart from O’Donnell, where the only factor favouring leniency was the age of the offender, who killed another in a drunken brawl, all the other head sentences and non-parole periods were shorter than in the present case, including both the other two cases on s421, and each of the comparable common law cases. This is save for R v Azar (1991) 56 A Crim R 414, where the head sentence was shorter by one year, but the non-parole period was the same; factors favouring stringency though were stronger than the present case as I explain. I do consider that significant, in terms of range of sentence.
Nonetheless generic factors, objective and subjective, repeatedly arise as relevant to sentencing in excessive self-defence cases whether at common law or under statute. I set these out below with reference to the cases including the present one:
(a)the offender was carrying the weapon prior to the time of the offence (R v Nguyen, R v Sofokleous (unreported NSWCCA 13 December 1993), R v O’Donnell) or deliberately armed himself to rejoin an affray (R v Azar (supra));
(b)threat to offender’s life from a stronger assailant or one who is armed (R v Trevenna [2003] NSWSC 463, R v Nguyen, Cioban v R [2003] NSWCCA 304, R v Gazdovic (supra));
(c)an abusive history present in the relationship between the offender and the deceased (R v Gazdovic, R v Scott [2003] NSWSC 627 or involving the deceased with others (R v Trevenna);
(d)contrition (R v Trevenna, R v Nguyen, Cioban v R, R v Gazdovic, R v Grenenger [1999] NSWSC 380, R v Azar);
(e)age (R v Nguyen, R v Gazdovic, R v Grenenger, R v O’Donnell);
(f)character of the offender (R v Trevenna, Cioban v R, R v Gazdovic, R v Grenenger, R v Azar);
(g)guilty plea, its value and timeliness (R v Trevenna, R v Gazdovic, R v Scott (supra));
(h)the offender was the original aggressor (R v Nguyen);
(i)the offender’s previous criminal record (R v Trevenna, R v Nguyen, Cioban v R, R v Gazdovic, R v Grenenger, R v Azar);
(j)the offender was on parole (R v Nguyen);
(k)pre-planning of the offence (R v Trevenna, R v Nguyen, Cioban v R);
(l)the offender was charged with other offences related to the incident (R v Nguyen);
(m)rehabilitation prospects (R v Trevenna, Cioban v R, R v Gazdovic);
(n)dependent children (R v Trevenna, Cioban v R);
(o)drugs and/or alcohol involved in the incident (R v Trevenna, R v Scott, R v Sofokleous (supra), R v O’Donnell);
(p)depressive illness on the part of the offender (R v Scott);
(q)continued attack after the deceased had been subdued (R v Gazdovic, R v Scott);
(r)the offender lied to police about his or her involvement in the crime (R v Sofokleous).
The cases demonstrate that manslaughter in these circumstances is often a crime committed under conditions of fear of varying degrees of extremity. There was at one level the armed break-in that occurred in R v Nguyen representing a significant threat. But even more extreme is the actual and immediate threat to life as occurred in the present case. The cases frequently contain an element of reaching for the nearest possible weapon available; for example R v Gazdovic, R v Grenenger, R v Scott and the present case.
In Azar, the generic factor was a deliberate arming by the offender before rejoining an affray – a factor totally absent here. Thus the offender extricated himself from a brawl involving two groups of young persons, went to a nearby house, retrieved a knife and returned to the affray to stab the victim to death. There was therefore in Azar an element of premeditation, without the offender being in fear of his life and having to kill in order to escape. Whereas here, all occurred during the one life-threatening incident, with no element of premeditation but seizing the only weapon at hand.
In the present case, the weapon was not the offender’s own but was actually the property of the deceased. In contrast, that the offender was carrying an illegal weapon was an aggravating factor in R v Nguyen, though the sentence was ultimately a lower one than in the present case (by some 6 to 12 months). Similarly in R v Sofokleous, Kirby P made note of the fact that if the offender had not been carrying the butterfly knife that night, the death would not have occurred. Though the weapon used in the present case was extreme, it was the only weapon that was at hand for the offender and was used in a situation where she feared her life. The sentencing judge specifically referred to the judgment of Greg James J in R v Nguyen “that the ‘exigencies of the moment were such that the offender simply resorted to what protective weapon was at hand’”.

