Fuller v R

1. [1]

   BRERETON JA: I have had the benefit of reading in draft the reasons to be delivered by N Adams J with which, subject to what follows, I agree.

2. [2]

   For myself, I would not endorse the view that it is best to avoid identifying where a particular offence of manslaughter falls on a hypothetical range of manslaughters, although I entirely agree that it is not obligatory. Notwithstanding the difficulty of the exercise because of the wide variety of circumstances that may constitute manslaughter, transparency and consistency in the sentencing process is enhanced in the case of manslaughter, as in the case of other offences, by an indication of the relative gravity of the offending conduct. Avoiding the exercise, where it can be undertaken, reduces the rigour and transparency of the sentencing process.

3. [3]

   Nor, with respect, would I agree that a challenge to an assessment of objective seriousness – as distinct from a complaint of manifest excess – is subject to the restraints imposed by House v The King. [1] It is the ultimate fixing of a sentence that is the discretionary exercise. A finding as to objective seriousness is not an exercise of discretion but a conclusion of fact, albeit one involving an evaluative judgment. Where an appeal challenges such a finding, the test is whether it is correct, not whether there was error of the kind referred to in House v The King. If it is incorrect, then that may vitiate the ultimate discretionary exercise based on that wrong conclusion of fact. This is illustrated, albeit in a different context, by the judgments of Gageler J in Minister for Immigration and Border Protection v SZVFW, [2] and of Leeming JA, with whom I agreed, in Sun v Chapman. [3]

4. [4]

   That said, substantially for the reasons given by N Adams J, I am unpersuaded that the sentencing judge overstated the seriousness of the offending. I am fortified in this conclusion by the sentence which his Honour imposed, which is not at all suggestive that his Honour took an unduly severe view of the objective gravity of the offending.

5. [5]

   I agree with the orders proposed by N Adams J.

6. [6]

   ADAMSON J: I have had the benefit of reading the reasons of N Adams J in draft. I agree with her Honour’s conclusions and with the orders she proposes.

7. [7]

   As her Honour has noted, it is the duty of the sentencing judge to find the facts. This Court (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ) in R v Isaacs (1997) 41 NSWLR 374 (Isaacs) at 379-380, overturned authorities which had approved of the practice of questioning of juries as to the basis of their verdicts. Their Honours, at 378, held, following Savvas v The Queen (1995) 183 CLR 1 at 8 (Deane, Dawson, Toohey, Gaudron and McHugh JJ); [1995] HCA 29), that it was for the judge to find the facts which are material to the exercise of the sentencing discretion, so long as the facts were consistent with the jury’s verdict. The Court also held that sentencing judges are not required to sentence the offender on the basis of the view of the facts which is most favourable to the offender but must be satisfied of those matters which were to be taken into account adversely to the offender, beyond reasonable doubt.

8. [8]

   One of the reasons the Court in Isaacs gave for discouraging the questioning of juries as to the basis of a verdict of manslaughter was that:

9. [9]

   Of present relevance, the Court in Isaacs held that the sentencing judge’s task was not to determine the basis on which the jury had found the appellant guilty of manslaughter, but rather to find the facts which were material to sentencing, consistent with the jury’s verdict of manslaughter.

10. [10]

    In Lane v R [2013] NSWCCA 317; (2013) 241 A Crim R 321, this Court (Bathurst CJ, Simpson J and myself) set out, at [50]-[64], the elements of each of the forms of voluntary or involuntary manslaughter. This summary illustrates the several ways in which individual members of a jury might reason to an accused’s guilt and thus return a unanimous verdict, notwithstanding the different paths individual jurors may have taken.

11. [11]

    Isaacs concerned a verdict for manslaughter, although the principles expressed are not confined to that offence. The High Court applied these principles in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67. The appellant in Cheung was charged with being knowingly concerned in the importation of almost 50kg of heroin. The appellant was sentenced on the basis of the accomplice’s evidence of his greater involvement, which included planning, implementation and importation over a period of about nine months. The appellant appealed on the basis that the judge was obliged to sentence on the basis of a view of the evidence which was most favourable to him (a proposition which had been rejected in Isaacs).

12. [12]

    When addressing the duties of the sentencing judge, the plurality (Gleeson CJ, Gummow and Hayne JJ) said at [5]:

13. [13]

    When a jury returns a verdict of guilty of manslaughter, nothing is generally revealed (for good reason) about the way in which the verdict was arrived at. Indeed, as it is open to jurors to disagree on the type of manslaughter and yet reach a unanimous verdict of guilty of manslaughter (as was explained in Isaacs), it is almost inevitable that the sentencing judge will have to determine the type of manslaughter as part of his or her duty to find the facts for the purposes of sentencing. As N Adams J has said, the question is not to be resolved by speculating about what the jury thought. The jury’s task concludes with the return of a verdict. It is for the sentencing judge to determine, on the basis of the evidence (rather than any inferred collective view of the jury), the type of manslaughter and making findings accordingly.

14. [14]

    I agree with N Adams J that, as this matter was not raised as a ground in this Court, it is not necessary that it be addressed further.

15. [15]

    N ADAMS J: On 3 August 2020, Dennis Fuller, the applicant, pleaded not guilty before Cavanagh J to the murder of Guy McCulloch on 19 December 2018. Although he pleaded guilty to the alternative charge of manslaughter, the Crown did not accept that plea in satisfaction of the indictment and the trial proceeded.

16. [16]

    The applicant had first offered to plead guilty to manslaughter on 27 June 2019 during a case conference in the Local Court.

