Smith v R

1. [1]

   LEEMING JA: I agree with Simpson JA.

2. [2]

   SIMPSON JA: On 12 May 2014 the applicant was arraigned in the Supreme Court on an indictment that charged him with the murder by shooting, on 20 January 2013, of Joshua George. At an early stage in the proceedings, the applicant signified his willingness to plead guilty to an alternative charge of manslaughter. The Crown declined to accept the plea in satisfaction of the indictment. The applicant therefore entered a plea of not guilty to the charge of murder, a jury was empanelled, and a trial proceeded. The applicant acknowledged that he had fired the shot that killed Mr George; his defence was that he had acted in self-defence.

3. [3]

   On 4 June 2014, the jury returned a verdict of not guilty of murder, but guilty of manslaughter. In doing so, they rejected the defence of self-defence afforded by s 418 of the Crimes Act 1900 (NSW), but accepted the partial defence of “excessive self-defence” for which provision is made by s 421, and which reduces an offence that otherwise would be murder to manslaughter.

4. [4]

   The maximum sentence applicable to an offence of manslaughter is imprisonment for 25 years. On 8 August 2014 Garling J sentenced the applicant to imprisonment for 12 years with a non-parole period of 9 years. In doing so, in recognition of the applicant’s offer to plead guilty to manslaughter, he reduced the sentence that he otherwise would have imposed (imprisonment for 16 years) by 25 per cent.

5. [5]

   The applicant now seeks leave to appeal against the severity of the sentence. He asserts error in the manner in which the sentencing judge approached the finding of the facts relevant for sentencing purposes (see the specific grounds set out below) and asserts that the sentence imposed is manifestly excessive.

6. [6]

   In order to understand the jury verdict, it is necessary to turn to the relevant legislation. Sections 418, 419 and 421 of the Crimes Act provide as follows:

The trial

1. [7]

   The Crown case may be stated as follows. The factual matters are drawn from the findings of fact contained in the Remarks on Sentence.

2. [8]

   As of January 2013, the applicant was 22 years of age. He was a long time close friend of Mr George, who was 24 years of age. For some months prior to the shooting of Mr George, the two had used methylamphetamine and other drugs together. Although they were good friends, they had, on several occasions, engaged in fisticuffs with one another. The applicant invariably “came off second best”.

3. [9]

   The applicant and Mr George also associated with a group of other young men and women, around the south western suburbs of Sydney. The group met informally on 19 January, an occasion when there was some “sparring” and some degree, although temporary, of tension. During the course of that night, initially at the home of one female friend, and later at the home of another, the applicant and Mr George used more illicit drugs.

4. [10]

   At about 8.00am the following morning, a confrontation took place between the applicant, Mr George, and others. The confrontation escalated. The applicant had in his possession a pair of bicycle forks which he swung at Mr George several times, although he struck him only once. Mr George armed himself with a piece of timber. The group separated for a time, but arrangements were made for a fight to take place later that day between the applicant and Mr George, on a roadway in the vicinity of the applicant’s home. At some stage, Mr George collected a backpack and the applicant armed himself with a loaded rifle. During the course of the day the applicant continued to use methylamphetamine.

5. [11]

   At about 1.30pm Mr George walked to the proposed venue for the fight. The applicant, with the rifle, was waiting for him. Mr George was accompanied by two other men and a woman; one of the men had possession of the backpack that Mr George had earlier obtained. Mr George had in the pockets of his jeans a pair of knuckledusters that were concealed from view. He had no other weapon. A verbal dispute between the applicant and Mr George and the others ensued.

6. [12]

   The applicant perceived that he was about to be attacked by the three males (although, at that stage, no physical altercation had taken place). He formed the view that it was necessary to defend himself, aimed the rifle directly at Mr George, and fired. The single bullet struck and killed him.

7. [13]

   The applicant gave evidence in the trial.