The case that perhaps bears the closest resemblance to the present case is that of R v Scott. In that case the accused and deceased both were involved with drugs, as was the case here. The deceased and the accused had been fighting and the deceased had threatened to kill the accused with a knife and had held it to her throat. The accused hit the deceased with an iron multiple times, causing his death. Though the use of the iron as a weapon was less extreme than the use of the shotgun, it was aggravated by the fact that the offender continued to hit the deceased even after he most likely had been stunned and deterred by the original blow. In both cases the offender was in fear of her life and acted in self-defence, though in an excessive manner. In the present matter the offender gave evidence that the deceased had threatened to kill her and had also choked her. There was also evidence that the deceased had threatened the offender with a cricket bat. Both offenders pleaded guilty to manslaughter. One distinguishing factor is that in R v Scott the offender was suffering from a depressive illness as a result of a number of unsuccessful pregnancies. The offender also buried the body. Yet in Scott the sentence was markedly lower; 5 years imprisonment with a non-parole period of 2 years 6 months.
I point this out, not to commit the error of simply comparing out of context one case to another to see if the sentence was more severe or more lenient (see for example R v Jason Paul Morgan, (1993) 70 A Crim R 368 per Hunt CJ at CL) and the line of cases which have emphasised this stricture. Rather it is to determine whether, against the background of a number of cases, the challenged sentence was, taking into account generic factors, within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender or was instead either manifestly lenient or manifestly excessive.
Applying that approach, it will be seen that most of those factors supporting leniency were present in this case, while those supporting a heavier sentence tended to be absent. I will later elaborate on those factors as they emerged in the present case. I will also deal in more detail with the generic factors in Nguyen and Cioban, by way of comparison. But by way of summation, the following generic factors are found which can fairly be said to favour the respondent. She was not carrying a weapon prior to the time of the offence but picked up the deceased’s to defend herself. She was faced by a much stronger assailant. Her life was in clear danger as she knew. There was an abusive history involving others. She showed contrition. Her guilty plea though not early was early enough to be valuable. She was not the original aggressor but rather the deceased. She was not on parole at the time. There was no suggestion of pre-planning of the offence and she was charged with only one offence. She had good rehabilitation prospects and a young dependant child. In addition, though not amounting to provocation at law, she considered that the deceased had interfered with her son, being part of “the circumstances as … she perceives them”. But the most serious factor to be weighed against her is that she shot the deceased in the back of the head, and must be taken to have known that the result would be fatal. That departed from a reasonable response, though she had the necessary belief which brought s421 into play. In terms of the objective gravity of the offence, that factor was clearly important. For reasons which I later develop, in that weighing up, I consider insufficient weight was given to those factors in her favour, without in any way diminishing the objective gravity of what she did.
Thus I conclude that a reduced sentence would not be outside the range of sentence, insofar as any range can be discerned at all, in the common law cases to the extent comparable, or the two s421 cases and this one analysed in the Appendix. I say “to the extent comparable” because indubitably there are, as James J and Barr J point out in their respective judgments (which I have had the advantage of reading in draft) specific differences. These principally centre around the distinction on the one hand between manslaughter by unlawful and dangerous act (for example, Gazdovic; Grenenger; O’Donnell) or with intent to do grievous bodily harm (for example, Sofokleous) compared to this case where there was intent to kill but in the extenuating circumstances of s421 as also Cioban and Nguyen. That is to say, there was intended self-defence against a perceived threat to the life of the accused but by way of a response that was not reasonable, causing death. I accept that two other cases to be compared to this one are still few to produce a reliable tariff or range. But I do consider that they provide sufficient guidance to generic factors even by themselves and certainly when supplemented by those manslaughter cases sufficiently comparable, as to permit interference with the heavy sentence and non-parole period here imposed. There is certainly a danger in premature appellate intervention which does not pay proper deference to the trial judge’s sentencing discretion and familiarity with case in hand. But there is also a risk of individual injustice in holding back when the broad shape pointing to an appropriate range of sentence can be discerned along with the generic factors pointing in one direction or another. I believe that we are at this point.
Competing contentions of the parties on sentence
I turn now to the competing contentions of the parties. I have earlier set out the remarks of the trial judge at some length as they refer to the salient matters both subjective and objective bearing upon sentence. No specific identifiable error of principle was advanced by the Crown. It simply asserts that sentence is manifestly inadequate so that “there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”: Wong v the Queen (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ at 605 [58].
The Crown properly acknowledged (in its written submissions of 8 October 2003) the formidable obstacles to its appeal in contending that the sentence, was manifestly inadequate:
(a)this is a Crown appeal and therefore this court will exercise restraint before intervening; successful Crown appeals should be rare, particularly this kind of appeal: R v Baker [2000] NSWCCA 85 per Spigelman CJ at [19].
(b)This is an appeal from a sentence for manslaughter. “Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability”: R v Blacklidge (supra) per Gleeson CJ, with whom Grove and Ireland JJ agreed. Indeed the “range of sentencing available in the case of manslaughter is notoriously wide”: R v Isaacs (1997) 41 NSWLR 374 at 381E.
(c)The very experienced Crown Prosecutor at trial submitted that “no less than the sentence imposed in Cioban should be imposed in this case for the manslaughter” (T, 208.35). The sentence imposed by Studdert J in Regina v Cioban [2002] NSWSC 972 was one of eight years with a non-parole period of five years. I add as the Crown acknowledge in oral submissions, on appeal, a significantly lower sentence was substituted; a head sentence of six years six months with a non-parole period of four years.
(d)Crown appeals should not be attempts at “tinkering” with first instance sentencing: Dinsdale v The Queen (2000) 202 CLR 321 per Kirby J at 341 ([62]). Here the upward adjustment proposed in the written submissions was for the non-parole period component to be increased was six months. To meet the argument of tinkering the Crown may have been led in its later oral submissions to propose in the alternative a possible increase in the head sentence to eight years.
(e)The sentence and its non-parole period imposed in this case were both above their respective median sentences for all manslaughter sentences contained in the statistics kept by the Judicial Commission in its JIRS database.
The Crown nonetheless asserts that the sentence imposed by the trial judge in this case was manifestly inadequate as a penalty for the objective culpability involved in the deliberate discharge of a shotgun to the back of the victim’s head, where that was not a reasonable response in the circumstances as the respondent herself perceived them.
The respondent’s written submissions in response are directed to responding to the appellant’s contention that the sentence was manifestly inadequate. They seize on the appellant’s necessary acknowledgment that the increase sought (six months on the non-parole period) might be said to be an invitation to tinker with the sentence and contend that it should be dismissed simply on that basis; Dinsdale v the Queen (supra). The appellant in oral argument, attempted to reduce the impact of that argument by belatedly seeking an increase in the head sentence as well, of somewhere between six to twelve months.
The respondent emphasised the factor of the imminent threat from the deceased of serious injury or death to the respondent when he said, “I’ll smash your face in so no-one will ever know you. You will never see [your son] again”. He had earlier attempted to choke her three times, saying that he would kill her. The respondent said that, “I thought he’d bash me really badly or probably kill me.” The trial judge accepted that.
A further matter properly emphasised by the Crown was that at the time of the discharge of the shotgun, which she had seized thinking it would be loaded, the deceased was not facing the respondent. Moreover, she shot him in the back of the head, where the outcome was inevitably fatal.
RESOLUTION OF APPEAL
Clearly the starting point for the trial judge (at [37]) was that thereby a human life has been taken. He rightly emphasised that the community expects that human life will be protected by the law and that those who take it will be punished. The trial judge on the other hand accepted that “the offence was not planned and that the fatal outcome was the result of a spontaneous reaction by the offender to the circumstances in which she found herself”. Moreover, those circumstances involved a real and immediate threat to her life. The trial judge then records that, “the plea recognises that the offender’s conduct was not a reasonable response in all the circumstances notwithstanding the fact that the offender believed that the conduct was necessary in order to defend herself.”
The trial judge, though not having before him the decision of the Court of Criminal Appeal in Cioban v Regina [2003] NSWCCA 304, did carefully consider the circumstances in both Nguyen and Cioban.
The respondent emphasises that in Nguyen, the offender pleaded guilty to manslaughter on the basis of the excessive use of force in self-defence and to an additional count of malicious wounding with intent to cause grievous bodily harm to another person as well as two further charges of maliciously discharging a pistol to cause grievous bodily harm. These were, unlike the present case, multiple offences. The circumstances were that the offender was at the premises of a friend when a home invasion took place with a number of armed intruders bursting into the premises. The offender discharged two shots from a handgun which he had with him. The first killed one intruder and the second struck a second person. The robbers then ran from the premises pursued by the offender. The latter then fired two further shots with the result that two further persons were injured though only minor wounds were occasioned to them.
A plea of guilty was assessed in Nguyen as entitling the offender to a discount of 25% from the otherwise appropriate sentence. The offender had a prior criminal record and was on parole at the time in respect of an offence of armed robbery with wounding. Greg James J imposed an overall effective sentence of seven years imprisonment with a non-parole period of three and half years.
That compares to the present head sentence of a total of seven and half years. The Crown submits that it would not be inappropriate to increase it to eight years. The Crown noted the non-parole periods of three and half years for Nguyen compared to the four and a half years for the respondent. The Crown nonetheless sought that the non-parole period be increased by six months to five years.
There are a number of generic factors in Nguyen compared to those in the present case which bear on the range of sentence appropriate to the objective gravity of the offence and other relevant circumstances of the offender:
(a)only one offence occurred here as against in Nguyen the killing of one intruder, the injury to the second intruder and the further relatively minor injuries to two other persons, thus involving, as Greg James J concluded “a serious degree of culpability in the offender failing to restrain himself once the immediate threat had passed and pursuing the surviving intruders, firing shots at them as they fled”; at [21]
(b)the respondent here faced an imminent threat to her life, whereas in Nguyen, though there was a force of about eight persons armed with clubs and an iron bar, the threat of physical injury though real enough, did not appear to amount to such a threat to the life of the accused as to equal the present case;
(c)it was accepted by the trial judge in the present case that none of her previous offences, in particular one of common assault, were in any way comparable to her conduct on the occasion in question being conduct which the trial judge described as “totally out of character from her normal behaviour”, whereas in Nguyen the offender had a prior record of armed robbery with wounding, a further crime of assault with intent to rob being armed, offences whose effect Greg James J described as “chilling”;
(d)the respondent obtained a discount at the lower end of the range of 10% to 25% for her plea of guilty in circumstances where though not timely, that plea nonetheless “facilitated the course of justice”, whereas the offender in Nguyen received the benefit of a full 25% discount being a plea of “high utilitarian value, showing contrition”; that difference in discount, assuming 10% was the discount in the present case (being at the lower end) would of itself yield a significant difference in head sentence;
(e)in Nguyen there was no equivalent to the respondent’s perception that the deceased had interfered with her son; and
(f)subjective circumstances including the prospect of rehabilitation would have favoured the respondent as compared to the offender in Nguyen.
Again accepting that manslaughter throws up “the greatest variety of circumstances affecting culpability” and that making a simple comparison between cases leads to error, nevertheless generic factors in Cioban should also be compared. The decision of the Court of Criminal Appeal in Cioban was strongly pressed by the respondent in view of the reduction in sentence. I have already referred to the fact that in Cioban, the original sentence by Studdert J of a head sentence of eight years with a non-parole period of five years was held on appeal to be manifestly excessive. The substituted head sentence was six years six months and the substituted non-parole period four years.
The trial judge in the present case had the decision of Studdert J before him though not the decision of the Court of Criminal Appeal in Cioban. Again the generic factors in Cioban favour the respondent by comparison. To explain this, I need to say a little more of the circumstances of Cioban. In Cioban, what happened was that the deceased died from a gunshot wound following an altercation in a hotel in the Kings Cross area between a group of men including the deceased, the offender and his companion.
Following that altercation, the accused and his companion were asked to leave the hotel. They were then followed by the deceased and his companions. A fight started in the street nearby with different versions of that fight and its ultimately fatal aftermath being given by various witnesses. No witnesses were called for the defence at trial. The Crown case in brief was that some of the Fijians were punching and kicking either the appellant, or his associate, in the middle of the road near the intersection of Bayswater Road and Darlinghurst Road. The appellant produced a gun which he pointed at the deceased who was threatening to assault him. He shot at the deceased intending to cause him grievous bodily harm, but missed (Count 2). He then retreated up Darlinghurst Road with the deceased chasing him. Eventually the deceased caught up with them and they fell in the entrance area of the Backpackers Hostel. They struggled and in the course of that struggle the appellant fired the fatal shot.
Studdert J found that the deceased was the only member of group described in evidence as “the Fijians who continued to pursue the accused after that first shot. The evidence established that the deceased was affected by drink and that he was a taller and younger man than the accused. Studdert J stated that “on my analysis of the evidence, the prisoner may well have perceived that he was cornered in the doorway and that he was faring badly in resisting the deceased.”
Comparing now generic factors in Cioban to those in the present case:
(a)the respondent did not carry with her a gun but used the deceased’s when under threat to her life whereas the accused in Cioban either was handed a gun by one of his friends (evidence from the taxi-driver) or pulled it out of his pants, meaning he had it already (this was not resolved);
(b)the respondent faced a threat to her life, whereas in Cioban the deceased posed a serious threat of physical harm to the accused;
(c)each of the respective respondents were physically at a disadvantage to their assailants;
(d)the respondent carried out the one offensive act of shooting whereas in Cioban the accused first shot at the deceased intending to cause him grievous bodily harm but missed (Count 2); however it must be noted that on appeal Count 2 was set aside based, inter alia, upon the body of evidence that the shot was perceived as a warning shot, and then only later when the deceased caught up with him was the fatal shot fired (Count 1);
(e)in both cases the trial judge found special circumstances, in Cioban on the basis that each were determined to have had good prospects of rehabilitation; in Cioban the accused would have to cope with assisting to care for a child with significant disabilities whilst the respondent had a young son from whom she would be separated;
(f)the respondent entered a plea of guilty unlike the accused in Cioban who maintained a plea of not guilty; and
(g)the discharge of the firearm did not take place in a public place in the present case, whereas in Cioban it did.
The appellant resists the implications of such a comparison between the present case and the other two authorities by reference to what was said by Gleeson CJ in R v Blacklidge at 3-4:
“For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.“

