R v Hawkins (No 12) [2020] NSWSC 1910

Supreme Court New South Wales

Medium Neutral Citation: R v Hawkins (No 12) [2020] NSWSC 1910 Hearing dates: 16 December 2020 Date of orders: 23 December 2020 Decision date: 23 December 2020 Jurisdiction: Common Law Before: Lonergan J Decision: For the offence of manslaughter, the offender is sentenced to a term of imprisonment comprising a non-parole period of 5 years commencing on 9 December 2018 and expiring on 8 December 2023 and an additional term of 2 years and 6 months commencing on 9 December 2023 and ending on 8 June 2026. Catchwords: SENTENCING – manslaughter – excessive self-defence – remorse – good prospects of rehabilitation – discount for plea of guilty Legislation Cited: Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Jonson v R (2016) 263 A Crim R 268; [2016] NSWCCA 286 Watson v Foxman (1995) 49 NSWLR 315 Category: Sentence Parties: Regina (Crown) Daniel Mark Hawkins (Offender) Representation: Counsel: G Turner (Crown) N Steel (Offender)

Solicitors: Director of Public Prosecutions (NSW) (Crown) Zhai & Associates Lawyers (Offender) File Number(s): 2018/378301 Publication restriction: Nil

Judgment 1. On 14 September 2020, the offender, Daniel Mark Hawkins, was arraigned on an indictment that charged him with murdering Kenneth Denniss on 8 December 2018. The offender entered a plea of not guilty. 2. The trial proceeded before a jury and me over the ensuing eight weeks. 3. The offender had been previously arraigned and a trial commenced before Walton J and a jury in March 2020, but for reasons associated with the early stages and uncertainties created by the COVID-19 pandemic, the jury was discharged and the trial adjourned. 4. The Crown case was that after an altercation over a motorbike at the home of Mr Denniss in the mid-afternoon of 8 December 2018, during which the offender was stabbed in the arm, the offender took a loaded firearm back to the home of Mr Denniss and carried out his plan to shoot Mr Denniss dead because he was angry about the earlier altercation. 5. The defence case was that the offender had been frightened by Mr Denniss in their earlier altercation, having been suddenly stabbed and threatened during what the offender thought was a friendly exchange about the return of the motorbike. The perception of threat was heightened by the effect of the offender's post-traumatic stress disorder (PTSD). The offender obtained a loaded firearm and returned to the home of Mr Denniss with a view to warning him off. He called out from the driveway "Oi, cunt" and Mr Denniss suddenly pushed up the garage door and came "flying out" with a long timber and silver implement in his hand which the offender thought from his position 13 metres away, was a shotgun. He shot Mr Denniss in self-defence believing that his conduct was necessary to defend himself and that it was a reasonable response in the circumstances as he perceived them. 6. On 11 November 2020 the jury returned with a verdict of not guilty of murder but guilty of manslaughter. The Court recorded his conviction. Submissions in respect of sentence were heard on Wednesday 16 December 2020. I was also assisted by extensive written submissions from both counsel. 7. It falls to me today to sentence the offender. 8. As I have said, the jury found the offender guilty of manslaughter. The maximum penalty for that offence is a term of 25 years: s 24 Crimes Act 1900 (NSW). There is no standard non-parole period for this offence. 9. It is not my role to seek to determine what facts the jury found; that would be impossible. My task is to make findings on the objective and subjective facts relevant to sentencing the offender, but I must ensure those findings are consistent with the verdict of the jury. Any findings that are adverse to an offender must be arrived at beyond reasonable doubt: Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [14] per Gleeson CJ, Gummow and Hayne JJ. 10. In approaching this task, I accept the submissions made by counsel for the offender that in acquitting the offender of murder, the jury must have largely accepted the factual account given by him.