17. [17]

    On 2 September 2020, the jury returned verdicts of not guilty to murder but guilty to manslaughter. Proceedings on sentence were conducted on 16 October 2020. On 9 November 2020, the applicant was sentenced to 9 years’ imprisonment with a non-parole period of 6 years and 3 months, commencing on 19 December 2018, after applying a discount of 20% for the offer to plead guilty: R v Fuller [2020] NSWSC 1580.

18. [18]

    The applicant now seeks leave to appeal against this sentence under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) on the following three grounds:

    1. (1)

       The learned sentencing Judge erred in finding that a discount of 20% was appropriate;

    2. (2)

       The learned sentencing Judge erred in finding the objective seriousness of the offending as being “well above the mid-range”, and “more in the higher range”; and

    3. (3)

       The sentence imposed was manifestly excessive.

19. [19]

    The Crown conceded that ground 1 was established. I am satisfied that concession was properly made. I am not satisfied that either grounds 2 or 3 are established.

Factual background

1. [20]

   I have based the following summary of the factual background on his Honour’s sentencing remarks at [6]-[63].

2. [21]

   The fatal encounter between the applicant and the deceased occurred in the context of an ongoing family dispute. The applicant is the half-brother of Kristy Duley. Their mother is Toni Fuller (Mrs Fuller). Ms Duley was the long-term partner of the deceased. They had six children together, all of whom had been removed from their care at various stages; three children had been placed in the care of Mrs Fuller (the mother of the applicant and Ms Duley). There was a long history of conflict between the deceased and Ms Duley, on one side, and the applicant and Mrs Fuller, on the other. The applicant’s partner at the relevant time was Ms Abercrombie.

3. [22]

   Cavanagh J accepted that the following incidents occurred prior to the day of the killing as a part of the feud:

   1. (1)

      Around September 2014, the caravan where Ms Duley was living was set on fire. She believed that the applicant was responsible.

   2. (2)

      In October 2014, Ms Duley set fire to the applicant’s four-wheel drive, using a petrol incendiary, which also caused damage to Ms Abercrombie’s house. The applicant believed that Ms Duley was responsible, and she later admitted that she was.

   3. (3)

      In 2015, the applicant was threatened by associates of the deceased.

   4. (4)

      Between these events and 19 December 2018, there were a number of other incidents, including Ms Duley threatening her mother at her mother’s place of work, and the deceased and Ms Duley driving by the applicant’s residence or that of Mrs Fuller yelling out threats with implications of violence.

4. [23]

   As part of this background, Cavanagh J declined to make a finding about whether there had been a verbal altercation between the applicant and an associate of the deceased, Gregory John Gay. Mr Gay was a witness of, and a participant in, the events immediately leading up to the deceased’s death.

5. [24]

   His Honour found that the deceased played a “significant role” in the conflict between the applicant and Ms Duley, in that he was often the driver of the vehicle with Ms Duley in the passenger seat. Nonetheless, the deceased maintained “some relationship” with the applicant.

6. [25]

   Turning to the events of 19 December 2018, around 1.20pm that day the deceased and Ms Duley were out the front of a house in Beach Street, Belmont South, with Mr Gay and his partner, Nadine Harrison, who lived at that property. At about this time, the applicant and Ms Abercrombie happened to drive past in a silver Holden Commodore with some of their children. Ms Duley yelled out “tick tock” (implying some impending violence). Although the applicant wanted to stop and get out, Ms Abercrombie raised her middle finger and kept driving to Marriott Street, where Mrs Fuller lived.

7. [26]

   When Ms Abercrombie stopped her vehicle, the applicant walked back to Beach Street, which took about 2-3 minutes. After leaving the children with Mrs Fuller, Ms Abercrombie drove back to Beach Street, parking behind the deceased’s black Nissan Navara. By this time, the deceased was sitting in the driver seat and Ms Duley was in the passenger seat of the Nissan.

8. [27]

   Cavanagh J was satisfied that the applicant’s purpose in returning to Beach Street was to confront Ms Duley and ask the deceased to stop driving Ms Duley past the residence he shared with Ms Abercrombie at which times Ms Duley would often yell out abuse.

9. [28]

   At some point, the deceased reversed his vehicle quickly and it collided with the Holden in which Ms Abercrombie was seated. There was conflicting evidence as to whether this occurred as the applicant was approaching the Nissan (the applicant’s version) or whether the deceased did this when the applicant was remonstrating with Ms Duley. There was also evidence that the applicant punched Ms Duley a number of times, which the applicant denied. Cavanagh J did not find it necessary to reconcile these versions, other than to observe that it seemed that the deceased reversed the Nissan after the applicant engaged Ms Duley in a heated confrontation. Any physical action was limited and superficial.

10. [29]

    At some point, the deceased rammed the Holden again, deliberately and with greater force. The applicant may have had to jump out of the way of the reversing vehicle. He believed that the deceased was trying to hit him. After the second ramming, there was a verbal confrontation between the applicant and the deceased (captured by Ms Duley on her mobile phone, which was in evidence). The applicant stated that he was standing “toe-to-toe” with the deceased, adjacent to the driver’s door when the deceased said, “[d]o you want to see how far I’m willing to go?”. Cavanagh J accepted the applicant’s account that the deceased looked down towards the seat well and the applicant saw something like a knife. At this stage, the applicant saw Mr Gay coming towards him with a baseball bat.

11. [30]

    Ms Duley left the Nissan and moved towards Ms Abercrombie who was, by then, standing across the road. Ms Duley accepted that she was going to “have a go” at her. The applicant went and stood between them and exchanged heated words with Ms Duley. The deceased immediately called out to Ms Duley to return to the Nissan. The applicant heard Mr Gay, with bat in hand, ask the deceased whether he wanted him to “go on with it”.