Gleeson CJ observed that while manslaughter throwing up “the greatest variety of circumstances affecting culpability”, he proceeded to say:
“At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)”
Gleeson CJ then observed that where there is a diminished responsibility basis for finding manslaughter
“what is nevertheless ordinarily involved, and what is involved in the present case, is a conclusion that the taking of human life was the consequence of a deliberate and willed act, performed with intent to kill or cause grievous bodily harm, or with reckless indifference to human life. The abnormality of mind substantially impairs the offender’s mental responsibility for his or her act but it does not negate such responsibility. The reduction in the capacity for self control which results from the abnormality of mind diminishes the responsibility, but it does not excuse the act.”
While judgment as to the extent to which responsibility may be diminished can be a difficult task, nevertheless
“The hypothesis, however, is that the offender is responsible for a deliberate act which took the life of another person, and which, but for the abnormality of mind, would bear the character of murder.”
From this basis, the appellant presses upon this Court that it ought to emphasise the objective seriousness, as defined by statute, of manslaughter based upon excessive self-defence, with the consideration being fundamental in sentencing that “the offender is responsible for a deliberate act which took the life of another person and which [but for the belief that the conduct was necessary] would bear the character of murder.” The appellant emphasises that in considering the objective gravity of the offence, it is important that it be borne in mind in sentencing for this category of manslaughter that the offender was guilty, not only of the deliberate or reckless infliction of death, but also an infliction of death which was not a reasonable response in the circumstances as the offender perceives them.
The appellant on that basis maintained that Nguyen was in fact too lenient and Cioban was distinguishable on the basis that there were “very powerful subjective features”. Both these arguments were pressed by the Crown prosecutor at trial (see T, 206.09 and 208.20).
In considering the implications of other cases, more especially when there is such a paucity of sentencing examples on s421 though capable of amplification by reference to comparable pre s421 cases. I have, as I have said, borne in mind the stricture by Hunt CJ at CL in R v Morgan (supra) at 371:
“It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender and not whether it is more severe or more lenient than some other sentence.”
That decision has been followed since in R v Speechley (2002) 133 A Crim R 26 at [39], R v Turkman (2002) 133 A Crim R 328 at [7], R v Hungerford (NSWCCA, 15 December 1993) at 2, R v Salaman (NSWCCA, 9 June 1994) at 2 (Hunt CJ at CL), R v Mills (NSWCCA, 3 April 1995) at 2.
As to range, with the present small number of s421 sentences, the only other source to turn to for a general guide to sentence length is the Judicial Information Research System (JIRS). The Judicial Commission of NSW uses JIRS to publish online statistics that outline the different sentences handed down for various offences committed in NSW. It is more up to date than the Judicial Commission Monograph Series 23 – January 2004 – Sentenced Homicides in NSW 1994-2001. At page 24 of that monograph appears the following:
“For the 231 offenders who were sentenced to imprisonment for manslaughter, head sentences ranged from 18 months to 20 years. The median head sentence was 7 years. Non-parole periods imposed ranged from 8 months to 14 years 6 months, with a median non-parole period of 4 years 3 months.”
But taking the more up to date online version (1996-2003) a similar result emerges. Thus between July 1996 and June 2003, 214 offenders were sentenced for manslaughter. Of these 214 offenders, 185 were sentenced to imprisonment. The median sentence handed down was 7 years, with a median non-parole period of 43-48 months.
In the present case both the head sentence and the non-parole period handed down to the offender were in excess of these medians. It should be emphasised that these statistics provide no more than a very general indicator of the type of sentences that various offences attract in NSW. It should also be noted that the statistics are not specific to s421 offences, nor to the common law offence of excessive self-defence. Nonetheless with that necessary reservation, they provide some guidance as to range of sentence, though for the broader category of manslaughter, and support the conclusion that the present sentence and non-parole period were manifestly excessive.
Turning now just to the fewer s421 cases and taking into account the stricture in [75] above, as well as the great variety of circumstances affecting culpability in the case of manslaughter and the objective seriousness of this offence, more especially one where the infliction of death was not a reasonable response in the circumstances as the offender perceived them, nonetheless I am of the view that sentence in the present case was manifestly excessive. It was on any view not manifestly inadequate. While it is true that so far there are only two cases on s421, and applying the caution that one should in looking at other sentences so as to consider the matter by reference to the factors that led to those sentences, I do consider that the factors which distinguish the respondent’s position in her favour from both Nguyen and the Court of Criminal Appeal decision in Cioban are sufficiently powerful as to lead to the conclusion that the sentence imposed was manifestly excessive. The generic features of the present case compared to Nguyen and Cioban should have led to lower sentence in the present case. The sentence in Nguyen, where there was no threat of imminent death, was of seven years with three years six months non-parole, whilst in Cioban it was less, namely a head sentence of six years six months and a non-parole period of four years. I have earlier (at [51] above) referred in summary to the preponderance of generic factors favouring the respondent in the present case.
In determining the range of sentence, that the self-defence involved was excessive does not of itself resolve what is an adequate sentence. This is because one may conclude that a response was not reasonable but also that the degree of departure from what was reasonable was such as to justify a heavier or lighter sentence. In so doing, it is necessary to have regard to what the person would believe was conduct necessary to defend himself or herself, taking these circumstances as he or she perceives them.
Here the trial judge concluded that “it may be accepted however that a jury may not have been persuaded in all the circumstances of the case that the Crown had negatived self-defence and that it may accordingly have acquitted the offender altogether.” That conclusion led to some further discount being allowed on account of the offender’s plea, but at the lower end (which I take to be around 10%). In my judgment there should have been a significant further discount for that factor.
In making these observations I must balance them against the objective seriousness of the offence, in particular that the respondent shot the deceased in the head when his head was turned, so making death almost inevitable as against a shot directed elsewhere. Without detracting in any way from the objective gravity of what she did, proper allowance must be made for the sense of imminent danger of death that the respondent considered herself to be in the split second in which she had to act; so much is apparent from the relevant parts of her statement to which I have earlier made reference. What she did in the circumstances as she perceived them was excessive. But it was in circumstances where her life was threatened by a man much more powerful than she, with a cricket bat with which he could have inflicted terrible injury upon the respondent. She was moreover faced with a threat not only of that kind but that “you will never see [your son] again”. This was when she had already a perception, though unfounded, that the deceased had interfered with her son. While these circumstances may fall short of provocation, they do bear upon the objective seriousness of what she did and ultimately upon the range of sentence appropriate for such an offence, serious as it undoubtedly was.
SUMMING UP and CONCLUSION
In all the circumstances, I would conclude that the head sentence should be reduced by one year to six years six months and the non-parole period reduced by six months to four years. I am conscious that sentencing is not an exact science and the trial judge’s sentence discretion is ordinarily to be respected the more so due to the variety of circumstances affecting culpability in manslaughter. But I am nonetheless strongly influenced by the significant divergence the present higher sentences and non-parole period has from that now reduced sentence in Cioban whose generic features would point if anything to a higher sentence, as also Nguyen, both s421 cases and to which Scott in particular may be compared. It must be remembered that s421 cases, though so far with this one only three, do have common generic features compared to manslaughter at large and a pattern or profile is starting to emerge capable of supplementation from those manslaughter cases sharing comparable, though necessarily not identical, features. I would therefore have allowed the respondent’s appeal against sentence accordingly though unfeignedly respecting the views of James J and Barr J to the contrary. I would join with them to dismiss the Crown appeal seeking to increase the sentence. As to the latter, there is no doubt in my mind that such increase would come close to tinkering but would, more importantly, involve an interference not justified by any conceivable range of sentence for the offence here in question, when its objective and subjective features are properly taken into account.
JAMES J: I have had the advantage of reading in draft the judgment of Santow JA. I agree with Santow JA’s conclusion that the Crown appeal against sentence should be dismissed. However, I am unfortunately unable to agree that Ms Travenna’s appeal against sentence should be allowed. In my opinion, when due regard is had to relevant principles of sentencing and of determining appeals against sentences, it has not been shown that the sentence imposed on Ms Travenna was manifestly excessive.
In his judgment Santow JA has comprehensively stated the objective facts of the offence and the subjective circumstances of Ms Travenna. I gratefully adopt what his Honour has said and there is no need for me to repeat what has been so comprehensively covered by his Honour.
In his judgment Santow JA has quoted passages from the judgment of Gleeson CJ in R v Blacklidge. However, because I consider that the principles stated by Gleeson CJ in R v Blacklidge are so important in the determination of Ms Travenna’s appeal against sentence, I will myself quote part of what Gleeson CJ said. At pages 2 – 3 of his judgment Gleeson CJ said:-
“The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s 18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.
It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
At the same time, the courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case. (R v Dodd (1991) 57 A Crim R 349; R v Hill (1981) 3 A Crim R 397 at 402.)”
In his judgment Santow JA also refers to what was said by Hunt CJ at CL in R v Morgan at 371. Again, because of what I consider to be the importance of the principles stated, in the determination of Ms Travenna’s appeal, I will myself quote part of what Hunt CJ at CL said. At page 371 his Honour said:-
“It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411:
“The reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.””
I will now set out some further statements of principles to be applied in the determination of sentencing appeals.
R v Allpass (1993) 72 A Crim R 561 was a case of a Crown appeal against sentence. In its judgment the Court of Criminal Appeal, which included Gleeson CJ and Hunt CJ at CL, stated a number of principles. Although most of these principles relate only to Crown appeals against sentence, it is apparent that the first principle stated by the court was intended by the court to apply to all appeals against sentences, both Crown appeals and appeals by prisoners. The first principle stated by the court at page 562 was as follows:-
“A Court of Criminal Appeal which is dealing with an appeal against sentence does not simply embark upon the task of sentencing afresh, substituting its own opinion for that of the sentencing judge, and increasing the sentence if it considers it to be inadequate, or decreasing the sentence if it considers it to be excessive. An appellate court will only interfere if it is demonstrated that the sentencing judge fell into material error of law or fact. Such error may appear in the reasons given by the sentencing judge, or the sentence itself may be manifestly excessive or inadequate, and thus disclose error. However, the facts and circumstances of individual cases are often such that sentencing judges have a substantial discretion, and the appellate court does not intervene simply upon the basis that the members of that court would have exercised their discretion differently from the judge at first instance.”
In the joint judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen (1998) 194 CLR 610 their honours said at page 624 (46):-
“Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision.”
In my opinion, in the present case the primary judge Buddin J had a substantial discretion in sentencing Ms Travenna for the offence of manslaughter and it has not been shown that the sentence imposed by Buddin J fell outside the range of a proper exercise of his Honour’s sentencing discretion. A conclusion that the sentence imposed fell outside the range of a proper exercise of his Honour’s sentencing discretion cannot, in my opinion, be demonstrated by a detailed comparison, of the kind undertaken by Santow JA in his judgment, of the present case with the very few other cases in which sentences have so far been imposed for “excessive self defence” manslaughter under s 421 in Division3 of Pt 11 of the Crimes Act.
If, as Santow JA concludes, the sentence which this court, if it were to allow Ms Travenna’s appeal, should impose in re-sentencing Ms Travenna would be a sentence of six and a half years with a non-parole period of four years, that is a sentence just one year shorter in its total term than the sentence imposed by the primary judge, with a non-parole period just six months shorter than the non-parole period set by the primary judge, then I have difficulty in seeing how the total term of the sentence imposed by the primary judge or the non-parole period set by the primary judge could be regarded as outside the range of a proper exercise of his Honour’s sentencing discretion.
I do not consider that the cases referred to by Santow JA in his judgment, which are not cases of “excessive self defence” manslaughter under Pt 11 Div 3 of the Crimes Act (that is, are not cases where the offender had the intent required for murder, self defence was raised and the Crown succeeded in excluding self defence on the basis that the act of killing done in intended self defence exceeded what was reasonable in the circumstances) are of any real assistance in determining the appeal in the present case. In R v Azar the offender had been charged with murder but had been convicted of manslaughter and the conviction of manslaughter could only be explained on the basis that the jury were not satisfied that Azar had the intent required for murder. R v Sofokleous was a case in which there was an intent to inflict grievous bodily harm but not an intent to kill and the verdict of manslaughter was on the basis that the act causing death had been done under provocation. R v Grenenger (Sully J) was another case of manslaughter by unlawful and dangerous act in which it is apparent from the questions the trial judge put to the jury in his summing up and the jury’s verdict of manslaughter that the jury were not satisfied that the offender had an intent to kill or to inflict grievous bodily harm. R v O’Donnell (Supreme Court of South Australia Court of Criminal Appeal 30 June 2002) was another case of manslaughter by unlawful and dangerous act in which the offender was sentenced on the footing that he had not formed the intent to cause serious bodily harm to the victim. R v Gazdovic (Unreported Supreme Court of Victoria Criminal Division 20 December 2002 (Teague J)) was another case of manslaughter by unlawful and dangerous act.

