Sentence for Manslaughter Due to Excessive Self-Defense

The defendant was sentenced for manslaughter after using excessive force in self-defense, resulting in the death of another individual. The court considered the circumstances and imposed a sentence reflecting the severity of the offense.

New South Wales Supreme Court

CITATION : R v [NAME] [2007] NSWSC 1136

HEARING DATE(S) : 31 August 2007 (Submissions on Sentence)

JUDGMENT DATE : 12 October 2007

JUDGMENT OF : Latham J

DECISION : [NAME], for the manslaughter of [NAME], sentenced to a non parole period of 2 years to date from today, 12 October 2007 to expire 11 October 2009, the additional term being one year and four months expiring 11 February 2011. Eligible for release to parole on 12 October 2009. (7 days pre-sentence custody taken into account in imposing sentence).

CATCHWORDS : Sentence - Manslaughter - Excessive self-defence - significant degree of recklessness.

PARTIES : [NAME] - [NAME](S) : SC 2006/2879

COUNSEL : [redacted]

SOLICITORS : [redacted]

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

LATHAM J

12 OCTOBER 2007

2006/2879 [NAME] v [NAME]

JUDGMENT 1 [NAME], pleaded guilty to Manslaughter on 6 July 2007 in full discharge of an indictment charging Murder. The Crown accepted the plea on the basis that [NAME]'s conduct caused the death of the [NAME], on 29 January 2005, that [NAME] believed that his conduct was necessary in defence of himself or of others, but that it was not a reasonable response in the circumstances, in that [NAME] used excessive force. The offence of Manslaughter carries a maximum penalty of 25 years imprisonment. 2 [NAME] stands to be sentenced on the basis of an agreed statement of facts. No other material relating to the objective circumstances of the offence was provided. That statement of facts establishes that on 26 January 2005, the [NAME] and his girlfriend, [NAME], went to [NAME]'s home to see [NAME]'s younger brother, [NAME]. The [NAME] was moderately affected by alcohol at the time of his arrival at about 8:15pm. 3 [NAME] and the [NAME] consumed a number of full-strength beers over the following hour, at which time [NAME] arrived with his wife and their seven year old daughter. [NAME] consumed two glasses of wine with his brother and the [NAME], both of whom were on good terms and were engaging in vigorous "horseplay". The evening continued in this fashion until about 11pm. 4 Shortly after 11pm, [NAME]'s wife and their daughter left the premises to buy cigarettes at a local service station. [NAME], his brother and the [NAME] went outside, then returned to the lounge-room. By this time, [NAME]'s brother was telling the [NAME] to go home and the play fighting had escalated to the point where [NAME]'s brother challenged the [NAME] to hit him. The [NAME] responded by removing a bracelet he was wearing and passing it to his girlfriend, who suggested they leave. [NAME] left the house and went to her car, expecting the [NAME] to follow. 5 [NAME]'s wife and their child returned to the house. [NAME] again urged the [NAME] to leave and this time, the [NAME] did leave the house, together with [NAME]'s brother. Both these men were heavily intoxicated at this stage. [NAME] was seated in the car, the [NAME] punched [NAME]'s brother, knocking him unconscious onto the ground. The [NAME] then returned to the house, his shirt wrapped around his head, and stood looking into the premises while [NAME] made a 000 call at about 11:20pm. [NAME]'s wife told the [NAME] to go, however the [NAME] responded by pushing her and headbutting her twice in the nose. Hearing her cries for help, [NAME] went to her aid, exchanging punches with the [NAME] and wrestling him to the floor. 6 [NAME] heard screams and returned to the house, where she saw [NAME] holding the [NAME] face down on the lounge, with [NAME]'s right arm wrapped around the [NAME]'s neck and [NAME]'s body lying the full length along the [NAME]'s back. Pressure was being applied by [NAME]'s forearm to the [NAME]'s throat. Any movement by the [NAME] was met with further pressure to the throat. The [NAME] lost consciousness and began to make noises consistent with restrictions to his airway. [NAME] warned [NAME] that his actions were capable of killing the [NAME] but [NAME] maintained his grip. [NAME] felt for the [NAME]'s pulse and asked [NAME] to put the [NAME] in the car, but [NAME] said he was not taking any risks and would wait until help arrived. 7 [NAME] went outside for about five to ten minutes and when she returned, [NAME]'s position and his grip upon the [NAME] had not changed. [NAME] noticed that the [NAME]'s fingers were going purple. [NAME]'s wife and [NAME] could not find a pulse at that stage. [NAME]'s wife told [NAME] to place the [NAME] on the floor and he complied. Shortly thereafter, [NAME] and his wife began performing CPR in an attempt to revive the [NAME]. A call was made for an ambulance at about 11:55pm. When the ambulance arrived, CPR was continued until a pulse was retrieved, but the lengthy deprivation of oxygen resulted in significant brain injury, ultimately leading to the [NAME]'s death three days later. 8 The post mortem examination revealed severe neck compression. A complete cessation of air for no more than three minutes was sufficient to cause irreversible damage to the brain. It is apparent that [NAME] maintained and, on occasions, increased his hold on the [NAME]'s throat for a significantly longer period than three minutes, despite [NAME]'s warning and despite objective signs, namely the noises emanating from the [NAME]'s throat, that the [NAME] had lost consciousness. 9 It is difficult to be precise, but it is unlikely that more than five minutes elapsed between the 000 call and [NAME]'s return to the house to see the [NAME] being held by [NAME]. [NAME] was alerted by the screams of [NAME]'s wife, which co-incided with the [NAME]'s assault upon her, almost contemporaneously with the 000 call. There is no reliable evidence before me as to the length of time during which [NAME] and his wife were performing CPR prior to calling the ambulance. [NAME]'s evidence was that he was not choking the [NAME] for 10 whole minutes, but he conceded that he was on top of the [NAME] on the lounge, applying varying degrees of pressure to the [NAME]'s throat for 10 minutes. In any event, [NAME] was hardly in a position to accurately gauge the passage of time.

