Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Newburn v R [2022] NSWCCA 139 Hearing dates: 15 June 2022 Decision date: 29 June 2022 Before: Leeming JA; Garling J; Lonergan J Decision: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentence imposed on 17 December 2020 is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment with a non-parole period of 4 years and 6 months commencing on 20 May 2019 and expiring on 19 November 2023, with a balance of term of 3 years expiring on 19 November 2026. Catchwords: SENTENCING — appeal against sentence — manslaughter on basis of excessive self-defence — assessment of the objective seriousness of the offending — necessity to identify the circumstances as the offender perceived them at the time of the criminal conduct — appeal allowed Legislation Cited: Crimes Act 1900 s 421 Cases Cited: Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Patel v R [2019] NSWCCA 170 Smith v R [2015] NSWCCA 193 Texts Cited: Not Applicable Category: Principal judgment Parties: Paul Newburn (App) The Crown (Resp) Representation: Counsel: T Quilter (App) B Hatfield (Resp) Solicitors: M Schneider (App) Solicitor for Public Prosecutions (Resp) File Number(s): 2019/0021928 Publication restriction: Not Applicable Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2020] NSWSC 1878 Date of Decision: 17 December 2020 Before: Wilson J File Number(s): 2019/21928 Judgment 1. THE COURT: The applicant, Paul Russell Newburn, seeks leave to appeal against the sentence imposed on him on 17 December 2020, by Wilson J sitting in Newcastle. 2. On 4 September 2020, the applicant pleaded guilty to the manslaughter of Glen Smith ("the deceased") on 20 January 2019 at Bolton Point. The Crown accepted that plea in full discharge of the Indictment, which also included a count of murder. The applicant was convicted of the offence of manslaughter. 3. A sentence hearing took place on 16 December 2020. On the following day her Honour sentenced the applicant to a term of imprisonment of 9 years commencing from 20 May 2019, with a non-parole period of 5 years and 9 months, expiring on 19 February 2025. 4. The applicant seeks leave to appeal from that sentence on the following ground: "The sentencing judge erred in her assessment of the seriousness of the offence by failing to have regard to the appellant's perception of the threat at the time he engaged in the 'conduct' that involved 'the infliction of death'." Remarks on Sentence 1. Her Honour was provided with a set of agreed facts. Those agreed facts concluded with this statement: "It is accepted that the offender had an intention to inflict grievous bodily harm at the time of the fatal stab wounds. The plea of guilty to manslaughter is entered on the basis of excessive self-defence." 1. The facts which were relevant to that plea were set out by her Honour. For the purposes of this application, it is sufficient to record that the applicant and his partner, who shared accommodation, fell into dispute when his partner announced that she wished to end her relationship with him. There was an argument as to whether the applicant could take any of her own property with her if she left. She left without taking any property. There was ongoing argument in public between them. Nearby neighbours, including Ms Bell, called out to the applicant to leave his domestic partner alone. 2. The deceased came to Ms Bell's aid, telling the offender to leave. Ms Bell escorted Ms Walker into the house of the deceased, no doubt for her protection. An hour or so after this altercation, the applicant returned to the house where Ms Walker was, apparently to speak with her. Instead, he had an argument with the deceased. During the argument the deceased was overheard by a witness threatening to "punch on" with the applicant and to "bash" him. Another witness, who heard those threats, called the police. The applicant did not engage in any physical fight with the deceased and returned to his accommodation. 3. About 30 minutes later, the deceased, Ms Bell and Ms Walker walked to the house where the applicant was living. Ms Walker went to the door of the house, but Mr Stewart, who was the householder, refused to allow her entry. The applicant was summoned to the door and argued with Ms Walker on the front doorstep. At that point, the deceased emerged from where he had been waiting, and approached the front door. He was armed with a weapon, namely, a golf club with a missing head. The deceased began jabbing the club through the screen door at the applicant. At the same time Ms Bell and Ms Walker demanded entry in order to obtain Ms Walker's property. The householder was yelling at them to get off his property and warning them that the police were on the way. He then slammed the front door closed. 4. Immediately after that, the deceased struck the front door a number of times with the golf club and smashed a number of pot plants at the front of the house. There was a great deal of yelling and shouting. The householder retrieved a homemade weapon which consisted of a 1.5m long curtain pole with a 30cm knife taped to the end of it. He placed it next to the front door. 5. The deceased, Ms Walker and Ms Bell continued shouting – and at one point got into an argument with a neighbour who told them to leave. The deceased had been drinking, was seemingly well affected by alcohol and possibly cannabis - blood taken at post-mortem showed a high blood alcohol content of 0.169 and Delta-9-THC - was aggressive during the altercation and moved as if to strike the neighbour with the golf club he was carrying. The three, including the deceased, then moved away from the neighbours and returned to the house where the applicant was. They stood in or near the driveway of the house and shouted abuse towards to the house. 