As stated earlier in this judgment, I agree with Santow JA that the Crown appeal against sentence should be dismissed. However, in my opinion, Ms Travenna’s appeal against sentence should also be dismissed.
BARR J: I gratefully adopt the statement of facts set forth in the judgment of Santow JA, which I have read in draft.
So variable is the crime of manslaughter, both in its legal formulation and in the range of culpability that it contemplates, that the identification of the available range of sentence in any individual case is notoriously difficult. In R v Blacklidge Court of Criminal Appeal, 12 December 1995 unreported Gleeson CJ, with whom the other members of the Court agreed, said-
The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.
Another difficulty concerns the use by way of argument of the facts and resulting sentences in cases unrelated to the case under appeal. It is sometimes put that the facts of the case under appeal and those of the case cited for comparison are so alike that the sentences, too, should have been alike. Since they were not, error must have occurred. Hunt CJ at CL warned against such an approach in R v Morgan (1997) 70 A Crim R 368 when he said at 371-
It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range. As Mason J said in Lowe (1984) 154 CLR 606 at 612; 12 A Crim R 408 at 411:
“the reference to an appropriate sentence is apt to be misunderstood. Generally speaking, a sentence within a limited range of years is appropriate to the circumstances in which the offence was committed and to the character, antecedents and conditions of the offender. As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty.”
When speaking of ranges of culpability and sentence counsel seem to have assumed that there must be a precise correlation between the two. While no doubt offences of high culpability ought to attract high sentences and those of low culpability low sentences there need be no precise correlation between sentences in unrelated cases where the facts are similar. Sentencing is an art. Sentencing judges have to evaluate a mass of evidence and different judges evaluate differently. Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong. To say so would deny the existence of judicial discretion.
The statement of Hunt CJ at CL in R v Morgan is of general application but is particularly pertinent to manslaughter sentences for the reasons explained by Gleeson CJ in Blacklidge. In R v Schelberger Court of Criminal Appeal, 2 June 1988, unreported Yeldham J said this in delivering the judgment of the Court-
We have been referred to a number of other cases in which this Court has expressed opinions upon the adequacy or otherwise of sentences fixed by trial judges in varying cases of manslaughter. Speaking for myself, I find little assistance from decisions in other cases. The crime of manslaughter is one which has so many facets and which, in its nature, is so wide and extensive that little, if any, assistance is so gained from a consideration of what, on other occasions and in other circumstances and on another accused person, was a proper sentence to impose.
It is convenient to deal together with the Crown appeal and the cross-application for leave to appeal.
By the time Wilson v The Queen (1991-1992) 174 CLR 313 was decided it was established that there were only two ways in which a verdict of guilty of manslaughter could be reached at common law, namely by unlawful and dangerous act and by criminal negligence. Neither involved any intent to do grievous bodily harm or kill. Before the enactment of Part 11 Division 3 Crimes Act added a third, there were only two statutory routes to manslaughter, namely by diminished responsibility, which developed into substantial impairment by abnormality of mind, and by provocation. Under each of the three present statutory formulations the offender intends to do grievous bodily harm or kill. (For present purposes I leave out of consideration the other formulations of murder).
There was no concept at common law of self-defence manslaughter. Where self-defence was the only live issue for the jury the result could only be either guilty of murder or not guilty. There is therefore no record before the creation of Part 11 Division 3 of sentences for self-defence manslaughter.
Counsel informed the Court that there had been only two sentences imposed for self-defence manslaughter, namely R v Cioban and R v Nguyen. In fact there had been a third: R v Scott, decision of Whealy J of 10 July 2003. All three cases are included in the schedule forming part of the judgment of Santow JA.
In the present case the Crown Prosecutor submitted to the sentencing judge that the offender should receive no lesser sentence than had been passed on Cioban. Cioban had been sentenced to a head sentence of eight years with a non-parole period of five years for manslaughter and to an eighteen month fixed term for the malicious discharge of a firearm with intent to do grievous bodily harm. There was a six-month concurrency and an effective sentence of nine years with a non-parole period of six years. By the time this appeal was argued Cioban had successfully appealed to this Court. His sentence for the manslaughter count had been reduced to a head sentence of six and a half years with a non-parole period of four years and his conviction on the firearm count had been quashed.