12. [31]

    The deceased and Ms Duley got into their vehicle and drove away. The applicant gave evidence that the deceased called out, “[g]ame on dog. You and your family’s dead.” After telling Ms Abercrombie to stay put, the applicant ran back to his mother’s house in Marriott Street. His sister, Codie Fuller, and his children were there. He asked whether the deceased and Ms Duley had been there. She said they had not been. The applicant told his sister than the deceased had just smashed the car and threatened to kill him.

13. [32]

    The applicant then went to check on Ms Abercrombie’s house, about a three-minute walk away. Before he arrived, the deceased and Ms Duley drove back past him in the direction of Mr Gay’s house in Beach Street. They returned because, even though police had been called, Ms Duley was concerned that the deceased might lose his work licence. As they passed the applicant, Ms Duley made a gun-like signal and the deceased said, “[w]ho’s protecting your missus now?”. On his account, the applicant ran to Ms Abercrombie’s home to try to find his phone to ring her. As he was looking in his bag, he noticed two machetes which he had used the weekend before to make a motorbike track for his children.

14. [33]

    The applicant took the bag and jogged back to Beach Street. He said that at the time he thought that if he was attacked, he could use the knives to scare them off. He did not know where the deceased, Ms Duley or Ms Abercrombie were, but he was concerned for the latter’s safety. Cavanagh J accepted that at that point the applicant was not planning to stab the deceased.

15. [34]

    As the applicant entered Beach Street, he was looking and calling for Ms Abercrombie. His evidence, which the Crown disputed, was that he checked the Commodore but could not see her anywhere. Cavanagh J was unable to conclude beyond a reasonable doubt that Ms Abercrombie was there to be seen when the applicant looked for her.

16. [35]

    The applicant then heard Mr Gay yell out, “[s]he’s as good as gone.” The applicant thought that the deceased and Ms Duley might “have” Ms Abercrombie. He tried to look into the back of the Nissan and told Mr Gay to stay out of it. At this time, the applicant admitted to pulling out the two machetes, clanging them together and saying, “[w]hat, you want some of this?”. Cavanagh J found that Mr Gay grabbed an axe after seeing the knives. Mr Gay also yelled out to the deceased and Ms Duley, “[h]e’s got two knives”.

17. [36]

    The deceased drove off in the Nissan and the applicant chased him on foot. The applicant said he wanted to see into the back of the vehicle as he was concerned for Ms Abercrombie’s safety. The vehicle suddenly stopped and reversed towards him. The applicant jumped out of the way, onto the side rock slider of the vehicle or onto the side of the driver’s door. Cavanagh J accepted that the applicant believed the deceased was trying to run him over. In this movement, the applicant grabbed the side of the driver’s window which was down. Cavanagh J then observed the following at [58]-[62]:

18. [37]

    The applicant knew there were witnesses present. For example, there had been a motor vehicle accident within 50 metres of where the deceased was stabbed, and paramedics were at that scene.

Proceedings on sentence

1. [38]

   The proceedings on sentence were conducted on 2 September 2019 and 16 October 2020. The Crown relied on the applicant’s criminal history, his custodial record produced by the Department of Corrective Services and a victim impact statement of Ms Duley dated 8 October 2020.

2. [39]

   Although Ms Duley commenced reading her statement in court during the proceedings on sentence, she became too angry and upset. She threw the piece of paper towards either the accused or his representatives and left the court while making threats and “hurling abuse”.

3. [40]

   The applicant has a relatively short criminal history. In 2010, he was placed on a suspended sentence for contravening an apprehended violence order and common assault; and in 2011 was given a further suspended sentence for assault occasioning actual bodily harm in a domestic violence context. He was placed on a community service order in 2014 for assault occasioning actual bodily harm. He was also convicted of driving offences in 2006, 2008, 2013 and 2018.

4. [41]

   The applicant relied on the following evidence:

   1. (1)

      Report of John Machlin, Clinical Psychologist, dated 6 October 2020;

   2. (2)

      Affidavit of Toni Fuller dated 13 October 2020;

   3. (3)

      Affidavit of Jessie Lee Fuller dated 13 October 2020;

   4. (4)

      Affidavit of Kristy Bazic dated 14 October 2020;

   5. (5)

      Affidavit of Alex James McCulloch dated 14 October 2020; and

   6. (6)

      Affidavit of Susanne Dawn Price dated 13 October 2020.

5. [42]

   Although the applicant gave evidence at his trial, he did not give evidence at the proceedings on sentence.

6. [43]

   The parties referred his Honour to a number of “comparable cases” as well as statistics from the Judicial Commission of NSW on manslaughter sentencing but acknowledged the limitation of these tools, especially in respect of the offence of manslaughter.

7. [44]

   Submissions were made regarding the applicable discount for the early offer to plead guilty to manslaughter (ground 1) and assessment of the objective seriousness of the offence (ground 2).

8. [45]

   Senior counsel for the applicant submitted that a full discount (25%) was applicable. On the other hand, the Crown submitted:

9. [46]

   Most of the submissions on sentence were directed at the appropriate finding of objective seriousness and the related issue of the basis of the applicant’s liability for manslaughter. Senior counsel for the applicant made the following submission in response to a query from the sentencing judge as to how to determine the basis upon which the jury convicted the applicant:

10. [47]

    Senior counsel went on to agree with his Honour that it was not necessary to make a finding either way, submitting:

11. [48]

    Senior counsel for the applicant also submitted the following:

12. [49]

    On this issue, the Crown submitted:

13. [50]

    And further, as to objective seriousness:

Remarks on sentence

1. [51]

   His Honour prefaced his factual findings with some general remarks about the nature of a sentencing judge’s task [6] and [11] (footnotes omitted):

2. [52]

   After setting out the factual narrative which I have summarised above, his Honour discussed the basis of voluntary manslaughter on which the applicant was to be sentenced. His Honour noted the Crown’s submission that the jury must have accepted the defence of extreme provocation, while the applicant submitted that it was simply not possible to know what was accepted by the jury.