6. At that point, the applicant armed himself with the weapon which had been placed inside the front door of the house by the householder and approached the deceased. The applicant began to jab his weapon at the deceased and the deceased retaliated by jabbing the shaft of the golf club towards the applicant. Notwithstanding Ms Walker's attempts to defuse the situation, the fight continued. 7. The agreed facts insofar as they addressed the circumstances immediately prior to the applicant's fatal blow were as follows: "Both men continued fighting. The Offender stabbed the Deceased in the upper right thigh. At this point the Deceased called out 'you have got me in the nuts you fucking dog cunt'. The Deceased then attempted to strike the Offender with his weapon. The Offender was able to avoid the strike. He then then [sic] stabbed the Deceased again, striking the left side of the chest and penetrating through the 5th rib. The Deceased staggered a short distance. He said, 'he stabbed me' and started to fall to the ground. Ms Walker and Ms Bell came to his aid." 1. The deceased died as a consequence of a single penetrating stab wound to the left side of his chest which passed through the ribcage, entered the chest cavity and penetrated the pericardial sac and the left ventricle of the heart. 2. It was on the basis of this account of the facts that her Honour was asked, together with the other evidence placed before her, to sentence the applicant. 3. In her Remarks on Sentence, her Honour recorded the Agreed Facts, which are summarised above. She recorded that the applicant was entitled to receive a full discount of 25% on any sentence that would otherwise have been imposed because of his offer at an early stage to plead guilty to manslaughter in full discharge of the Indictment on the basis of excessive self-defence. 4. Her Honour considered the applicant's criminal history including that, at the time of this offence, the applicant was subject to a warrant which had been issued for his arrest for breach of an Apprehended Domestic Violence Order. 5. Her Honour noted that the applicant gave sworn evidence and tendered a quantity of documentary material including a report of Dr Richard Furst, a forensic psychiatrist. Her Honour noted that part of Dr Furst's report where the applicant told Dr Furst that the present offence occurred within the context of an argument with Ms Walker. 6. Her Honour's remarks included this summary of the report at [37]: "He described himself as in 'shock' when Mr Smith, Ms Bell and Ms Walker were outside the house he was staying in, and said he became fearful that they would break into the house and hurt him and Mr Stewart. He took the decision to arm himself and go outside. He said that he has never stopped regretting that decision." 1. Her Honour also noted that part of Dr Furst's report where he recorded that the applicant had told him this: "I never meant to do what I did, it was never intentional". Her Honour noted that the applicant's evidence given on oath before her supported those extracts. 2. Having regard to the single ground of appeal, it is necessary to have regard to her Honour's comments in the course of her Remarks on Sentence dealing with the objective seriousness of the offence. 3. Her Honour commenced by noting that all offences of manslaughter are serious as a human life has been taken, often violently. Her Honour noted that the maximum penalty specified by the Parliament of 25 years imprisonment reflected the community's concern at such violent loss of life. 4. Her Honour made the following remarks which are relevant to the ground of appeal: "50. The plea was accepted by the Crown on the basis of excessive self-defence. That is, the offender believed he had to act as he did in his own defence (and perhaps in Mr Stewart's defence); his act caused Mr Smith's death; and the act was not a reasonable response to the circumstances as the offender perceived them to be. 51. For a number of reasons this is an objectively grave example of manslaughter by excessive self-defence. 52. The events that led to the altercation between the offender and Mr Smith came about because of the offender's refusal to allow Ms Walker to leave their shared accommodation and to take her property with her, as she was entitled to do. Had he learned anything from his previous convictions for domestic violence offences, including the contraventions of the apprehended domestic violence order in place to protect Ms Walker, the events subsequent to his refusal to allow her to take her property with her on leaving would never have taken place. 53. The likelihood of an altercation was only increased by the offender's second attempt to make contact with Ms Walker, at a time when he was aware that she was under the protection of Mr Smith and Ms Bell. Again, had the offender accepted that Ms Walker was entitled to leave him if she so chose what followed on this night would not have occurred. 