The fact that the ultimate sentence in R v Cioban was a sentence of this Court gives it no particular force as a sentence for comparison. One can be certain that on the facts of that case a head sentence of eight years and a non-parole period of five and a half years were too high and that a head sentence of six years six months and a non-parole period of four years were within the proper range of sentencing discretion. What one cannot know is what the permissible range of head sentence and non-parole period were on the facts of that case, much less what they might be in other cases in which some facts might be similar and some dissimilar.
The three sentences under Part 11 Division 3 other than this case- Cioban, Nguyen and Scott – do not make a tariff. In my opinion it is not possible to demonstrate error by reference to them collectively because they are so few.
In my opinion it is inappropriate to consider in order to demonstrate error the sentences imposed in the remainder of the cases included in the schedule in the judgment of Santow JA because they are so few as to be statistically insignificant and because each has important features unlike those of the present case. R v Gazdovic was a Victorian case of manslaughter by unlawful and dangerous act. There was no specific intent, whereas Trevenna must be regarded as having intended to kill. R v Grenenger involved manslaughter by unlawful and dangerous act. R v Sofokleous was a case of murder reduced to manslaughter as a result of provocation, but there was no finding as to specific intent. The case should be regarded as one of an intent to do grievous bodily harm. In R v Azar the basis of the conviction for manslaughter was left uncertain. Provocation and manslaughter by unlawful and dangerous act were left for the jury and there was no finding by the sentencing judge as to which it was. R v O’Donnell was a South Australian case in which the specific intent for murder was not proved. Presumably it was manslaughter by unlawful and dangerous act.
Gazdovic and O’Donnell were decided in States of Australia other than New South Wales. While this court considers interstate sentencing cases when questions of principle arise and when uniform legislation is concerned, for example when the importation of narcotics is prosecuted under Commonwealth statutory law, it has not been the practice to take into account as establishing sentencing ranges sentences imposed in other States or in the Territories for offences against the laws of those places. Of course, one would not expect courts in other parts of Australia to regard manslaughter any more or less seriously than this court does, but there may be other provisions of the laws of such places that affect sentences imposed for manslaughter. There may, for example, be related statutory offences that attract a particular range of sentences that influence manslaughter sentences locally but which have no application to or exact equivalent in New South Wales. There may be different formulations of manslaughter affecting or affected by different local formulations of murder. There may be different requirements for fixing non-parole periods. Any necessary relationship between non-parole periods and head sentences may be at least understood as having a practical effect on the length of head sentences. And there may be other local factors of which this court is not aware which affect local sentencing ranges.
I would not wish to encourage the commencement of such a practice.

