Ward v R

[2006] NSWCCA 321

Reported Decision: 166 A Crim R 273

New South Wales

Court of Criminal Appeal

CITATION:	Ward v Regina [2006] NSWCCA 321
HEARING DATE(S):	9 August 2006
JUDGMENT DATE:	10 October 2006
JUDGMENT OF:	Tobias JA; Howie J; Rothman J
DECISION:	(a) Appeal against conviction dismissed; (b) Grant leave to appeal against sentence, but dismiss the appeal
CATCHWORDS:	CRIMINAL LAW – Appeal – Against Conviction – s418(2) & s421 of the Crimes Act 1900 – Whether judge’s repeated references to alternative verdict led jury to believe that a complete acquittal was not reasonably open to it. - SENTENCING – Appeal – Manslaughter – Protean character of manslaughter as an offence – It is necessary to establish a trial judge’s discretion miscarried in the House v King sense.
LEGISLATION CITED:	Crimes (Sentencing) Procedure Act 1999, s3A, s21A Crimes Act 1900, s418(2), s421(2)
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Lowndes v The Queen (1999) 195 CLR 665 Markarian v The Queen (2005) 79 ALJR 1048 R v Forbes [2005] NSW CCA 377 R v Hill (1981) 3 A Crim R 397 at 402 R v McDonald (NSWCCA, 12 December 1995) R v Morabito (1992) 62 A Crim R 82 R v Muddle [2004] NSWSC 403 R v Previtera (1997) 94 A Crim R 76 R v Trevenna (2003) 149 A Crim R 505 Vuni v Regina [2006] NSWCCA 171
PARTIES:	Trevor Alan Ward Regina
FILE NUMBER(S):	CCA 2006/258
COUNSEL:	A: T Bellanto QC R: D Woodburne
SOLICITORS:	A: Bradfield Anderson R: S Kavanagh (Public Prosecutions)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2004/31
LOWER COURT JUDICIAL OFFICER:	Whealy J
LOWER COURT DATE OF DECISION:	15 April 2005

CCA 2006/258
SC 2004/31

TOBIAS JA
HOWIE J
ROTHMAN J

Tuesday 10 October 2006

TREVOR ALAN WARD v REGINA

Judgment

1 THE COURT: On 14 March 2005 Trevor Alan Ward (the appellant) was arraigned on an indictment that charged him with the murder of Craig Bradley Buckley (the deceased) on 11 April 2003 at Wetherill Park to which he pleaded not guilty. The trial commenced before Whealy J and a jury of 12 on that date and continued until 22 March 2005 when the jury returned a verdict of not guilty of murder but guilty of manslaughter.

2 The appellant was sentenced by the trial judge on 15 April 2005 to a term of seven years imprisonment to date from 14 February 2005 and to expire on 13 February 2012. His Honour sentenced him to a non-parole period of four years. The first date on which the appellant will be eligible for consideration of release on parole is 13 February 2009.

3 The appellant appeals against his conviction upon the sole ground that he lost the chance to be acquitted of both murder and manslaughter because the trial judge left a finding of manslaughter by reason of an unlawful and dangerous act to the jury. He also seeks leave to appeal against his sentence upon the ground that it was manifestly excessive.

The relevant facts

4 The appellant and the deceased lived next door to one another in Shelley Place, Wetherill Park. The deceased lived at No 15 Shelley Place with his partner, Ms Margaret Hornsy, whose family had previously lived in those premises for some years. The appellant, who was 52 years old at the time of the offence, lived in No 16 Shelley Place with his wife. He has two adult children and three grandchildren.

5 There was a history of animosity between the Ward and Hornsy families, which had existed for a number of years prior to the deceased’s death. Although Ms Hornsy had been away from the family home for a number of years, she had returned to live there with the deceased in 2000. Regrettably, the strained relationship between the families persisted. In particular, in September 2001, there was a physical altercation between the appellant, his son and wife on the one hand, and Ms Hornsy and the deceased on the other.

6 As a result of this affray, the police were called and, ultimately, apprehended violence orders were taken out by each family. Those proceedings were settled on mutual undertakings to the effect that the families would keep away from one another and not otherwise cause a disturbance or nuisance. However, while there does not appear to have been any further physical disputes between the families, the relationship did not improve much during 2002 nor up to the date of the offence on 11 April 2003. A situation developed where there were incidents of mutual annoyance from time to time, but these did not involve the exchange of publicly expressed complaints.