8. [14]

   He gave a lengthy account of the events leading up to the shooting. As to the shooting itself, he said that, as he approached the group, he saw that the two men who were supporting Mr George had weapons. One had a “pole”, the other had a machete. He did not take much notice of Mr George. He (the applicant) pulled out the gun and pointed it at one of the men. He was concerned about that man, who he said was “a bad standover man”, who would “do anything”. He claimed that he had been told that all of the men in Mr George’s group had weapons and that was why he obtained the gun. He said:

9. [15]

   He was asked if he thought Mr George was going to “do something” to him, and replied:

10. [16]

    In short, the applicant’s case (in terms of s 418) was:

11. [17]

    There was also a suggestion in the applicant’s evidence that he acted to protect family members, but this was rejected by the sentencing judge, and it is not necessary to take that any further.

12. [18]

    Section 418 provides a complete defence and is applicable to various offences other than (but including) murder. Where the issue is raised, by s 419 the onus lies on the Crown to negative the defence. The jury’s verdict demonstrates that the Crown successfully did so. (If that were not so, the verdict would have been an acquittal.) Rejection by the jury of self-defence has the necessary implication that the Crown proved, beyond reasonable doubt, either:

13. [19]

    The “conduct” is the specific conduct undertaken - in this case, shooting Mr George.

14. [20]

    Plainly, having rejected the s 418 defence, the jury then turned to s 421. Relevantly, the essentials of s 421 are:

15. [21]

    Logically, if the jury accepted that the Crown had proved that the applicant did not believe that his conduct was necessary to defend himself, it would not have proceeded to consider the second s 418 question (the reasonableness of his conduct) and it would not have proceeded to consider any of the s 421 questions. It may therefore be taken that the jury did accept that the applicant believed that his conduct in shooting Mr George was necessary in order to defend himself (or, more accurately, that the Crown had failed to prove that he did not have that belief).

16. [22]

    Indeed, this may also be seen directly, because one of the elements of s 421 is that the applicant's conduct was not reasonable in the circumstances as he perceives them. For the purposes of s 421, there could be no doubt (given the applicant’s own evidence) that (in the language of s 421(1)(a)) he used force that inflicted death on Mr George. The basis for the verdict must therefore have been that the jury accepted that the Crown had proved that the applicant’s conduct was not reasonable in the circumstances as he perceived them. For the purposes of this application, the words “the circumstances as he perceived them” are critical.

17. [23]

    It may further be accepted that the jury considered, at least as a reasonable possibility, that the applicant believed that Mr George was armed with a gun. That is because:

18. [24]

    Dissection of the jury verdict presents something of a logical conundrum. If the jury accepted, as a reasonable possibility, that the applicant believed that Mr George was about to shoot him, it may well have also accepted that it was not unreasonable for the applicant to shoot first. However, the jury’s verdict was that his conduct was not reasonable, and it was on that basis that Garling J was obliged to sentence.

Other circumstances relevant to sentencing

1. [25]

   Evidence as to other relevant sentencing considerations was before the sentencing judge in the form of a Pre-Sentence Report and a psychiatric report. These, in conjunction with the applicant’s evidence in the trial, disclosed the following.

2. [26]

   The applicant was born in June 1991, and was, as mentioned above, 22 years of age at the time of the offence. His early life was disrupted by the separation of his parents when he was very young. His mother suffers from mental illness; his father is said to be alcoholic. Some indication of the nature of his childhood might be obtained from the following, recorded in the psychiatric report:

3. [27]

   He himself used alcohol from the age of 13, and amphetamines from the age of 16.

4. [28]

   He has a criminal record that includes a number of offences of assault or other violent behavior, and has served two terms of imprisonment. In 2010 he was convicted of an offence of recklessly causing grievous bodily harm while in company, in respect of which he was sentenced to imprisonment for 3 years, with a non-parole period of 18 months. He was on parole in respect of that sentence at the time of the present offence.

5. [29]

   The author of the Pre-Sentence Report recorded the applicant’s largely unsatisfactory responses to various sentences, and in particular, his conduct whilst in custody, which has involved instances of violence and significant breaches of prison discipline.