In my opinion the Crown has not demonstrated that the sentence was inadequate and the applicant has not demonstrated that it was excessive. The sentence was within the proper range of discretion of the sentencing judge. I agree with the remarks of James J and with the orders proposed by his Honour.

APPENDIX TO JUDGMENT OF SANTOW JA

Cases on Excessive Self-Defence under s421 and earlier
at Common Law
Present Case

Name of Case

Facts

Factors in Sentencing

Sentence (in non-parole period sequence)

R v Trevenna [2003] NSWSC 463

The offender had gone to the house that she shared with the deceased to collect some clothes. The offender had been spending the weekend with another man. The deceased was angry that the offender had avoided all contact with him in her absence. During the visit the offender and the deceased started arguing.

The deceased threatened to kill the offender. The deceased also strangled the offender whilst on top of her. There was also evidence given by the offender that the deceased had been holding a cricket bat which the offender thought the deceased might use against her.

The offender had a shotgun under a bunk bed that the deceased knew about:

“I reached in and got it. I stood up and took a couple paces. Terry was saying: I’ll smash your face in so no one will ever know you. You will never see [your son] again.” I saw him facing away from me with the cricket bat raised in his hand. It had been on the table. I thought he’d bash me really badly or probably kill me. I moved a pace or so forward and shot him.”

Further evidence was given by the offender that she believed the deceased had been interfering with her son.