7 Apart from the September 2001 incident, there was nothing in the relationship between the families that foreshadowed the physical violence that occurred on 11 April 2003. On that day the appellant saw his grandchildren and wife off for a shopping trip just before 2pm. Having farewelled his family, the appellant walked to his letterbox, which was on the grassy area adjoining the footpath at the end of his driveway. He collected the mail and proceeded to return up the driveway towards his garage. There was a dispute as to what precisely happened next. The appellant gave one version of events and a neighbour living across the road, a Mr Murray Dine, gave another. Although there were no major points of difference between the two, there was a dispute as to whether or not the appellant had returned to his garage and collected a letter opener (which was ultimately used as a weapon) to open his mail while he was near the garage.

8 As a consequence of the jury’s verdict, the trial judge found in his Remarks on Sentence that the appellant had the letter opener or knife in his hand when he went to the letterbox and that the deceased’s unprovoked attack on the appellant occurred when the former was returning to his garage and was approximately half way up his driveway. For present purposes, the appellant accepted that this was accurate. The letter opener was in fact a pen knife and the trial judge accepted that, prior to the commission of the offence, it was in the appellant’s hand for the entirely innocent purpose of opening his mail. There was no suggestion that he had any intention of being involved in any type of confrontation with the deceased when he went down to his letterbox.

9 At about the time the appellant was farewelling his family and walking down towards his letterbox, the deceased had returned home and reversed his vehicle up his driveway towards the front door of his house. By the time the appellant was half way up his driveway, having collected his mail, the deceased, who was on his side of the common boundary between the two properties and standing a little further up his driveway, began to call out in a chanting voice “Trevor, Trevor, you old fat fool”. The appellant made a dismissive motion towards the deceased and said something to him. The deceased came closer and said to the appellant, “You think you’re a real smart ass, don’t you mate?”. The appellant waved him away and said “Piss off, what’s wrong with you?”. At that moment the deceased moved across the common boundary onto the appellant’s property and kicked him in the lower abdomen. It was a hard kick as the deceased was wearing steel capped working boots. He then said to the appellant “I am going to kill you, f****ing inbreeds”. He again kicked the appellant, this time in the area of his left testicle.

10 The appellant stepped back whereupon the deceased adopted a boxing stance and moved threateningly towards him. He then threw a punch to the side of the appellant’s head, striking him under the left ear. It was at this moment that the appellant delivered the fatal blow. He was holding the knife in his right hand in the same manner, more or less, as he had been when using it to open his mail. According to Mr Dine, who saw the appellant standing facing the deceased, the appellant responded with a round arm hit, with his body turning at the waist and his right arm “arcing” around at shoulder height towards the deceased’s chin or neck on the left hand side of his head.

11 After the appellant hit him, the deceased staggered back, turned and walked away behind his car up the stairs to his porch, after which he vomited and collapsed.

12 The forensic evidence established that the point of the knife had entered the deceased’s neck and had plunged downwards cutting his windpipe and then the top of his lung. He apparently bled to death.

13 There was general agreement between the two forensic pathologists that the blow could have been administered in two ways. Both men may have been standing upright when the knife was plunged down into the deceased’s throat; or, alternatively, the knife wound may have appeared to have resulted from a downward thrust because the deceased had been bent forward towards the appellant, but at an angle away from him, in a boxing pose .

14 The trial judge considered that the latter was more likely, given that the deceased had adopted a boxing stance, and that both men had been moving at a rapid rate in the confrontation that transpired after the deceased delivered two kicks and a punch to the appellant.

The parties’ case at trial

15 It was the Crown’s case that the appellant deliberately stabbed the deceased with the intention of killing him or at least causing him grievous bodily harm. Further, it alleged that the appellant’s retaliation was not motivated by self-defence but rather by vengeance. On the other hand, the appellant maintained that the stabbing act was accidental and not deliberate, and that it was not accompanied by any intention to kill or cause serious physical injury to the deceased.

16 Thus the appellant gave sworn evidence stating that he did not form an intention to strike the deceased with the knife by way of self defence. Rather, he maintained that he had no recollection of stabbing the deceased at all, that he had not done so deliberately, and that it was a reflex action and not a conscious act on his part. In essence, his case was that he did not stab the deceased in order to defend himself, that he did not deliberately stab him and that he had no intention of harming anyone including the deceased.

The trial judge’s directions to the jury

17 The trial judge summed up to the jury in significant detail and in a manner which did not, at the time, elicit any complaint or any request for any redirection or further directions from the appellant’s counsel. His Honour made it clear to the jury that the offence of murder carried with it an alternative charge, namely that of manslaughter, so that there were three alternative verdicts available to it: guilty of murder, not guilty of murder but guilty of manslaughter, and not guilty of either.