54. At the point at which the offender left the safety of Mr Stewart's house to confront Mr Smith he had a number of other, more sensible and less objectively dangerous choices available to him. The most obvious was simply to remain inside the house. Whilst Mr Smith had struck the front door of the property with the golf stick and there was a great deal of noise and smashing of pot plants outside, no attempt had been made by him, or Ms Walker, or Ms Bell to force entry to the premises. Police had been called and in those circumstances there was no rational basis for the offender to leave the safety of the house and approach Mr Smith. As he said himself in his evidence, he could simply have gone out the back door. 55. However, the offender was in a state of panic and appears not to have considered the more rational choices that might have been open to him. He chose to leave the house and confront Mr Smith and to do so having armed himself with a much larger and significantly more dangerous weapon than that which Mr Smith was carrying. Mr Smith was armed with what amounted to a short metal pole. The offender armed himself with a homemade spear of close to two metres in length. … 57. The offender's response to the threat that he perceived existed very significantly exceeded a reasonable response. His moral culpability for the offence is high. 58. For those reasons I cannot accept the submission that this offence falls below the mid-range for manslaughter. Insofar as gravity may be expressed by a place in a notional range, this offence in the Court's assessment falls at or perhaps a little above the mid-range." 1. Later in her remarks, her Honour noted as an unusual feature of this particular case that the applicant's substance dependence mitigated his culpability to a degree. Her Honour found that although there was no direct causal link to the offence, the applicant's drug dependence was nevertheless a relevant feature, as were the applicant's undiagnosed childhood disorders. Of that, her Honour said that she accepted Dr Furst's opinion which was to the effect that the applicant's childhood disorders and drug addiction: "… contributed to emotional deficits that likely made him more sensitive to real or perceived threats and also diminished his capacity to think of alternative courses of action at the time." 1. With respect to this, her Honour remarked that those features seemed to have coalesced and influenced the applicant to make the choice to leave the safety of the house and confront the deceased. Her Honour concluded that that was a choice that was otherwise difficult to understand. Applicant's Submissions 1. The applicant submitted that the sentencing Judge failed to properly assess the extent to which the applicant's conduct exceeded a reasonable response to the threat he perceived. As a consequence, he submitted that a lesser sentence was warranted in law and should be imposed. 2. The applicant submitted that in coming to the finding that the applicant's response to the threat he perceived very significantly exceeded a reasonable response, the sentencing Judge failed to consider the applicant's perception of the threat at the time he engaged in the conduct that resulted in the infliction of death. He submitted that, as a result, her Honour's assessment of the extent to which the applicant exceeded a reasonable response was a distorted one. 3. The applicant submitted that the relevant conduct to be considered as constituting the unreasonable response was the use of force that involved the infliction of death, namely a single act of stabbing the deceased in the left side of his chest and not the wisdom or irrationality of leaving the house to confront the deceased. The applicant submitted that he was to be sentenced on the basis that he believed this conduct was necessary to defend himself. The applicant's submissions were that his perception of the situation at the time he engaged in that conduct must have been informed by immediately preceding circumstances including: 1. that the deceased was armed and had just attempted to strike the applicant with his weapon; and 2. the deceased had not curbed his aggression after being stabbed in the upper right thigh. 1. As well, the applicant noted that the sentencing Judge accepted the description given by the applicant to Dr Furst, that he was "in shock" when the deceased, Ms Bell and Ms Walker were outside the house he was staying in and that he was fearful that they would break into the house and would hurt him and Mr Stewart. 2. In substance what the applicant submitted was that her Honour had had regard to the earlier circumstances as described in [52] and [53] of her remarks, which related to the unnecessary nature of the altercation between the applicant and Mr Smith and the fact that the likelihood of an altercation was increased by the applicant's further attempts to make contact with Ms Walker and, finally, that the decision of the applicant to leave the house was unwise given the other options which were more reasonably available. 3. The applicant submitted that, whilst these may be relevant contextual or background issues, the real issue was that the applicant's conduct relevantly only became criminal when he exceeded what a reasonable person would have done in his position in response to the perceived threat. In that respect, the applicant submitted that her Honour failed to have regard to the immediately preceding issues to which attention has been drawn above in [27], and that her Honour's Remarks failed to identify and consider the applicant's perception of events at the time he carried out the conduct, including that the deceased, an armed man, had just tried to strike him even after receiving a blow to his thigh. 