(1) Factors favouring leniency:

(a)         The offender entered a plea of guilty (although the sentencing judge noted that this plea was not ‘timely’ and set the discount at the lower end of the 10-25% range).
(b)         There was a measure of provocation (the offender claimed that the deceased had interfered her son.
(c)         The deceased was more powerful than the offender.
(d)         The attack of the deceased was very aggressive and violent.
(e)         The deceased was armed with a dangerous weapon.
(f)          The firearm was that of the deceased, which the offender had opportunistically gained during the incident.
(g)         The offence was not planned and was a response to the grave circumstances at hand.
(h)         It was the offender’s first time in custody.

(i)          The offender had only a relatively minor criminal record that was noted by the sentencing judge as insignificant.
(j)          The offence was out of character.
(k)         The offender had good prospects for rehabilitation.
(l)          The offender had a son to look after.

(2) Factors favouring stringency:

(a)         The use of a shotgun was excessive.
(b)         The deceased was shot in the back of the head.
(c)         The offender initially lied to the police about her involvement in the death.

7½ years sentence with a non-parole period of 4½ years.

Section 421 cases

Name of Case

Facts

Factors in Sentencing

Sentence (in non-parole period sequence)

Comparison of factors to present case

R v Nguyen [2002] NSWSC 536

8 persons including the deceased arrived at a house, containing the offender and others, with the intention to rob it. The persons carrying weapons including iron bars, knocked on the door and burst into the room. At that point the offender jumped to his feet. There apparently was some very brief conversation (the precise nature of this is unknown) following which the offender discharged two shots from a handgun. The first shots apparently struck Sok Hem, killing him almost instantly from a wound to his aorta.

(1) Factors favouring leniency:

(a)         The offender pleaded guilty to manslaughter. The plea was accepted “on the basis of the excessive use of force in defence of self and others against threatened serious crime. That means that although serious, the offence is not of the gravest.” Greg James J at paragraph 19.
(b)         The offender received a 25% discount from his sentence for his plea of guilty that indicated a high level of contrition. It was also noted that the offender acted on impulse and was not the original aggressor.
(c)         The young age of the offender (24) was also taken into account.

(2) Factors favouring stringency:

(a)         The offender had a record that included some considerable criminality including a serious armed robbery.
(b)         The offender was on parole (as there was no pre-planning involved in the offence there was no regard had to this breach).
(c)         The offender pursued the robbers when they ran away indicating a serious degree of culpability. The sentencing judge noted that the blood does take time to cool however.
(d)         The offender was carrying a gun at the time of the offence. This attracts a risk in and of itself. Carrying the gun added to the culpability of the crime although the sentencing judge noted that the offender simply had resort to the weapon at hand.
(e)         The offender was also charged with other offences including:

· Malicious wounding with intent to do grievous bodily harm.

· Two charges of maliciously discharging a pistol with intent to do grievous bodily harm.

· Possession of an unregistered firearm.

7 years sentence with a non-parole period of 3 ½ years.

Factors present:

(1) (a) – (b)

Factors differing:

(1) (c)

(2) (a) – (e)

Cioban v R [2003] NSWCCA 304

The judge accepted that the offender was punched and kicked by the deceased, that the deceased had acted very aggressively towards the offender prior to the first shot being fired and thereafter until the second and fatal shot was fired. The deceased alone continued to pursue the offender as he ran away after the first shot. The deceased caught the offender in front of the doorway of a backpacker hostel and engaged him. They ended up on the ground where they wrestled and fought and struggled. The deceased, who was younger and taller than the offender, was on top of him. It was about this time that the offender shot the deceased. Up to that point the offender seemed to be getting the worst of the fight.

Until the offender fired the gun it had been a fist and body fight. A tall young man can do a lot of damage by kicking, punching and seizing hold of an older man. He could have either killed the offender or inflicted serious wounds upon him. The use of a gun transformed the struggle and fatally so. Even in the heat of the moment it was obvious that the use of a gun at such close quarters was very dangerous and could well result in a fatality. The offender reasonably believed he had to act in self-defence but he went much too far and well beyond the limits of legitimate self-defence.

(1) Factors favouring leniency:

(a) The offender had been cornered by the deceased and was being overcome. His own health and safety were endangered. He would have been very fearful of loss of life or grave injury:

Mason JA:

“The sentencing exercise was one of considerable difficulty bearing in mind that the offender had to act in self-defence. The offender would have been aware that he was being attacked by a man who had had a lot to drink and exhibited much aggression. The offender had to get away from the deceased to avoid further injury. That would have struck him as a very difficult task physically without some assistance. Hence the use of the gun.”

(b)         A psychologist assessed that the offence was very much out of the character for the offender.
(c)         Good prospects of rehabilitation.
(d)         The offender had no criminal history of any relevance.
(e)         No pre-planning was involved in the offence.
(f)          The offence was out of character for the offender.
(g)         The offender was very involved in looking after his son with cerebral palsy.
(h)         The offender was cornered by the deceased and was being overcome.

(2) Factors favouring stringency:

(a) The deceased was not armed.
(b) The offender shot the deceased at very close range.

No contrition was shown by the offender.

6 ½ years sentence with a non-parole period of 4 years.

Substituted for the original sentence of 8 years with a non-parole period of five years by the NSW Court of Appeal.

Factors present:

(1) (a) – (h)

Factors differing:

(2) (a) – (c)