18 It was common ground that if the jury accepted the appellant’s version of what happened then the Crown would have failed to prove his guilt in respect of either murder or manslaughter. This was because his version, if accepted as a reasonable possibility, suggested that the deceased’s death was accidental and, in particular, that the act which brought about his death could not have been deliberate. A deliberate act causing death is an essential element of both murder and manslaughter.

19 In this respect his Honour also made it clear to the jury (at SU 29 and 61) that if the Crown was unable to persuade it that the appellant had deliberately stabbed the deceased, then that was the end of its case and no question of murder or manslaughter arose. The appellant would then have been entitled to a verdict of not guilty to both murder and manslaughter.

20 The trial judge directed the jury (at SU 39 and MFI 8) that a verdict of murder was available if the Crown proved beyond reasonable doubt that the appellant:

(a) deliberately stabbed the deceased causing his death;

(b) intended to kill the deceased or cause or inflict upon him grievous bodily harm, that is, really serious physical injury; and

(c) did not personally believe that it was necessary for him to do what he did in self defence.

21 His Honour further directed the jury (in MFI 8) that a verdict of not guilty of murder but guilty of manslaughter was available if they:

(a) were satisfied beyond reasonable doubt that the appellant deliberately stabbed the deceased causing his death; and

(b) were satisfied beyond reasonable doubt that the appellant intended to kill the deceased or to cause him grievous bodily harm; and

(c) if they were left with a reasonable doubt as to whether he personally believed that it was necessary for him to do what he did in self defence, but were nevertheless satisfied beyond reasonable doubt that his response was not reasonable in the circumstances as he perceived them.

22 Although it makes no difference to the basis advanced by the appellant in support of his appeal against conviction, element (c) above appears, with respect, to be at least confusing and it would have been better had his Honour inserted after the words “self defence” the words “but were of the view that there was a reasonable possibility that he did hold such a belief”. We mention this matter only because such a direction would have been consistent with the written direction given by the trial judge to the jury in par 5 of MFI 7 and the oral directions set out at SU 72. Without the additional words, the direction arguably does not make clear that the Crown must prove beyond reasonable doubt that the accused did not personally believe that it was necessary for him to do what he did in self-defence.”

23 The foregoing direction was consistent with s418(2) of the Crimes Act 1900 (the Act). If all these elements were satisfied, it would amount to a case of excessive self defence and, therefore, manslaughter.

24 The trial judge directed the jury (in MFI 8 and at SU 84) that, as an alternative, they could consider a verdict of not guilty of murder but guilty of manslaughter if they had a reasonable doubt as to whether the appellant intended to kill the deceased or to cause him grievous bodily harm but were nevertheless satisfied beyond reasonable doubt that:

(a) the appellant deliberately stabbed the deceased causing his death; and

(b) his act was unlawful and dangerous; and

(c) he was not acting in self defence either because he did not personally believe that it was necessary to do what he did in self defence, or

(d) if there was a reasonable doubt about that, it was nevertheless satisfied beyond reasonable doubt that his act was not a reasonable response in the circumstances as the appellant perceived them to be

25 This direction accorded with the requirements of s421 of the Act which relevantly provides as follows:

“(1) This section applies if:
(a) the person uses force that involves the 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
(d) …
(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.” (Emphasis added.)

26 Finally, the trial judge directed the jury that unless, in accordance with the various alternatives referred to by him which we have set out above, they were satisfied beyond reasonable that the accused was guilty of either murder or manslaughter, they must bring in a verdict of not guilty.

27 Section 418(1) provides that a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence. However, to so qualify, the person must believe that his or her conduct was necessary to defend himself or herself and that that conduct was a reasonable response in the circumstances as he or she perceived them. It was accepted that, pursuant to s419 of the Act, the prosecution had the onus of proving beyond reasonable doubt that the appellant did not stab the deceased in self-defence.

28 The trial judge made it clear in both his summing up and written directions to the jury that depending on the evidence, those findings might lead to a verdict of guilty of murder or guilty of manslaughter or not guilty of either murder or manslaughter.

The appellant’s submissions on his appeal against conviction

29 In essence the appellant’s submission was that as a consequence of the trial judge’s repeated reference to manslaughter as an alternative to murder, the jury may well have been left with the impression that this was a case of either murder or manslaughter and that a complete acquittal was not reasonably open to it. It was accepted that his Honour had referred to the alternative verdict of not guilty of both murder and manslaughter but it was contended that this was in the context of the requirement that, in order to obtain a verdict on either offence, the Crown must prove a deliberate act on the appellant’s part.

30 It was submitted that this alleged error was due to the trial judge’s repeated references to an unlawful and dangerous act as the basis of manslaughter. By leading the jury to the possibility of manslaughter based upon an unlawful and dangerous act, it was contended that they were being invited to reach the compromise verdict of manslaughter.