10 I cannot make a definitive finding in terms of the precise duration of [NAME]'s conduct causing death, but I am satisfied beyond reasonable doubt that [NAME] restrained the [NAME] on the lounge for more than 10 minutes and that for much of that time, the [NAME]'s airway was severely restricted. [NAME] acknowledged in his evidence that he intended to restrain the [NAME] and that the restraint he applied was designed to restrict the [NAME]'s air supply, albeit he did not intend to choke the [NAME]. [NAME] thought that the [NAME] represented a threat to himself and to his wife and their child, and that the [NAME] may have been "playing possum". 11 I accept that [NAME] genuinely perceived the [NAME] as a threat, but a sober man of mature years, such as [NAME], would not regard it as necessary to subdue and restrain the [NAME] for as long as this [NAME] was restrained. [NAME]'s denials, I find that there was an element of punishment of the [NAME] for the assaults upon [NAME]'s wife and brother. I accept that [NAME] did not intend to cause the harm he did, but a high degree of recklessness was inherent in this sustained course of conduct.

12 Objectively, the offence is at the lower end of the spectrum of manslaughter offences, given the very wide range of conduct encompassed by that offence. There can be no dispute that the [NAME] was the aggressor and that [NAME] did not have the luxury of calm deliberation in determining what response to make to the [NAME]'s violent assault upon [NAME]'s wife, and his potentially violent assault upon [NAME] in the presence of a seven year old child. [NAME] had witnessed a senseless assault upon his own brother and had good reason to think that the [NAME]'s attentions would turn to himself and his family. That is not to diminish the worth of the [NAME]'s life, nor the concern of the criminal justice system to ensure that those responsible for the taking of a human life are appropriately punished. 13 Appropriate punishment is of course the outcome of a synthesis of many factors, some relating to the objective circumstances of the offence, that is, what [NAME] did and with what intention, and some relating to the subjective circumstances, that is, matters that are personal to [NAME] such as age, criminal history, if any, educational, employment and family history. It is only after these factors have been considered, whilst keeping firmly in mind the principles of punishment, retribution, general deterrence, and the rehabilitation of [NAME], that a sentence at law may be imposed. It is understandable that those bereaved by the [NAME]'s death view punishment of [NAME] for what he objectively did to their loved one as the overriding, if not, the only purpose of criminal proceedings. But the law mandates that every judge called upon to sentence an [NAME] takes account of, and distils, all the circumstances surrounding the commission of an offence and all the circumstances pertaining to the life of [NAME]. That is what the Court must do in this case, but that duty does not diminish the sympathy the Court feels for the [NAME]'s father, sister and extended members of their family. [ADDRESS] acknowledges that their lives have also been forever changed by the events of that night. 14 [NAME] is 31 years of age. He has an insignificant criminal history for present purposes. He was under the supervision of the probation and parole service in 1994 when he entered a three-year supervised recognisance in relation to a charge of misconduct causing bodily harm. He completed 12 months' supervision satisfactorily. 