3. [53]

   It is to be noted that his Honour framed much of his account of the relevant facts by reference to what the applicant had said about certain matters at the trial, without making an explicit finding as to whether he accepted each aspect of his evidence. However, at [71] his Honour said, “… it is unlikely the jury would have found [excessive self-defence] without accepting that much of the provocative conduct took place. … the jury must have accepted much of the offender’s version”. Given his Honour’s observation that the jury must have accepted “much of” the applicant’s version, I have proceeded on the basis that unless Cavanagh J explicitly rejected an aspect of the applicant’s evidence, he accepted it, consistent with the jury’s verdict.

4. [54]

   Some of his Honour’s conclusions are set out at [67]-[70] as follows:

5. [55]

   His Honour continued (at [72]-[79]) as follows:

6. [56]

   His Honour made the following findings in respect of the objective seriousness of the killing at [92]-[94]:

7. [57]

   Cavanagh J referred to the victim impact statement made by Ms Duley and also to the applicant’s subjective case, in light of the evidence tendered on sentence. The report of clinical psychologist, Mr Machlin, dated 6 October 2020, describes a background of “significant social disadvantage and dysfunction which have had broad effects on him personally and embroiled him in ongoing family conflict which ultimately led to the death of Mr McCulloch” (at [112]). Mr Machlin found that the applicant showed no signs of cognitive impairment or psychotic disturbance, but that he had a history of substance abuse, and perhaps clinically significant depression and Post-Traumatic Stress Disorder. The applicant did not suffer from a mental health condition at the time of the offence, other than an adjustment disorder with mixed anxiety and depressed mood. Mr Machlin was unable to say how these considerations might have influenced the applicant’s behaviour at the time of the offending, other than noting that his stress and anxiety were exacerbated by the ongoing familial conflict.

8. [58]

   Having regard to the various affidavits tendered on behalf of the applicant on sentence, Cavanagh J concluded that “[a]ll of this evidence tends to support the proposition that the offender has been a supportive father and uncle, as well as a good partner to Ms Abercrombie, over the years” (at [121]). His Honour stated that general deterrence and denunciation was of some importance due to the public nature of the violence. However, his Honour also noted that the applicant had a limited criminal record, good prospects of rehabilitation and had shown some remorse. Specific deterrence was not of significance in his Honour’s opinion.

9. [59]

   Cavanagh J also made a finding of special circumstances (at [133]) due to the applicant’s difficulties in custody and “on the basis that the offender will need a longer period on parole with an ongoing need for medical supervision and the likely need to relocate.”

10. [60]

    The applicable discount for the applicant’s guilty plea was set out at [136]-[139] in the following terms:

11. [61]

    Finally, in his remarks, Cavanagh J emphasised at [144] that he was “sentencing for manslaughter and not murder and that the offender accepted his responsibility at an early stage”. The indicative sentence, before the discount was applied, was 11 years and 3 months’ imprisonment.

Ground 1: discount for guilty plea to manslaughter

1. [62]

   It was submitted on behalf of the applicant that s 25D(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) renders it mandatory for the applicant to receive a 25% discount.

2. [63]

   The Crown accepted that the applicant had offered to plead guilty to manslaughter in the Local Court during the EAGP Scheme but noted that he had done so without any disclosure of the degree of culpability or factual basis for such a plea. It was simply asserted that the defences of extreme provocation and excessive self-defence applied. The Crown submitted that it was not possible for the DPP to meaningfully assess those matters in deciding whether to accept the plea.

3. [64]

   Despite this, the Crown conceded error in relation to ground 1. A mandatory discount of 25% applied. Reliance was placed on the decision of this Court in Black v R [2022] NSWCCA 17 (“Black”) in support of the Crown’s submissions that if grounds 2 and 3 are dismissed, the error under ground 1 could be addressed by simple mathematical correction rather than sentencing the applicant afresh.

Consideration of ground 1

1. [65]

   The concession by the Crown that this ground should be upheld was properly made and should be accepted given the decision of this Court in Black.

2. [66]

   In Black Simpson AJA, with whom Ierace and Dhanji JJ agreed, considered the provisions in Div 1A (ss 25A-25F) of Pt 3 of the Sentencing Act which commenced on 30 April 2018. The enactment of Div 1A formed part of the Early Appropriate Guilty Pleas (EAGP) Scheme aimed at encouraging cooperation between the prosecution and defence at an early stage. As Simpson AJA observed at [2] in Black, Div 1A now provides a mandatory and exclusive code for the application of sentencing discounts for the utilitarian value of pleas of guilty to charges dealt with on indictment. Relevantly, ss 25D and 25E of the Sentencing Act are in these terms:

3. [67]

   In Black, this Court held that an alternative charge specified on a charge certificate such as manslaughter is not “the offence the subject of the proceedings” for the purpose of s 25E(2)(b). It follows that an offender such as the applicant may be entitled to a 25% reduction for a pre-committal offer to plead guilty to that alternative charge. Although prior to the enactment of Div 1A, s 22(1) of the Sentencing Act provided a discretion as to the appropriate discount, s 25E is mechanical in that specified percentage reduction must be applied to the circumstances specified in the statute. There is no longer an element of discretion involved.

4. [68]

   In Black, the question of the relevant discount turned on the proper construction of the new provisions. In the present case, neither the Crown nor the applicant’s counsel made any reference to Div 1A during the proceedings on sentence. The fact remains that the applicant should have been afforded a discount of 25% and was not (in accordance with s 25E(3)(a)).