Do the appellant’s submissions have merit?

31 We believe that the appellant’s submissions should be rejected. His case, according to his written submissions on the appeal, was that the deceased’s death was an accident, an involuntary act or, in the alternative, self defence. In particular, the appellant’s case at trial was that he had not deliberately stabbed the deceased; nor had he intended to kill the deceased or to cause him grievous bodily harm or, for that matter, any harm whatsoever.

32 It is clear from the jury’s verdict that they found beyond reasonable doubt that the appellant had deliberately stabbed the deceased causing his death. This, as we have already observed, was an element that was common to both murder and manslaughter. Although both offences require the jury to be satisfied beyond reasonable doubt that the appellant deliberately stabbed the deceased causing his death, the essential difference between the two offences was that, in the case of murder, the jury were required to be satisfied beyond reasonable doubt that he intended to kill him or cause him grievous bodily harm. The alternative of manslaughter by an unlawful and dangerous act was required to be left to the jury if they were left with a reasonable doubt as to whether the appellant intended to kill the deceased or cause him grievous bodily harm. This was on the cards, as it were, given the appellant’s explicit defence that he had no such intent coupled with the circumstances in which the single blow was delivered by the appellant and the weapon he used in doing so.

33 Furthermore, another difference between the two forms of manslaughter is that in the first (excessive self-defence), the jury must find that there was a reasonable possibility that the appellant personally believed that it was necessary for him to do what he did in his own defence or at least had a doubt about that matter but were satisfied beyond reasonable doubt that his response was not reasonable in the circumstances as he perceived them to be. In the alternative version (manslaughter by an unlawful and dangerous act) the jury must be satisfied beyond reasonable doubt that the appellant was not acting in self defence because he did not personally believe that it was necessary for him to do what he did in self defence and, further, that they were not satisfied to the requisite degree that he intended to kill the deceased or inflict grievous bodily harm upon him. This also was on the cards in light of the appellant’s sworn evidence that he was not acting in self-defence.

34 In summary, therefore, and given the nature of the appellant’s case at trial, a verdict of manslaughter could have arisen in two ways once the jury determined beyond reasonable doubt that the he deliberately stabbed the deceased and depending upon what finding they came to on the issue of self-defence. Thus, if they accepted that there was a real possibility based upon his testimony and the other evidence in the Crown case, that he neither had the intention necessary for murder nor was acting in self defence, he would have been guilty of manslaughter based upon the fact that his act was both unlawful (because he did not act in self-defence) and dangerous (a matter about which there was no dispute).

35 On the other hand, if the jury found that the appellant was acting in self-defence but his response was unreasonable, he would have been guilty of manslaughter on the basis of excessive self-defence even though the jury found that he intended to kill or inflict grievous bodily harm upon the deceased. Of course, a finding on the issue of intent will also be relevant to a consideration of the reasonableness of the response. Further, in order to constitute manslaughter on the basis of excessive self-defence, the jury would need to be satisfied beyond reasonable doubt that his act was unlawful and dangerous or for some other reason that he was criminally responsible for the offence of manslaughter.

36 As we have indicated, the alternative direction of the primary judge with respect to manslaughter was based upon s421 of the Act. That section assumes that the jury was satisfied beyond reasonable doubt that the appellant deliberately stabbed the deceased causing his death and believed that that conduct was necessary to defend himself, but that the conduct was nevertheless not a reasonable response in the circumstances as he perceived them.

37 A finding beyond reasonable doubt of these three elements would constitute a finding that the accused was not acting in self defence as his conduct was not a reasonable response in the circumstances as he perceived them to be. Accordingly, s421(2) provides that such a person is to be found guilty of manslaughter but only if he or she is otherwise criminally responsible for manslaughter.

38 For the purpose of s421(2), an accused may be otherwise criminally responsible for manslaughter if his conduct was both unlawful and dangerous. The fact that the jury has found beyond reasonable doubt that the response of the accused was unreasonable would mean that his act was unlawful. It may be doubted whether there can be any factual situation realistically arising where a jury could find that the accused killed another while acting unreasonably in self-defence yet not otherwise be guilty of manslaughter by having caused death by an unlawful and dangerous act. Yet it was obviously the intention of the legislature that an accused should not be found guilty of manslaughter by reason of excessive force in self-defence under the provision where, but for the existence of s 421, the accused would not otherwise have been guilty of manslaughter.