Common Law cases preceding s421

Name of Case	Facts	Factors in Sentencing	Sentence (in non-parole period sequence)	Comparison of factors to present case
R v Gazdovic [2002] VSC 588	The offender pleaded guilty to manslaughter. She had killed her domineering and abusive husband of nearly 50 years. The offender killed the deceased with a saucepan and the deceased’s walking stick. The sentencing judge found that the act was ‘marginally excessive self-defence’, and sentenced the woman to a non-custodial sentence. The deceased had threatened to kill the offender with an axe. It was accepted that the offender had initially acted in self-defence, but then continued to inflict violence beyond what was reasonable, so that there was manslaughter by unlawful and dangerous act.	(1) Factors favouring leniency: (a) Plea of guilty. The chance of an acquittal thereby passed up was, in the circumstances of this case, of significant value. (b) Very low level of moral culpability. (c) The offender was aged nearly 70. (d) The offender lived a blameless life. (e) The offender had no prior convictions. (f) The offender spent almost all of her life catering to the excessive needs of an abusive, domineering husband. (g) High level of remorse and contrition. (h) The prospect of rehabilitation couldn’t be higher. (i) The evidence pointed to the conclusion that the offender’s life was at stake. (j) The offender only marginally failed to judge to a nicety when to stop using a walking stick in self-protection. (k) Nothing was to be gained by sentencing the offender to any further period of detention.	The case was adjourned for 2 years whereby the offender was released on the condition of good behaviour and that she appear before the court again if required.	Factors present: (1) (a), (e), (h) – (i) Factors differing: (1) (b) – (d), (f) – (g), (j) – (k)
Regina v Grenenger [1999] NSWSC 380	FACTS: A number of patrons were drinking in a bar in Bargo. Among them were the offender and the deceased. A fight broke out which developed very quickly into an ugly incident involving six of the men. In the course of that expanded fight, the offender picked up a bar stool and struck with it a number of blows to the deceased. One of those blows caused part of one of the metal legs of the bar stool to puncture the right side of the deceased’s skull. The case of the offender at trial was, essentially, one of self-defence. The offender contended that, during the course of the general brawling, the deceased had come towards him clutching a pool cue, and behaving in such a fashion that the offender apprehended personal injury unless he defended himself. The offender contended that the bar stool happened, by unfortunate chance, to be the nearest apparent defensive weapon, and that he had picked it up and struck in quick succession three pre-emptive blows. “In my opinion, the evidence at trial supports amply an affirmative answer to the fourth question [was the offender not acting in self-defence when striking the blow]. I do not believe that a reasonable view of that evidence could sustain a contention that the striking of such a blow as I have earlier described bore such a reasonable proportionality to any demonstrated behaviour of the deceased as would be required by law in order to substantiate the case of self-defence that was put forward at trial”.	(1) Factors favouring leniency: (a) Age - The offender was 22 years at the date of the killing (b) Criminal Antecedents - The offender had only one mid-range drink driving offence that was disregarded by the trial judge. (c) General Personal Characteristics – the offender was of very good character. The offence committed was totally out of character. (d) Contrition – the offender was properly remorseful for the death of the deceased. He did not plead guilty so could not receive leniency to the extent that a guilty plea would receive, but was noted as being very contrite. (e) First time in prison - Any custodial sentence imposed would be the offender’s first substantial experience of full-time imprisonment. (2) Factors favouring stringency: (a) The offender pleaded not guilty to murder.	18 months sentence with a non-parole period of 18 months.	Factors present: (1) (b) – (e) Factors differing: (1) (a) (2) (a)
R v Scott [2003] NSWSC 627	The offender pleaded guilty to manslaughter. The crown accepted the plea on the basis of excessive self-defence. The offender was at the house that she shared with her defacto husband (the deceased). It was accepted by the sentencing judge that the deceased and the offender had been fighting and that the deceased had threatened to kill the offender with a knife and had held it to her throat. The offender hit the deceased with an iron multiple times, causing his death. The offender got a bobcat operator to dig a hole in her backyard in which she buried the deceased’s body.	(1) Factors favouring leniency: (a) The deceased and the offender both had drug and alcohol problems. These problems were highly significant in leading to the incident. (b) The deceased was verbally and physically violent towards the offender on many occasions. However the sentencing judge said that the violent acts were not a regular occurrence. (c) The offender had had a number of unsuccessful pregnancies which contributed to a depressive illness that she suffered at the time of the incident. This led to further fear and anxiety during the incident. (d) A 15% discount was given for the guilty plea. (2) Factors favouring stringency: (a) The burying of the body was an aggravating factor. (b) The attack with the iron was significant. Five blows were received by the deceased. Even though the deceased was stunned, the offender continued to strike with the iron.	5 years sentence with a non-parole period of 2 ½ years.	Factors present: (1) (a), (d) Factors differing: (1) (b) – (c) (2) (a) – (b)
R v Sofokleous (NSWCCA 13/12/1993)	The offender was proceeding to a hotel where he intended to stay the night. Nearby, the deceased was seen trying to drag a woman, a former girlfriend of his, along the street. The woman was crying and trying to get away from the deceased. Two young men intervened between the deceased and the woman. They assisted her to get away. The deceased then acted aggressively towards the two men who also decamped. It was at that point that the deceased approached the offender. A fight broke out in the course of which the offender stabbed the deceased with a knife. The deceased later died from the wounds.	(1) Factors favouring stringency: (a) The offender (who was intoxicated) was carrying the weapon on his body. He stated that this was for the purpose of ‘protection’. The carrying, and subsequent use of the knife was an aggravating factor in the eyes of the sentencing judge, and a factor upheld by the Court of Appeal as significant. (b) It was also demonstrated that the offender had told the investigating police deliberate lies as to his involvement in the fatal affray.	4 years sentence with a non-parole period of 3 years.	Factors present: (2) (b) Factors differing: (2) (a)
Regina v Azar (1991) 56 A Crim R 414	Mr Azar was convicted of having stabbed another man during the course of a brawl involving two groups of young persons. Mr Azar, having participated in the brawl in question, left the brawl while it was still in progress, went to a nearby house from which he obtained the knife used by him in the subsequent killing of the deceased; and returned deliberately and thus armed, to the affray, which he re-joined, and during the course of which thereafter he inflicted the fatal stab wounds upon the deceased	At his trial, the offender asserted, among other things, that he had acted in self-defence. The jury rejected that contention. Gleeson CJ, speaking for the Court of Criminal Appeal, summarised as follows the findings that had been made by the primary Judge as to Mr Azar’s subjective features: (1) Factors favouring leniency: (a) Man of good character. (b) No relevant criminal history. (c) Unlikely to offend again. (d) Genuine contrition. (2) Factors favouring stringency: (a) Went home and retrieved a weapon, returning to stab the deceased.	6 years sentence with a non-parole period of 4 ½ years.	Factors present: (1) (a) – (b), (d) Factors differing: (2) (a)
Shaun Jason O’Donnell v R [2002] SASC 183	Following the offender’s conviction for manslaughter after a trial, the trial judge sentenced the offender, a 20 year old man, to a head sentence of 12 years with a non-parole period of 8 years. The offender, of previously good character, had stabbed the deceased, another young man, three times in the back with a knife during the course of a drunken brawl involving a number of patrons of a suburban pool-hall. The offender and the deceased were both substantially affected by alcohol The offender’s plea of self-defence was rejected and he was sentenced on the footing that his state of intoxication was such that he may not have formed the specific intention to cause serious bodily harm It was held by the SACCA that the sentence was not manifestly excessive and the appeal was dismissed.	The sentencing judge observed: "The carrying of such an offensive weapon was plainly unlawful, and a circumstance of aggravation which must be taken into account. It is stating the obvious to say that, had you not deliberately breached the law by carrying the weapon the offence of which you have been convicted could not have occurred. The fact of the matter is that if a knife is carried, sooner or later it is almost bound to be used. A combination of intoxication and the carrying of such an offensive weapon is a classically lethal formula.” (1) Factors favouring leniency: (a) Age of the offender at the time of the offence – 18 years. (2) Factors favouring stringency: The offender was carrying the weapon at the time of the offence.	12 years sentence with a non-parole period of 8 years.	Factors differing: (1) (a) (2) (a)

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LAST UPDATED: 04/03/2004

[2004] NSWCCA 43

4 March 2004