5. [69]

   Given that specific error has been found, this Court is obliged to re-sentence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) at [42] (French CJ, Hayne, Bell and Keane JJ). However, the question arises as to whether this Court is required to sentence the applicant afresh given the nature of the error. In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 this Court sat a five-judge bench to consider the scope of Kentwell and in particular what sort of discrete errors do not require the Court to re-sentence afresh. One of the questions considered in Lehn v R was whether where the error affects only a discrete component, this Court must re-exercise the sentencing discretion generally or in respect of the component affected by error only. On that issue, it was held that it will not be necessary to re-sentence generally where an arithmetical error has occurred in the computation of a discount for a plea: Refaieh v R [2018] NSWCCA 72; 272 A Crim R 245 at [83] (N Adams J; Hoeben CJ at CL and Johnson J agreeing); and Ke v R [2021] NSWCCA 177 at [65]-[72].

6. [70]

   More recently, in Black, Simpson AJA observed the following at [53]:

7. [71]

   I am satisfied that, in circumstances where I am not satisfied that grounds 2 and 3 are established, the appropriate course is to apply a 25% discount rather than a 20% discount to the undiscounted sentence indicated by Cavanagh J.

Ground 2: assessment of objective seriousness

1. [72]

   The applicant submitted that Cavanagh J erred in finding that the objective seriousness of the offending was “well above mid-range” and “more in the higher range”. In so doing senior counsel for the applicant, who also appeared for the applicant at trial, submitted that his Honour was correct in declining to make a finding as to the basis on which the jury found the applicant guilty of manslaughter.

2. [73]

   The applicant relied upon a number of factual matters in support of his contention that it was not open to his Honour to find that the objective seriousness of the offence was “well above the mid-range” and “more in the higher range”. Those factors included:

   1. (1)

      The deceased had rammed the applicant’s vehicle twice, causing extensive damage.

   2. (2)

      The first time that his vehicle was rammed Ms Abercrombie was inside the vehicle.

   3. (3)

      The deceased had made reference to how far he was willing to go and indicated to something that appeared to be a knife.

   4. (4)

      Another participant, Mr Gay, had approached the applicant with a baseball bat.

   5. (5)

      The initial threats to his family during the broader altercation that occurred that day had caused the applicant to check on his children.

   6. (6)

      On his way back from checking on the children, the deceased drove past him and said, “who’s protecting your missus now?”. The applicant then observed the deceased to drive in the direction of Beach Street where he had left Ms Abercrombie.

   7. (7)

      The applicant found two machetes in his backpack by chance when looking for his phone. His Honour found that the applicant did not plan to stab the deceased at that time.

   8. (8)

      When the applicant returned to Beach Street he could not find Ms Abercrombie.

   9. (9)

      Mr Gay had armed himself with an axe.

   10. (10)

       The applicant thought Ms Abercrombie may have been forced inside the deceased’s car.

   11. (11)

       The applicant chased the deceased’s vehicle with the knives. When it stopped, the deceased reversed his vehicle in the direction of the applicant who had to evade being struck. In doing so, he came to be on the moving vehicle’s rock sliders.

   12. (12)

       His Honour was satisfied that the applicant believed that the deceased had attempted to run over him. It was at this stage that he proceeded to stab the deceased with the machetes five times.

   13. (13)

       His Honour held that the first two blows were struck while the vehicle was reversing and the third when the vehicle had stopped. His Honour also found that that was when the applicant realised he had stabbed the deceased.

   14. (14)

       His Honour was satisfied that the applicant was fearful at the time, that he had “had enough”, that he wanted the deceased to stop and that he was hanging off the side of a moving vehicle.

   15. (15)

       The events had taken place in the context of a family dispute drawn out over some years.

3. [74]

   Further, it was submitted that this case was distinguishable from other cases of manslaughter on the basis of provocation or excessive self-defence. The offending exhibited the following characteristics (or a lack thereof), all of which tended to decrease its objective seriousness:

   1. (1)

      There was no premeditation;

   2. (2)

      The offence was not committed in a joint criminal enterprise;

   3. (3)

      The offence was not some kind of a pre-emptive strike;

   4. (4)

      The violence was not in revenge or retaliation;

   5. (5)

      The offender was not the aggressor;

   6. (6)

      The provocative act was not low-level;

   7. (7)

      There was no history of violence from the applicant towards the deceased;

   8. (8)

      The violence did not occur in a domestic violence context;

   9. (9)

      There was no gratuitous violence;

   10. (10)

       The violence was not part of an extended or sustained attack;

   11. (11)

       There was no planning;

   12. (12)

       The violence did not occur as part of broader organised criminal activity; and

   13. (13)

       No innocent bystander was killed.

4. [75]

   It was noted that his Honour’s finding as to objective seriousness relied upon the applicant’s decision to bring knives to the scene, the removal and brandishing of the knives, the chasing of the vehicle with the knives in his hands, the stabbing of the deceased whilst he was defenceless sitting in the driver seat and the level of force used by the applicant in full view of members of the public. It was submitted that his Honour did not properly account for the facts already found as to the context of the offending which, on the applicant’s submission, mitigated its seriousness.

5. [76]

   The Crown relied upon the matters set out at [93] of his Honour’s judgment in support of its submission that the sentencing judge’s finding on objective seriousness was open. Reliance was also placed on his Honour’s observation at [127] of his reasons. The Crown further relied upon his Honour’s finding (at [67]) to the criminal standard that the applicant was not acting in defence of Ms Abercrombie immediately before the stabbing and that he was not focused on her safety at that point. His Honour found that the idea that she had been taken against her will in broad light daylight in the presence of the public was “most unlikely”.