39 It follows, therefore, that the trial judge was required to direct the jury that if it was not satisfied beyond reasonable doubt that the appellant intended to kill the deceased or to cause him grievous bodily harm, nevertheless it could find him guilty of manslaughter and, in fact, that it must do so if in terms of s421(1),

(a) he deliberately used force that involved infliction of death; and

(b) his conduct was not a reasonable response in the circumstances as he perceived them (and was therefore unlawful);

(c) he believed that conduct was necessary to defend himself; but

(d) that that conduct was dangerous.

40 The appellant had put in issue the question of whether he deliberately stabbed the deceased on the one hand and, on the other, whether he intended to kill him or cause him grievous bodily harm. Moreover, in so doing, he had denied that he was acting in self defence. It was therefore incumbent upon the trial judge to direct the jury with respect to the offence of manslaughter whether or not they were satisfied beyond reasonable doubt that the appellant did intend to kill the deceased or cause him grievous bodily harm.

41 If the jury were satisfied that the stabbing was a deliberate act of the applicant and was committed with the intent to kill the deceased or inflict upon him grievous bodily harm, his Honour was required to direct them that the appellant would be guilty of manslaughter where they found that there was a reasonable possibility that he believed his conduct was necessary in his own self-defence but where they were satisfied beyond reasonable doubt that his response was not reasonable in the circumstances as he perceived them to be.

42 Where the jury were satisfied beyond reasonable doubt that the stabbing was a deliberate act but were not satisfied of an intention on the part of the appellant to kill the deceased or inflict upon him grievous bodily harm, his Honour was required to direct the jury that the appellant would be guilty of manslaughter if they were satisfied beyond reasonable doubt that he was not acting in self defence but were satisfied to the requisite degree that his act was both unlawful and dangerous. The trial judge would be entitled to direct the jury that, if they were satisfied beyond reasonable doubt that the appellant was not acting in self-defence, then there was no basis on the evidence upon which they would be entitled to find other than that the act of stabbing was unlawful.

43 Although s 421(2) of the Act provides that a person who acts with excessive force in self-defence is to be found guilty of manslaughter “if the person is otherwise criminally responsible for manslaughter”, it does mean that a trial judge must direct the jury that they must be satisfied beyond reasonable doubt that the accused is otherwise guilty of manslaughter before finding him guilty of the offence on the basis of excessive force in self-defence. On the other hand, it cannot be, as the appellant contends, that it was an error for the trial judge to direct the jury, as his Honour did in the present case, that the jury had to be satisfied to the requisite degree that the act of the appellant was both unlawful and dangerous.

44 In the foregoing circumstances, in our opinion the appellant’s challenge to his conviction for manslaughter should be rejected.

Was the sentence imposed upon the appellant manifestly excessive?

45 In his Remarks on Sentence (at [14]) the trial judge:

(a) was satisfied beyond reasonable doubt that the accused deliberately stabbed the deceased and that he did so because he perceived that he was in danger of further serious physical attack and sought to defend himself by stabbing the knife towards the deceased’s neck;

(b) was not satisfied beyond reasonable doubt that the appellant intended to kill the deceased but was so satisfied that when he struck out with the knife he intended to cause serious physical harm; and

(c) was satisfied beyond reasonable doubt, consistent with the jury’s verdict, that the appellant’s conduct in stabbing the deceased with the knife was not a reasonable response in the circumstances as he perceived them to be.

In other words, his Honour considered that the jury’s verdict was consistent only with a verdict of manslaughter based on excessive self defence.

46 In considering the objective seriousness and degree of culpability involved in the commission of the offence of manslaughter by the appellant, his Honour noted (at [19]) that it was a particularly serious crime since it involved the taking of a human life. In so doing he referred to R v Hill (1981) 3 A Crim R 397 at 402; R v McDonald (NSWCCA, 12 December 1995). He then referred to the overall purposes of sentencing as set out in s3A of the Crimes (Sentencing) Procedure Act 1999 (the Sentencing Act) and to the matters set out in s21A of that Act.

47 In [22] of his Remarks on Sentence the trial judge referred to the use of a knife as being one of a number of prima facie aggregating factors under s21A. He observed that the offence involved the actual use of violence and that the appellant had a previous conviction for assault involving the use of a knife. However, it was only the use of a knife that he considered to be an actual aggregating factor in the circumstances.

48 On the other hand, his Honour considered (at [23]) that there were also a number of mitigating factors, some of which were important in relation to the impact of the assessment of the overall level of criminal culpability involved in the offence of which the appellant had been convicted. Thus he found that the commission of the offence was not part of a planned criminal activity; that the appellant had been provoked in a general sense by the deceased’s actions; that he was a person of good character and was unlikely to re-offend; that by reason of his age and circumstances he had good prospects of rehabilitation; that he had tried to organise assistance for the deceased immediately after the stabbing; and that he had demonstrated in a practical sense a degree of remorse for his actions although he was no doubt concerned about his own position as well. The last mentioned factor notwithstanding, his Honour accepted that a degree of remorse was present.