4. The applicant submitted that this was an error and that her Honour's focus on the earlier points in this time and the bad or inappropriate decision-making of the applicant were permitted by her Honour to outweigh the relevant considerations. Crown's Submissions 1. The Crown maintained the submissions which it had made to the sentencing Judge, that the applicant's conduct: "significantly departed from what would have been a reasonable response had the circumstances been as he perceived them." 1. The Crown submitted that the analysis advanced on this application differed from the approach below, where counsel for the applicant accepted that the fight which came into being after the applicant left the house was a "tit-for-tat exchange". 2. The Crown submitted that the applicant's approach erroneously narrows the relevant considerations to be taken into account when considering the applicant's perception of the circumstances, to what was described by the Crown as being the "immediately preceding circumstances". 3. The Crown also pointed to the fact that at the sentence hearing, the applicant did not adduce any additional evidence of his perception at the time but, rather, relied on averring the truth of what he had told Dr Furst for the purposes of Dr Furst's report. 4. Finally, the Crown submitted that no more favourable inference was available or could be drawn on the balance of probabilities on the evidence before the sentencing Judge than that the applicant acted in a "panic" which must have continued during the fight even though Ms Walker had attempted to intervene between them. It followed, the Crown submitted, that there was no error in the exercise of the evaluative process designed to determine the level of objective seriousness. 5. As well, the Crown drew attention to the decision of this Court in Mulato v R [2006] NSWCCA 282 and emphasised that characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing Judge in performing the task of finding facts and drawing inferences from those facts. The Crown submitted that this Court would be slow to intervene to set aside a conclusion of the sentencing Judge and would be very slow to determine such matters for itself. 6. Finally, the Crown submitted that the finding as to the degree to which the use of force was not reasonable is only one part of a finding on objective seriousness and was a matter for the sentencing Judge. The appeal ought to be allowed 1. It is clear from the authorities that: 1. A conviction of manslaughter based on a finding of excessive self-defence carries with it the implication that the offender perceived that he or she was in a position in which it was necessary that they act in order to defend himself or herself: Smith v R [2015] NSWCCA 193 at [44]; Patel v R [2019] NSWCCA 170 at [14]; 2. Central to the sentencing exercise is the identification of: 1. the circumstances as the offender (rightly or wrongly) perceived them to be; and 2. what, precisely, the conduct was that the offender believed was necessary in order to defend himself or herself: Smith at [44]-[45]; Patel at [14]; 1. The offender's perception of the circumstances is relevant to the determination of what he or she believed it was necessary to do in order to defend himself or herself: s 421(1)(c) Crimes Act 1900; Smith at [45]; 2. An offender's perception is also integral to the issue of the reasonableness of his or her conduct in responding to those circumstances: s 421(1)(b) Crimes Act; Smith at [45], [56], [58]; 3. Both questions are to be assessed by reference to the offender's subjective perception regardless of whether that was objectively reasonable, taking into account any intoxication: Smith at [45]; and 4. The anterior conduct of the offender, including the reasons for their attendance at the scene of the crime and the reasons for their decision to enter into a confrontation with the deceased, forms no part of the actual offence and is not directly relevant to the assessment of the gravity of the offending: Patel at [14]. 1. In our view, the learned sentencing Judge fell into error in her consideration of the objective criminality of the conduct of the applicant. 2. The events which led to the confrontation between the applicant and the deceased were relevant only insofar as they provided context to the actual offence. By contrast, in the learned sentencing Judge's remarks on sentencing, those events were integral to and formed the basis of her Honour's assessment of the seriousness of the offending as "objectively grave". 3. As is required by the authorities referred to above, it was firstly necessary to identify the threat which the applicant perceived. In the circumstances of this case, the evidence established that the applicant was inside a house which was the subject of an attack by the deceased. The deceased used a weapon, namely the shaft of a golf club, to damage the screen door, to strike the front door and also smashed garden pots in the vicinity of the house. 4. Although there was an interlude whilst the deceased and his two companions argued with a neighbour, the deceased returned with his two companions to the house in which the applicant was and recommenced verbally abusing those in the house, including the applicant. At that point, according to the account given by the applicant to Dr Furst which was verified in the applicant's oral evidence on sentence and unchallenged by the Crown, the applicant was in shock. He felt afraid, fearing that the people outside were going to come into the house by breaking down the door. He was worried that they would hurt him and the householder. 