6. [77]

   It was submitted that the sentencing judge had the benefit of assessing firsthand the evidence of all the witnesses including the applicant himself (during trial). His Honour also had the advantage of seeing the body-worn footage containing comments made by some of the eyewitnesses including the applicant shortly after the offending.

7. [78]

   Further, the Crown submitted that the sentencing judge carefully considered the facts in arriving at his assessment of objective seriousness. A number of factual findings were made in favour of the applicant, including that prior to the stabbing the deceased had reversed his vehicle with force onto the applicant’s vehicle on two occasions and that Mr Gay was wielding a baseball bat. These were issues that were in dispute at trial.

8. [79]

   Overall, it was submitted that the sentencing judge was well aware of the facts and issues relating to the fact-finding exercise and that the weight to be afforded to those facts was a matter entirely for the sentencing judge.

Consideration of ground 2

1. [80]

   This ground relies on the applicant showing House error (House v The King (1936) 55 CLR 499; [1936] HCA 40) in relation to the sentencing judge’s finding of objective seriousness. In Magro v R [2020] NSWCCA 25 Gleeson JA, with whom R A Hulme and Button JJ agreed, observed at [29] and [31]:

2. [81]

   Similarly, in Ahmad v R [2021] NSWCCA 30 the court (Leeming JA, Harrison and Adamson JJ) observed at [18]:

3. [82]

   The determination of this ground turns on whether it was open for his Honour to find that this was a serious case of manslaughter given the factors identified by the applicant summarised above at [73]. The words used by his Honour to describe the seriousness of the offending were “well above mid-range” and “more in the higher range”. In Paterson v R [2021] NSWCCA 273 Beech Jones CJ at CL (with whom RA Hulme J and I agreed) reiterated that, given the variety of circumstances in which the offence of manslaughter can be established, it is best to avoid identifying where a particular offence of manslaughter falls on a hypothetical range of manslaughters. His Honour observed the following at [33]:

4. [83]

   Although it was not necessary for his Honour to make a specific finding as to where on some hypothetical range of manslaughters this offence fell, his Honour did so in response to the parties’ submissions. His Honour accepted the Crown submission that his Honour would find a “high level of seriousness” and that it was a “high order of seriousness”. On behalf of the applicant, it was submitted, somewhat ambiguously, that the offending was in “a range”, which I have taken to be, in context, a submission of mid-range objective seriousness.

5. [84]

   His Honour’s finding as to objective seriousness was made based on his findings that in response to prior provocative conduct on behalf of the deceased and Ms Duley, the applicant armed himself with two machetes he found in his bag while looking for his phone. Although his Honour was satisfied that the applicant was not planning to kill the deceased when he armed himself, his Honour also rejected the applicant’s explanation that he ran at the deceased’s vehicle with the machetes because he thought that Ms Abercrombie was in the car; that is, the applicant was sentenced on the basis that he was not acting in self-defence when he ran at the car brandishing two machetes. That left his only “intent” when running at the vehicle to be an act in response to the provocative conduct by the deceased, namely that that day (in the context of long held hostilities):

   1. (1)

      The deceased had earlier rammed the applicant’s vehicle twice causing damage. Ms Abercrombie was still inside the vehicle the first time but was unharmed;

   2. (2)

      The deceased had made reference to “how far he was willing to go” and indicated with his eyes to something that appeared to be a knife; and

   3. (3)

      A short time later, the applicant left to check on his children and the deceased drove by him in the direction of Ms Abercrombie and called out “who’s looking after your missus now?”.

6. [85]

   None of the provocative conduct involved the infliction of any personal violence, only the threat thereof, and damage to property.

7. [86]

   When the applicant ran at the car brandishing two machetes, the deceased stopped and reversed his vehicle in the applicant’s direction. The applicant evaded being struck by jumping onto the side of the vehicle whilst it was moving. It seems to me that it is consistent with the facts found by Cavanagh J that if the applicant had not run at the vehicle in the manner he did, the deceased would not have had to try and evade him by reversing his car.

8. [87]

   Once the applicant jumped onto the side of the deceased’s vehicle, his Honour was satisfied that the applicant believed that the deceased had attempted to run over him. It was at that time that the applicant stabbed the deceased to death with the machetes five times. Acknowledging the ambiguity in the remarks described above at [51], his Honour appears to have accepted that two blows were struck while the vehicle was reversing, and the applicant was “going for” a third when the vehicle stopped. It was then that the applicant realised he had stabbed the deceased.

9. [88]

   His Honour’s finding of objective seriousness falls to be considered based on these facts which he was satisfied were consistent with both manslaughter by extreme provocation and excessive self-defence. Putting to one side for the moment the desirability of this approach (urged on his Honour by the applicant’s senior counsel), I accept that the facts as found by his Honour meet the statutory requirements for manslaughter on both bases for the following reasons.

10. [89]

    The elements of the partial defence to murder of extreme provocation are set out in s 23(2) of the Crimes Act 1900 (NSW). It would have been open to his Honour to sentence the applicant on the basis of extreme provocation if satisfied of all of the following:

    1. (1)

       The applicant’s conduct was done in response to conduct of the deceased towards or affecting the applicant;

    2. (2)

       The deceased’s conduct was a “serious indictable offence”;

    3. (3)

       The deceased’s conduct caused the applicant to lose self-control; and

    4. (4)

       The deceased’s conduct could have caused an ordinary person to lose self-control to the extent of intending to kill or inflict grievous bodily harm on the deceased.

11. [90]

    Section 23 was enacted in its present form by the Crimes Amendment (Provocation) Act 2014 (NSW). The background to that amendment was considered in some detail by Johnson J (with whom I agreed as did Ierace J) in Rogers v R [2021] NSWCCA 61. It is not necessary to discuss the amendment in any detail here. Its purpose was to make it more difficult for an accused person to rely upon the partial defence. The most significant amendment was that the provocative conduct must amount to a serious indictable offence, which the conduct of the deceased in the present case did.