49 His Honour emphasised that the appellant had been set upon by the deceased and attacked in quite an aggressive manner and plainly enough was in fear for his life and safety. The deceased was younger, bigger and fitter than the appellant and was clearly the aggressor in the physical confrontation that occurred.

50 His Honour then referred (at [24]-[26]) to the appellant’s subjective case, which included a substantial number of character references from friends and family. He accepted that the appellant was generally a person of good character and reputation. At the time of sentencing he was 54 years old and, apart from the minor assault matter, had no criminal history. He had two adult children and three grandchildren. As a consequence of the incident his family had been required to sell the family’s Wetherill Park home and move to the country, which involved some expense and emotional upheaval.

51 His Honour further noted that the appellant had been in gainful employment for most of his working life, generally in the fire protection industry. The character references described him as a hardworking, strong family man who was normally placid and not given to violence of any kind. He had been in a stable married relationship for many years. His Honour noted that he had originally been discharged at committal but later brought before the court on an ex officio indictment. However, after several days’ deliberation the first trial ended with a hung jury. It was submitted, and his Honour indicated (at [28]) that he had taken into account, that the appellant had suffered a degree of punishment as a consequence of having had to endure two trials.

52 After referring (at [29]) to a victim impact statement made on behalf of the deceased’s sister, mother and father, but to which he did not consider appropriate to have regard in the determination of the sentence to be imposed (R v Previtera (1997) 94 A Crim R 76), his Honour then turned to the question of the appropriate sentence. In this regard he said:

“30. What then is an appropriate sentence to impose in the present matter? The sentence to be imposed must acknowledge the principles I have set out earlier in these remarks in relation to the denunciatory role of sentencing particularly in the case of manslaughter. It is important in my view that those principle not be devalued or debased in any way. Moreover, there is a need in the present matter that the penalty to be imposed here should act as a deterrent not only to this offender, as I am sure it will, but to other persons. Although I have specifically found here that the offender was carrying the knife in his hand for a completely innocent purpose at the time of the attack nevertheless he wielded it in a deadly fashion when he was set upon by the deceased. It is hardly necessary to point out that the holding and use of a dangerous weapon such as a knife during a neighbourhood squabble is potentially a very dangerous activity. Even where the response of an offender, as here, is predicated upon his belief that he needs to take action to defend himself, the possibility that serious injury or death will occur is very high indeed in circumstances where a knife is being wielded. So it was in this tragic and sad case. As I have said, there is a strong need to deter people in situations of domestic or neighbourhood stress from overreacting when armed or equipped with a dangerous implement such as a knife. Contrary to submissions made on the offender’s behalf the sentence must, in my view, reinforce that aspect of general deterrence.
31. For these reasons the sentence to be imposed must denounce the offender’s actions and must recognise the seriousness involved in an unreasonable response in a self-defence situation where the life of a human being has been taken away. I have considered other alternatives but it is my view that a full time custodial sentence is required in the present matter.”

53 His Honour then concluded (at [34]) that the appellant’s culpability in the present case was by no means at the highest level and that there were a number of mitigating factors which he had taken into account and, in addition, that the appellant’s subjective circumstances were strong.

54 After observing that there was no standard non-parole period sentencing scheme with respect to the offence of manslaughter under the new Division 1A of the Sentencing Act and the new s44 because of the disparate circumstances that might occur in relation to such an offence, his Honour considered (at [37]) that an overall sentence of seven years was necessary in order to reflect the various considerations which he had previously discussed. He then determined that the appellant should be sentenced to seven years with a non-parole period of four years.

The appellant’s submissions on sentence

55 The appellant submitted in both his oral and written submissions that in a case of excessive self defence, particularly where the sentencing judge accepted that he was holding the knife in question for an innocent purpose, general deterrence should play a lesser role because of the spontaneous manner in which the incident occurred.

56 The appellant thus submitted that he would have had very little opportunity to reflect and consider his position. His Honour had found that the appellant had deliberately stabbed the deceased because he perceived that he was in danger of further serious physical attack and that he had sought to defend himself by stabbing the knife towards the deceased’s neck in circumstances where the combination of kicks, a blow to the face and threatening words by the deceased led him to believe that it was necessary for him to act in his own self-defence. Nevertheless, his Honour had specifically found that the appellant had had little time to think about the situation or to calmly reflect on other alternatives.