15 [NAME] is the eldest of four siblings, his parents having separated when he was in his mid-teens. [NAME] and his sister resided with his mother whilst his two brothers remained with the father. [NAME] met his wife whilst at school and they married when he was 19 years of age. There had been a temporary separation shortly prior to the offence, although it appears that reconciliation has been successful and [NAME] intends to resume his relationship following sentence. [NAME]'s daughter is presently nine years of age and [NAME] is reportedly a responsible and loving parent. 16 [NAME] left school midway through year 11. He was diagnosed with Attention Deficit Disorder in his early school years although his behaviour was not disruptive. He then completed a six-month pre-apprenticeship course in mechanics at a local TAFE. He has held semiskilled positions with short periods of unemployment. Over the past seven to eight years he has been employed as a floor sander and is currently self-employed in that occupation. His work ethic is described in positive terms and his skills are said to be excellent. [NAME] has no drug or alcohol dependencies. 17 I accept that [NAME] is genuinely remorseful for his actions and that he now accepts that his conduct directly caused the death of the [NAME]. In his evidence before the Court he described himself as "devastated" and he thinks about the offence every day. Despite the presence of symptoms consistent with depression, [NAME] has resisted any offers of counselling and maintains that he would not resort to self harm. I note the expression of an opinion by the probation and parole officer to the effect that the service held concerns in relation to the possibility of self harm should [NAME] receive a full time custodial sentence. [NAME] himself has concerns for his own safety in jail, allegedly related to the possibility that acquaintances of the [NAME] may also be in custody. 18 I also accept, notwithstanding the summary conviction referred to above, that [NAME] is a person of good character. A number of testimonials were admitted as Exhibit 1 on sentence. All of them speak very highly of [NAME]'s dedication to his family and friends, his generally shy and timid nature and his strength of character. They also describe the anguish experienced by [NAME] as a direct result of his role in the [NAME]'s death. 19 I do not regard it as necessary to reflect the need for specific deterrence in the sentence to be imposed. In my view, it is highly unlikely that [NAME] will come into contact with the criminal justice system on any future occasion. There is however a role for general deterrence to play in this sentencing exercise. The sentence must reflect the fact that [NAME] significantly exceeded the bounds of reasonable conduct in the circumstances with which he was confronted and thereby caused the death of another human being. 20 [NAME]'s plea of guilty to manslaughter came three days before the commencement of the trial. Mr [NAME] of senior counsel placed some reliance upon the fact that murder was never the appropriate charge. In my view, whether that be true or not, [NAME] was always capable of pleading to manslaughter and could have done so at an appreciably earlier time. I will therefore allow a discount of 15% in order to reflect the utilitarian value of the plea. I have found special circumstances on the basis that this is [NAME]'s first experience of gaol and that he will require close supervision whilst in custody. 21 Taking all these matters into account, I have determined to sentence [NAME] as follows :- [NAME], for the manslaughter of [NAME], I sentence you to a non parole period of two years to date from today, 12 October 2007 to expire 11 October 2009, the additional term being one year and four months expiring 11 February 2011. You are eligible for release to parole on 12 October 2009. I have taken account of 7 days pre-sentence custody in imposing this sentence.

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