12. [91]

    His Honour’s findings at [59] and [61] that the applicant had “had enough” with the deceased and Ms Duley’s threats and “just the whole thing” are consistent with manslaughter by extreme provocation.

13. [92]

    It was also open to his Honour to sentence the applicant for manslaughter by excessive self-defence if he was satisfied that although the applicant believed at the time he stabbed the deceased that his conduct was necessary to defend himself, this conduct was not a reasonable response in the circumstances as the applicant perceived them (s 421 of the Crimes Act). His Honour found (at [59]) that the applicant was in fear just prior to the fatal acts, findings consistent, in general terms, with the partial defence of excessive self-defence.

14. [93]

    As for the principles relevant to findings of objective seriousness on both bases, prior to the 2014 amendment, the relevant sentencing principles for manslaughter based on provocation were derived from the decision of Hunt CJ at CL in R v Alexander (1994) 78 A Crim R 141 at 144. In that decision, his Honour identified the following factors as being relevant to the level of culpability in provocation cases (footnotes omitted):

15. [94]

    Similarly, in R v Bolt [2001] NSWCCA 487, Dowd J, with whom Sheller JA and G James J agreed observed at [35] that “as a matter of logic, the degree of provocation must reduce the objective gravity of the offence, and also the degree of violence employed must increase the objective gravity of the offence”. His Honour went on to observe at [36]:

16. [95]

    His Honour went on to observe at [46]:

17. [96]

    There have been only a limited number of cases of offenders being sentenced on the basis of extreme provocation as amended. It seems to me that the principles in R v Alexander and R v Bolt are still applicable following the amendment to s 23 of the Crimes Act.

18. [97]

    Applying these principles to the present case, the degree of provocation offered was not high, it involved long-running animosity, damage to property and threats in the years priors (as summarised above) and the ramming of a vehicle causing damage to a car but not to any person on the day of the killing. The time between that provocation and the applicant running at the deceased with the knives was many minutes whereas it was only a matter of seconds from when the deceased tried to ram him away the second time. The applicant stabbed the deceased five times with his two machetes whilst the deceased was seated in a motor vehicle. I am satisfied that the finding his Honour made as to the seriousness of the offending was open on these bases.

19. [98]

    As for the relevant sentencing principles for manslaughter by excessive self-defence, in Smith v R [2015] NSWCCA 193 Simpson JA (with whom Leeming JA and Hamill J agreed) observed the following at [45] in that regard:

20. [99]

    Simpson JA went on to observe at [59]:

21. [100]

    I am also satisfied that it was open to his Honour to make the finding of objective seriousness he did on the basis of excessive self-defence. The circumstances as the applicant perceived them were that after the applicant ran at the deceased with a knife the deceased drove his car at him, and the applicant jumped on the side of his vehicle. He was scared so he stabbed the deceased.

22. [101]

    The applicant submits that the finding of objective seriousness was not open given the mitigating factors which it was contended reduced the objective seriousness of the offending (see above at [73]-[74]). Those matters are of limited assistance in this case. The absence of premeditation is relevant to the jury’s rejection of murder, rather than mitigating the seriousness of manslaughter. It is difficult to see how a jury could ever return a verdict of manslaughter based on extreme provocation or excessive self-defence had there been premeditation. Nor am I satisfied that the provocative act was “not low-level”. While it is to be accepted that the applicant did not act as part of a joint criminal enterprise, it is possible to be guilty on such a basis without having struck the fatal blow. In this case, the applicant stabbed the deceased a number of times.

23. [102]

    As for the submission that the applicant was not the aggressor, the applicant ran at the deceased’s car carrying two knives in circumstances where the sentencing judge was not satisfied he was looking for Ms Abercrombie at this time. Although it is to be accepted that there were earlier provocative acts, the applicant was the aggressor in the end. Although there was no history of violence from the applicant towards the deceased, nor was there any history of significant violence in the other direction; most of the hostility was verbal.

24. [103]

    As for the mitigating factor that there was an absence of death of an innocent bystander, it would be a curious result if the absence of the death of an “innocent bystander” could be taken into account in mitigation given that either the death of a third party would result in a separate charge or that the deceased person, the subject of the verdict of manslaughter by extreme provocation or self-defence, is by definition not “innocent” to some extent (eg for extreme provocation he or she must have committed a serious indictable offence).

25. [104]

    As against these factors, his Honour found that the applicant decided to bring knives to the scene, brandish them and then chase the deceased’s vehicle with them in his hands. The deceased was sitting in his vehicle, defenceless, at the time he was stabbed to death. I am not persuaded that his Honour overlooked the other findings he had made when he focused on these particular features of the killing in his assessment of objective seriousness. The use of weapons was an aggravating feature; as was the “extreme force” used and the public nature of the violence. I also note his Honour’s observation at [127]:

26. [105]

    Finally, I note that although it was open to Cavanagh J to sentence the applicant on either basis, that does not mean that such a course should be endorsed. His Honour took the approach he did in response to a submission that his Honour simply could not know the basis for the jury’s verdict. While that is true, it does not prevent the sentencing judge from finding facts on sentence consistent with the jury’s verdict. His Honour referred to the decision of this court in R v Isaacs (1997) 41 NSWLR 374 (“Issacs”) at 381 in his reasons at [73], but in Issacs this court held that it is the duty of the judge to determine the facts relevant to sentencing. It is to be accepted that generally it will not be possible to determine how a jury has reasoned. However, the task of the sentencing judge is not to try to ascertain the thought processes of the jury but, rather, to find facts consistent with the jury’s verdict.