57 Furthermore, immediately after the incident the appellant called out to Mr Dine to ring the emergency services and within a few minutes called 000 himself for assistance. After the police arrived, the evidence was that the appellant was in shock, distressed, upset and deflated by what he had done. The appellant accepted that the factual circumstances giving rise to the offence of manslaughter were many and varied and that it was difficult to draw an accurate framework from other cases within which to determine a range or tariff within which a particular sentence should be imposed. Nevertheless he acknowledged that the taking of a human life was very serious.

58 Given the persuasive mitigating factors to which the sentencing judge had referred, it was submitted that a sentence of seven years imprisonment was outside an appropriate range for the offence in the circumstances in which it had occurred. The same submission was made with respect to the non-parole period of four years.

Was the sentence imposed by the sentencing judge manifestly excessive?

59 In the course of his written submissions the appellant referred to the decision of this Court in R v Trevenna (2003) 149 A Crim R 505 where at 516 [41] Santow JA noted that

“the difficulty of attributing a meaningful sentencing range, where ‘of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability’. “

60 In his judgment in the same case, Barr J said (at 530) (omitting case references)

“97. 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 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 (NSW), 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.’

98. 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 when he aid (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 v The Queen:
“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.” ‘

99. 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.
100. 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. … ”

61 To similar effect, in R v Forbes [2005] NSW CCA 377, Spigelman CJ, with whom McClellan CJ at CL and Hall J observed (omitting case references):

“133. As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in R v Blacklidge ). In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder ( R v Weinman ; R v Hoerler ).
134. It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter .
135. For example where diminished responsibility is relied upon, the extent to which culpability is ‘diminished’ can vary considerably from case to case. Similarly, although it is possible to characterise a number of cases as ‘child-killing by a parent or carer’, it may never be possible to identify a sentencing patter or tariff from the whole body of such cases. (See Hoerler ). This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence ( R v Trevenna ).
136. The test established by s418 of the Crimes Act is whether ‘the conduct is a reasonable response in the circumstances as he or she perceives them’. Such a test must depend on the characteristic and conduct of the deceased and also the nature of the response, in all of the circumstances of the particular case, on the part of the accused. A test of such a wide-ranging character is unlikely to lead to anything in the nature of a sentencing pattern or tariff in which the decisions on one case are of any particular utility for another.”

62 In his judgment, Hall J (at [190]) recorded that the difficulty of establishing a sentencing pattern in cases of manslaughter had long been recognised. His Honour then set out an number of propositions on this point, which he derived from other judgments of the court. The gravamen of those propositions was that in the case of manslaughter it is peculiarly difficult to discern a range of commonly imposed sentences. Such sentences varied greatly because of the great variations in the circumstances of individual instances of the offence. Accordingly, it was erroneous to place too much store on any sentencing survey, let alone to look for a medium or average outcome: R v Morabito (1992) 62 A Crim R 82 at 86.

63 His Honour then set out a schedule of some nine cases to illustrate the point he was seeking to make. One of those analysed was R v Muddle [2004] NSWSC 403, upon which the appellant relied in the present case. The offender in that case was found guilty of manslaughter on the basis of excessive self-defence and was sentenced to six years imprisonment with a non-parole period of three years. Factors taken into account by the sentencing judge were that the offender had reasonable prospects of rehabilitation and was unlikely to re-offend, that the weapon was a household implement used in self defence, and that the offender had not previously served a period of imprisonment and had committed previous offences but not such as to be regarded as an aggravating factor. It was submitted that there were similarities between that case and the present sufficient to justify the submission that the sentence imposed by the trial judge was manifestly excessive.

64 The circumstances in which a court of criminal appeal can intervene to increase or reduce a sentence upon manifestly excessive or manifestly inadequate grounds were discussed by the High Court in Dinsdale v The Queen (2000) 202 CLR 321. In their joint judgment, Gleeson CJ and Hayne J said (at 325 [6]) that

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reason of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather that non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached.”

65 Furthermore, Gaudron and Gummow JJ (at 329 [22]) observed that the question before the Court of Criminal Appeal (from which the appeal to the High Court had been brought) was whether, in terms of House v The King (1936) 55 CLR 499 at 505, the result reached by the trial judge had been

“upon the facts … unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court at first instance. Was the sentence ‘manifestly wrong?’ ”

66 In his judgment, Kirby J (at 339 [57]) cited the following passage from the judgment of the High Court in Lowndesv The Queen (1999) 195 CLR 665 at 671-672 [15] where the Court remarked that

“a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion …The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.”