5. It was in that state of mind that the applicant took up the weapon and left the house and confronted the deceased. There was then a fight between them with each of them wielding the weapon that was in their possession. At that time, having regard to his previous medical and behavioural issues and his addiction to illicit drugs, the applicant's emotional deficits made it likely that he was more sensitive to the real or perceived threats and had a diminished capacity to think of alternative courses of action. 6. In the following confrontation which was described by some of the eye‑witnesses as being a "tit-for-tat" confrontation, the applicant was being attacked with a weapon and he was responding. His first response was to thrust his weapon towards the thigh of the deceased. Although that wounded the deceased, it did not stop the deceased from continuing his verbal abuse of the applicant. Nor did it cause the deceased to desist from attacking the applicant. It was at that moment in time, after avoiding a further attempted strike by the deceased, that the applicant used his weapon for the second time by thrusting it and stabbing the deceased in the area of the fifth rib and penetrating his heart and killing him. 7. There is no doubt, and the applicant accepted by his plea, that that was not a reasonable response in the position in which he was. 8. However, having regard to the fear which he felt and the perceived threat that he would be hurt by the attack on him by the deceased and, having regard to the fact that it was found by the sentencing Judge (and accepted) that his intention was not to kill the deceased but rather to cause him grievous bodily harm, in our view it was not open to the sentencing Judge to find that the response was one which "very significantly exceeded a reasonable response". Her Honour's finding that the applicant's moral culpability for the offence was high depended on that preceding conclusion. As well, her Honour's conclusion that the offence fell at or a little above the mid‑range of offences of manslaughter again depended upon that finding which we are satisfied was erroneous. 9. In so finding, we are conscious of and acknowledge the constraints expressed in Mulato, referred to above. 10. Accordingly, there should be a grant of leave to appeal and the appeal should be allowed. Resentencing 1. In the event of resentencing, the applicant relied upon an affidavit sworn 3 May 2022. We have taken all of those matters into account. It is not suggested that, for the purposes of resentence, the conclusions and findings of the trial Judge with respect to the subjective circumstances of the applicant were erroneous. 2. It is clear from the material before the sentencing Judge and the additional factual material placed before this Court, that the applicant has ongoing support from his family, that his time in custody has been difficult because of the restrictions imposed by reason of the COVID-19 pandemic, particularly with respect to family visits and family contact. The applicant has not offended whilst he has been in custody and has engaged in a significant degree of work whilst in custody. He is viewed favourably by his fellow inmates and the correctional officers. The applicant remains remorseful for what occurred and has taken significant steps to address his long-standing drug addiction. He has been stabilised on a methadone program. 3. It is necessary for this Court to engage in an assessment of the degree to which the response of the applicant to the circumstances as he perceived them to be exceeded that which was reasonable. In our view, for the reasons addressed above, that response was just above what would have been a reasonable response. Having regard to the applicant's pre-existing condition and in the circumstances described above, this offence and the applicant's moral culpability in our view fell below the mid‑range of offences of manslaughter. 4. In resentencing the applicant, it is necessary and appropriate to take into account as a guidepost the maximum penalty provided for the offence of manslaughter, being imprisonment of 25 years: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. 5. Taking all of the factors referred to in the course of this judgment into account, our view is that the appropriate sentence to impose, before allowing the 25% discount to which the applicant is entitled, would be a term of imprisonment of 10 years with a non-parole period of 6 years. This takes into account a similar ratio by reason of special circumstances which the sentencing Judge found and which we agree is appropriate. 6. However, the sentence to be imposed is one which requires a 25% allowance for the applicant's early plea of guilty. Accordingly, the sentence will be one of 7 years and 6 months in total with a non-parole period of 4 years and 6 months. Orders 1. The Court's orders are: 1. Leave to appeal against sentence granted. 2. Appeal allowed. 3. Sentence imposed on 17 December 2020 is quashed. 4. In lieu thereof, the applicant is sentenced to imprisonment with a non‑parole period of 4 years and 6 months commencing on 20 May 2019 and expiring on 19 November 2023, with a balance of term of 3 years expiring on 19 November 2026. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2022