27. [106]

    As the sentencing judge observed, there will be cases where the objective seriousness of offending will be the same regardless of the basis for the manslaughter. But there will be others when it will not. For my part, the findings of his Honour sit more comfortably with manslaughter on the basis of extreme provocation, and I am satisfied that such a finding could have been made. Despite this, there was no complaint on behalf of the applicant in this court that his Honour should have made a finding either way and the Crown, who had opposed such a course below, was left to respond to the ground as pleaded.

28. [107]

    I would grant leave but dismiss this ground.

Ground 3: manifest excess

1. [108]

   The applicant submitted that should the Court reject ground 2, the sentence imposed was manifestly excessive in any event.

2. [109]

   In addition to the submissions in relation to the objective features of the offending outlined above under ground 2, it was further submitted that the applicant had a strong subjective case. His Honour was satisfied that the applicant had been a supportive father, uncle and son, and a good partner of Ms Abercrombie. His criminal record was limited. His time in custody would be more onerous as a result of the COVID-19 pandemic. Further, the applicant had waited a long time for his trial date. He has had to defend himself twice in custody and believed his life was in danger from persons associated with the deceased. The applicant will have to move from his former residential area when released for his own protection.

3. [110]

   While the sentencing judge found that general deterrence and denunciation were of some importance (given the public nature of the violence), his Honour found that specific deterrence was not of any real significance in the circumstances of this matter and that the applicant had good prospects of rehabilitation. Further, his Honour accepted that the applicant had shown some remorse, but only in regard to the effect of his conduct on those close to him.

4. [111]

   He plainly accepted responsibility for his actions given his early offer to plead guilty to manslaughter. His Honour found special circumstances but in light of the seriousness of the offending and the level of criminality he did not reduce the non-parole period significantly. He noted the hardship arising from the separation from his children and the fact that Ms Abercrombie ended their relationship as a result of this incident but noted that these were not mitigating factors.

5. [112]

   The nub of the applicant’s submission under this ground was put as follows:

6. [113]

   It was submitted that only 19.5% of cases on the Public Defender table for extreme provocation manslaughter (16 out of 82) have a sentence higher than that imposed on the applicant. And only 25.5% of cases for excessive self-defence manslaughter (22 out of 86) have a higher sentence. These cases generally involve greater levels of violence.

7. [114]

   Reliance was also placed on the decisions in R v Bolt and R v Alexander referred to above.

8. [115]

   The Crown relied upon his Honour’s finding that the objective seriousness was high. I have already found that such a finding was open.

9. [116]

   It was noted that senior counsel for the applicant had submitted at the proceedings on sentence that the objective seriousness was in the mid-range and that an appropriate non-parole period was between 3 and “about” 5 years. In the Crown’s submission a sentence of 8 years 5 months’ imprisonment with non-parole period of 5 years and 10 months (applying a 25% discount), where the objective seriousness is above mid-range, cannot be said to be manifestly excessive.

10. [117]

    The Crown also relied upon the following factors in support of its contention that the sentence imposed was not unreasonable or plainly unjust:

11. [118]

    The Crown also restated the need for the sentence to reflect general deterrence.

Consideration of ground 3

1. [119]

   In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R A Hulme J (with whom Bathurst CJ, Leeming JA, Hamill J and I agreed) provided the following summary of the relevant principles to apply when considering a ground of appeal asserting manifest excess at [443]:

2. [120]

   Sentencing judges are to be allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principles. This court will not interfere in a sentence merely because it may have exercised its discretion differently: Markarian at [15]. As Hayne J observed in AB v The Queen (1999) 198 CLR 11; [1999] HCA 46 at [128]: “there will be a range of possible sentences that could be imposed without error”.

3. [121]

   Manslaughter has been described as “protean” offence because the circumstances of its commission are many and various: R v Forbes [2005] NSWCCA 377; 160 A Crim R 1 at [133]-[134] (Spigelman CJ, McClellan CJ at CL and Hall J agreeing). In R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31 (“Loveridge”) Bathurst CJ (with whom Johnson and R A Hulme JJ agreed) said at [226]-[227]:

4. [122]

   The maximum penalty is 25 years’ imprisonment (as set by s 24 of the Crimes Act 1900 (NSW)). There is no standard non-parole period prescribed in the table behind s 54D of the Sentencing Act nor could there be given the wide variety of offending contemplated under manslaughter.

5. [123]

   As I set out above, the applicant relied on a range of statistics in support of his contention that the sentence imposed by Cavanagh J is manifestly excessive. In Davidson v R [2022] NSWCCA 153, I recently gathered a range of authorities in support of the proposition that sentencing statistics, like comparable cases, are part of a range of tools available to an appeal court when assessing a ground of manifest excess, but their usefulness will vary, and they are not determinative: see especially at [170]-[179].

6. [124]

   The difficulty for the applicant under this ground is that, given my finding that it was open to his Honour to make the finding as to objective seriousness he did, the question of whether the sentence imposed was manifestly excessive is to be made on that basis, having regard to the applicant’s subjective case. Applying a discount of 25% (rather than 20%), the question is whether a sentence of 8 years and 4 months with a non-parole period of 5 years and 8 months is unreasonable and plainly unjust in the circumstances. I am not satisfied that it is.

7. [125]

   I would grant leave but dismiss this ground.

ORDERS

1. [126]

   I would propose the following orders:

   1. (1)

      Leave to appeal granted and the appeal allowed in part.

   2. (2)

      The sentence imposed by Cavanagh J on 9 November 2020 is quashed. In lieu thereof, the applicant is sentenced to imprisonment for 8 years and 4 months. The non-parole period of 5 years and 8 months will commence on 19 December 2018 and expire on 18 August 2024.