6. [30]

   The examining psychiatrist concluded that:

The Remarks on Sentence

1. [31]

   Garling J found the facts as outlined above. His task, as he recognised, was to make findings of fact available on the evidence, so long as those facts were not inconsistent with the jury’s verdict. At the commencement of his Remarks, he said:

2. [32]

   Garling J approached the sentencing exercise on the basis that the applicant did, in fact, believe that he was in danger from Mr George and that it was necessary to defend himself. He said so repeatedly. That is not the same as an express finding that the applicant believed that Mr George was armed with a gun which he was prepared to use. Having regard to the manner in which this application has been conducted, it is necessary to set out some of his Honour’s observations and findings.

3. [33]

   His Honour referred, in some detail, to the prelude to the shooting that led to the arrangement that a physical confrontation take place. He referred to evidence that Mr George told one of the other men that he and the applicant were going to have “a one-on-one” later that day. His Honour took “a one-on-one” to be a fist fight. He referred to the evidence that there had been a number of previous fist fights between the two, from which Mr George had generally emerged victorious.

4. [34]

   He rejected evidence of the applicant that he had armed himself with the rifle because he thought he was being “set up”; he found, instead, that the applicant chose to arm himself with the rifle because of his earlier unsuccessful encounters with Mr George.

5. [35]

   He found as a fact that the arrangement was “that a fist fight would occur”, and that the other men were present to ensure that it would take place in accordance with the local rules applicable to such events. He accepted that the presence of the others increased the fear felt by the applicant.

6. [36]

   On at least four occasions, he stated that the applicant’s response was “manifestly excessive”, or “grossly excessive”. That the response was excessive was necessarily implied by the jury verdict. The degree to which it was excessive was a matter for the sentencing judge to determine, on an assessment of the whole of the evidence. His Honour found that there were alternative courses of action available to the applicant, specifying as examples that he could have fired the rifle into the air or towards the ground, or in some other way that would not have endangered life. He said:

7. [37]

   There is, however, one passage in a later section of the Remarks which might be interpreted as an implicit finding to that effect (see [40] below).

8. [38]

   Turning to other relevant sentencing considerations, the sentencing judge noted the applicant’s record of previous convictions, and the fact that this offence was committed while on parole for the previous offences. He treated the latter as an aggravating factor.

9. [39]

   He characterised the objective gravity of the offence as “very serious”.

10. [40]

    He accepted that, by reason of the applicant’s perception that Mr George was reaching for what he thought was a weapon, there was a degree of provocation as provided by s 21A(3)(c) of the Sentencing Procedure Act, but added that little weight could be accorded to this circumstance. He noted an answer given by the applicant in his examination in chief concerning remorse, but described this as:

11. [41]

    He noted the applicant’s offer to plead guilty to the offence of which he was ultimately convicted, and accordingly, reduced the sentence (of 16 years) which he otherwise would have imposed by 25 per cent, to a sentence of imprisonment of 12 years.

The proposed grounds of appeal

1. [42]

   Four grounds of appeal are proposed. They are:

2. [43]

   Before turning to a consideration of the grounds and their resolution, I make the following observations.

3. [44]

   There is no issue that the jury’s verdict carries the implication that the applicant perceived that he was in a position in which it was necessary that he act in order to defend himself. Nor is there any issue that he was sentenced on that basis. Embedded within that proposition, however, are two further questions:

4. [45]

   Central to the sentencing exercise was the identification of the circumstances as the applicant (rightly or wrongly) perceived them. The applicant’s perception of the circumstances is relevant to the determination of what he believed it was necessary to do in order to defend himself: s 421(1)(c). For reasons already given, that must be taken to have been found in favour of the applicant. And his perception was integral to the issue raised by s 421(1)(b) - the reasonableness of his conduct in responding to those circumstances. Both questions above are therefore to be assessed by reference to the applicant’s subjective perception - affected, as it was (as the sentencing judge accepted) by some (indeterminate) level of drug intoxication.

5. [46]

   The applicant’s submissions proceed on the basis that (i) what the applicant perceived (in accordance with his evidence) was that Mr George was armed with a gun, and was prepared to use it against the applicant; and (ii) that the applicant believed that using his own gun to shoot Mr George was necessary in order to defend himself. As I have indicated above, logical analysis of the jury’s verdict suggests that both propositions are correct.