67 Kirby J then continued (at 339-340):

“58. Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (an unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge with incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations or a mistake as to the facts: House v The King (1936) 55 CLR 499 at 505.
59. As on appeal from discretionary decisions, it will sometimes not be possible to identify, with exactness, an error of the foregoing kind; yet the result that is challenged may be so manifestly unreasonable or plainly wrong that the appellate court would be able to infer that, in some identified way, there has been a failure to exercise the power properly. In appellate review of sentencing, it will commonly be the case that the appellate court’s authority to intervene would derive from the conclusion that the resulting order is so disproportionate to the matter to which it relates as to afford the foundation for concluding that, in some way, the exercise for the powers of the primary judge has miscarried.
60. The existence of this residual basis for appellate intervention is well-established. In fact, it is inherent in the provision by statue of a facility to appeal against sentence to a court of criminal appeal. It enables such a court to correct ‘idiosyncratic views’ of it individual judges about punishment for particular crimes and types of crime and replace a sentence that is manifestly disproportionate in the circumstances. Such disproportion can arise where the punishment imposed is considered to be plain excessive.”

68 In Markarian v The Queen (2005) 79 ALJR 1048 Gleeson CJ, Gummow, Hayne and Callinan JJ in a joint judgment observed at 1055 [25] as follows:

“As with other discretionary judgments, the enquiry on an appeal against sentence is identified in the well-known in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King , itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken. Has the sentencer not taken some material consideration in account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’. “

69 Having noted that the passing of a sentence is a discretionary judgment, their Honours (at [27]) observed that

“As the bases for appellate review revealed, what is required is that the sentencer must take into account all relevant considerations (and only relevant considerations) in forming the conclusion reached. As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and accords with the statutory regime that applies.”


See also, Vuni v Regina [2006] NSWCCA 171 at [29], [33].

70 According to the foregoing authorities, the position is this. First, the offence of manslaughter is almost unique in its protean character as an offence and, consequently, the identification of an available range of sentences in any individual case is notoriously difficult, if not impossible. It is thus rare for there to be any real comparison between facts.

71 Second, matters of fact and degree arise in all categories of manslaughter, with the consequence that it is impossible to establish a pattern or tariff. This applies not only to manslaughter generally, but also to cases of manslaughter by reason of excessive self-defence.

72 Third, in order for an appellate court to intervene with respect to a sentence imposed upon the ground that it is manifestly excessive, it is necessary for an appellant to establish that the sentencing judge’s discretion has miscarried in the House v The King sense and, relevantly to a case such as the present, that the sentence imposed was so disproportionate to the circumstances in which the offence occurred as to afford the foundation for concluding that the sentencing judge’s exercise of his sentencing discretion had miscarried.

73 Fourth, such disproportion must result in the sentence imposed being unreasonable or plainly unjust.

74 Fifth, such a result cannot follow merely because a member of the appellate court may have exercised their discretion, had they been the first instance judge in a manner different from that of the sentencing judge.

75 No complaint was made by the appellant to suggest that the sentencing judge had not taken into account all relevant considerations although it was submitted that he had given inappropriate weight to the question of general deterrence when he said (at [30]) that there was

“a strong need to deter people in situations of domestic or neighbourhood stress from overreacting when armed or equipped with a dangerous implement such as a knife. Contrary to submissions made on the offender’s behalf the sentence must, in my view, reinforce that aspect of general deterrence.”

76 The appellant, as was required of him, acknowledged the undoubted fact that the taking of a human life by a deliberate act intended, as his Honour found, to cause serious physical injury was a matter of the most serious kind. Both the Ward and Hornsy families had been neighbours for many years but had exhibited a deal of animosity towards each other which had rubbed off onto the deceased. Regrettably, we would not think that was either an unusual or unique phenomenon. Strained relationships between neighbours are more commonplace than they should be in this day and age. In these circumstances, it was well within the discretion of the sentencing judge to give the weight he obviously did to that aspect of general deterrence.

77 The sentencing judge was also well aware of the mitigating circumstances upon which the appellant relied and, in our view, gave them appropriate weight. His Honour had a substantial discretion in sentencing the appellant for the offence of manslaughter and it has not been demonstrated that the sentence which he imposed fell outside the range of a proper exercise of his sentencing discretion.

78 In all the circumstances therefore, we are unable to conclude that the sentence of seven years imprisonment with a non-parole period of four years could be regarded as so manifestly disproportionate in the circumstances of the case as to justify appellate intervention on the basis that the sentence was plainly unjust.

79 Accordingly, we would grant leave to appeal against the sentence but dismiss the appeal.

Conclusion

80 The appellant’s challenges to both his conviction and the sentence imposed upon him should be rejected. Accordingly, we would make the following orders:

(a) Appeal against conviction dismissed.
(b) Grant leave to appeal against sentence, but dismiss the appeal.

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