6. [47]

   The substratum of all of these grounds is the treatment by the sentencing judge of the applicant’s subjective perception of the circumstances in which he found himself. The point sought to be made (as I understand it) is that the sentencing judge did not proceed upon the basis that the applicant’s perception of the circumstances was that Mr George was armed with a gun and was about to use it, but on the more generalised (and lesser) basis that the applicant perceived himself to be in some danger from Mr George and his supporters.

7. [48]

   Ground 1 is based upon two premises. The first is that, on sentencing, the Crown made a concession to the effect that the applicant believed that Mr George had a gun in his possession and was about to use it. The second is that, in sentencing the applicant, the judge departed from that concession, without signalling that such a course was in his contemplation and therefore allowing for further argument, or an attempt to persuade him of the relevant facts.

8. [49]

   There is one passage in the Crown’s sentencing submissions on which the applicant relied to support the proposition that such a concession had been made by the Crown. That is that part of the submissions that reads:

9. [50]

   That, it was submitted in this Court, was consistent with the approach taken on behalf of the applicant, which was encapsulated in the following passage in the written submissions:

10. [51]

    However, the Crown submissions must be read as a whole; later, the Crown submitted that “even if” the applicant believed that Mr George was reaching for a gun, it was not necessary for the applicant to shoot him; and, in the subsequent paragraph, the Crown submitted that the applicant was “only guessing that” Mr George had a gun.

11. [52]

    The first premise is, therefore, at the least, overstated. There was no joint position taken by the parties.

12. [53]

    The question raised by Ground 1, that is, whether, assuming the parties to have adopted a “joint position” as to the belief of the applicant, the sentencing judge departed from that position, in such a way as to give rise to procedural unfairness, thus becomes superfluous. However, since I have concluded above that what is said to have been the “joint position of the parties” does accurately reflect what the jury found, the real question (see Ground 3) is whether the approach taken by the sentencing judge was inconsistent with that proposition.

13. [54]

    The submissions advanced in support of Ground 2 were entirely (and erroneously) based upon s 418 of the Crimes Act. The relevant section for this purpose is s 421. However, the issue is essentially the same. The proposition advanced in support of the applicant was that the sentencing judge found only that the applicant believed that it was necessary to act in self-defence, whereas what was required was a finding that the applicant believed that it was necessary to engage in the conduct he did - that is, shooting Mr George - in order to defend himself.

14. [55]

    It may be - and was, on all sides - accepted that the applicant believed that it was necessary to defend himself. That is implicit in the jury’s verdict. That is not the same as finding - and proceeding on the basis that - the applicant believed that the conduct that was necessary for that purpose was as extreme as shooting Mr George.

15. [56]

    It was also implicit in the jury verdict - and explicit in the Remarks on Sentence - that the applicant’s conduct in shooting Mr George was not a reasonable response in the circumstances as he perceived them. The reasonableness of the applicant’s conduct was to be measured against the applicant’s perception of the circumstances in which he found himself. A relevant and important sentencing question concerns the extent to which his conduct departed from what would have been a reasonable response had the circumstances been as he perceived them.

16. [57]

    If the applicant perceived (as was the fact) that Mr George was armed only with knuckledusters, then his conduct was grossly disproportionate. If, however, his perception was that Mr George was armed with a gun which he was about to use, then the degree of departure from what was reasonable would inevitably be seen as substantially less.

17. [58]

    The emphasis in s 421 on the response of an accused person “in the circumstances as he or she perceives them” calls for an evaluation of the degree to which the response exceeds that which would be a reasonable response if those circumstances existed. For reasons I have given above, the Crown was not able to exclude the possibility that the applicant’s perception was that Mr George was armed with a gun and that he was about to use it.

18. [59]

    The sentencing judge did not make any direct or express finding of what the circumstances were as perceived by the applicant. Rather, he repeatedly accepted that the applicant perceived that he was under threat from Mr George and his supporters (“[he] formed the view that he was going to be physically attacked”, and “he formed the view that it was necessary to defend himself”) but never clearly articulated the content of the applicant’s belief. Such a finding was essential to the key question for sentencing - to what extent was the applicant’s response disproportionate to the circumstances as perceived by him?

19. [60]

    Had the sentencing judge made explicit reference to the applicant’s perception of the circumstances in which he found himself, he must, in my view, have concluded that that perception included the presence of a loaded gun in Mr George’s possession, and that Mr George was about to use it against him.

20. [61]

    That omission had repercussions in the evaluation of the degree of unreasonableness (excessiveness) of the applicant’s response, which his Honour characterised as “manifestly” and “grossly” excessive.

21. [62]

    Ground 3 complains that certain of the findings of fact were inconsistent with the jury verdict of not guilty of murder, but rather were consistent with a conviction for murder. I have mentioned above the difficulty of reconciling some aspects of the jury verdict.

22. [63]

    The finding that the arrangement was that there was to be a fist-fight (the implication being that the applicant was a knowing party to that arrangement) is, in my opinion, inconsistent with the finding that the applicant believed that it was necessary to use his gun against Mr George, as is the finding that the applicant could see no weapon on any of his opponents (with its implication that the applicant had no reason to believe that Mr George was armed), and the finding that the alternatives available to the applicant included firing warning shots.

23. [64]

    I have concluded that there was error in the sentencing process. It accordingly becomes necessary for this Court to re-sentence: Kentwell v The Queen [2014] HCA 37; 252 CLR 601.

24. [65]

    Having regard to my conclusion that there was error, it is unnecessary (and probably unnecessarily distracting - see Davis v R [2015] NSWCCA 90) to determine whether the sentence imposed was manifestly excessive.

25. [66]

    The argument addressed to this ground was made by reference to a table setting out previous sentences imposed in respect of jury convictions for manslaughter by reason of excessive self-defence. Those sentences are useful in the consideration of the fresh sentence that must be imposed.

26. [67]

    The limitations on the use of bare data of this kind are well known. However, it is of interest that, of the cases noted, only one (R v Forbes [2005] NSWCCA 377; 160 A Crim R 1) resulted in a sentence of 12 years (with a non-parole period of 8 years). That sentence was imposed in relation to one of two separate offences of manslaughter with which the court was dealing at the same time.

27. [68]

    In response to Ground 4, the Crown identified a number of relevant considerations. While these considerations were advanced as countering the proposition that a sentence of 12 years with a non-parole period of 9 years was manifestly excessive, they are also relevant to the fresh exercise, by this Court, of the sentencing discretion.

28. [69]

    Those considerations (and, where appropriate, my interpretation) are:

29. [70]

    In re-sentencing the applicant, it is necessary and appropriate to take into account the maximum penalty provided for the offence of manslaughter (imprisonment for 25 years): Muldrock v The Queen [2011] HCA 39; 244 CLR 120.

30. [71]

    It is also necessary to bear in mind that, because of the infinitely various circumstances in which the offence of manslaughter is committed, limited guidance is to be obtained from previously imposed sentences.

31. [72]

    I have set out above what I consider to be the necessary implications of the jury verdict. Essential to that analysis is the applicant’s perception that he was in danger of being shot by Mr George. That, in my opinion, is a significantly mitigating factor. (It is not to the point that another jury might have taken a more sceptical view of the evidence.)

32. [73]

    I have come to the view that the appropriate sentence to impose upon the applicant is one of imprisonment for 10 years, commencing on 12 February 2013 and expiring on 11 February 2023, with a non-parole period of 7 years and 6 months, expiring on 11 August 2020.

33. [74]

    The orders I propose are:

    1. (1)

       Leave to appeal against sentence granted;

    2. (2)

       Appeal allowed, sentence imposed on 8 August 2014 quashed;

    3. (3)

       In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 7 years and 6 months commencing on 12 February 2013 and expiring on 11 August 2020 with a balance of term of 2 years and 6 months expiring on 11 February 2023.

34. [75]

    HAMILL J: I agree with Simpson J.