Supreme Court New South Wales Medium Neutral Citation: R v Steele [2024] NSWSC 214 Hearing dates: 8 March 2024 Date of orders: 19 March 2024 Decision date: 19 March 2024 Jurisdiction: Common Law Before: Davies J Decision: John Steele is convicted of the manslaughter of David Steele. The offender is sentenced to a non-parole period of 3 years 6 months commencing on 28 April 2022 and expiring 27 October 2025 with a balance of term of 3 years 3 months expiring 27 January 2029. The offender is first eligible for parole on 27 October 2025. Catchwords: CRIME – sentence – manslaughter – excessive self-defence – offender stabbed adult son in the neck at their home – offending arose during family argument – victim approached offender quickly – single stab wound to the neck using kitchen knife – offender accepted responsibility but unable to explain or recall inflicting the stab wound – relatively impulsive offending – just below mid-range of objective seriousness – where offender did not give evidence at sentence proceedings – three psychological and psychiatric reports – no evidence of mental health concerns – 12 character references speak of a good, kind and non-aggressive person – offender aged 76 years – currently in remission from leukemia – no criminal record or concern about reoffending – offender entirely remorseful for his actions – significant variation of statutory ratio given offender's age and health conditions SENTENCING – plea of guilty – where offender originally charged with murder only – where offender made an offer to plead guilty to manslaughter by unlawful and dangerous act before committal – offer rejected by Crown – Crown later accepted plea to manslaughter by excessive self-defence – s 25E of the Crimes (Sentencing Procedure) Act 1999 concerned with the "offence" not its basis – entitled to 25% discount for guilty plea Legislation Cited: Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A, 25E, 44 Cases Cited: Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 Lupton v R [2024] NSWCCA 29 R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79 R v Charters [2020] NSWSC 842 R v Loveridge [2014] NSWCCA 120 R v Van Oosterum [2004] NSWSC 532 R v Walcott [2019] NSWSC 443 Texts Cited: Nil Category: Principal judgment Parties: Crown John Steele (Offender) Representation: Counsel: C Young (Crown) M Dennis SC (Offender) Solicitors: Office of the Director of Public Prosecutions (Crown) Watsons Solicitors and Barristers (Offender) File Number(s): 2022/123009 Publication restriction: Nil Judgment 1. On 28 April 2022 at about 8:00pm the offender, John Steele, stabbed his son David in the neck at the property where they lived in Gilbert Cory Street, South West Rocks. The stab wound was to the right side of David's neck, and the knife perforated the right internal jugular vein and the right carotid artery. David died shortly thereafter. 2. The offender was charged with murder, and was committed for trial to this Court on 21 December 2022. The trial was fixed for hearing on 9 October 2023. 3. On 26 September 2023, the offender made an offer to plead guilty to the offence of manslaughter on the basis of excessive self-defence. That offer was accepted by the Crown, and the offender was re-arraigned by me on 3 October 2023 where he entered a plea of not guilty to murder but guilty to manslaughter. He now comes to be sentenced for that offence. The maximum penalty for manslaughter is 25 years' imprisonment, and there is no standard non-parole period. The offending 1. The offending is detailed in a statement of agreed facts which can be summarised as follows. 2. David was living with the offender in Gilbert Cory Street, South West Rocks. He was one of three children of the offender and Jennifer Cole. The offender and Ms Cole had separated many years before the offending, but had remained in frequent contact and on good terms. Ms Cole had died from cancer at Kempsey Hospital on 27 April 2022, the day before the offence. The offender's daughter, Aimee Cicciarello, was staying at the offender's property at the time of her mother's death. 3. A little after 5:00pm on the day of David's death, the offender, David and Ms Cicciarello went out for dinner at a restaurant in South West Rocks. During the course of the dinner, which took about an hour and a half, the three of them consumed between them a bottle of white wine, a bottle of red wine and four cans of Jack Daniel's. When later interviewed by the police, the offender said that he personally had consumed half a bottle of white wine, half a bottle of red wine and one can of Jack Daniel's. At the time the group left the restaurant there was no tension between them. 4. When they returned home at about 7:30pm each of them had a glass of cognac. They looked at family photo albums and spoke about Ms Cole. 5. An argument developed amongst them when David asserted that the offender and Ms Cole were having an argument in one of the photographs in the album. Ms Cicciarello became involved in the argument as well, with both the offender and her yelling at David to go to bed. Although voices were raised, and they were heard by neighbours arguing loudly for about five minutes, there was then no physical contact between the parties. 6. At a point where the offender thought that David was becoming very aggressive during the argument, he (the offender) walked to the kitchen and removed a knife from a knife block. He said words to the effect, "If you come near me, I'll kill you". At that time, David was heading towards the bedroom, but he then turned and approached the offender quite quickly. Although David did not have a weapon, the offender understood that he was either going to push him over or knock him over. The offender then stabbed David once in the right side of his neck with the knife as he approached him. At the time he did so, it is agreed that the offender had formed the intention to inflict very serious harm on David. 7. David collapsed and the offender held him. 8. Ms Cicciarello called triple 0 at 8:12pm, and also went to a neighbour's house to get assistance. Paramedics arrived at about 8:30pm and found David lying face up on the floor of the dining room surrounded by a large amount of blood. The offender was leaning over him. After the offender was moved away from the deceased, he was overheard to say to Ms Cicciarello, "Don't worry, I did it, it's okay". 9. The offender spoke to police and was recorded on body worn video. He told them what happened to the best of his memory but said he could not remember the exact moment of the infliction of the injury. He could remember events from immediately before and afterwards. He accepted responsibility as being the person who had inflicted the wound. 10. The offender was arrested and taken to hospital where a blood sample was taken at 12:41am on 29 April 2022. His blood alcohol level at that time was 0.088g/100ml. An expert toxicologist opined that at the time of the incident the offender's blood alcohol reading would have been between 0.068g/100ml and 0.200g/100ml, and most likely would have been 0.107g/100ml. Although the offender did not display any clear signs of intoxication on the night, the toxicologist indicated: At the time of the incident Mr Steele would have been affected by the alcohol he had been drinking. His cognitive abilities would have been affected and he would have been more disinhibited than if he had not been drinking. 1. The offender gave a recorded interview with the police at 3:57am on 29 April 2022 in which he accepted responsibility for inflicting the stab wound, but maintained he could not remember what exactly had happened. 2. The post-mortem examination concluded that the deceased died from a stab wound to the right side of his neck. The stab wound perforated the right sternocleidomastoid muscle, the right sternohyoid muscle, the right internal jugular vein and the right carotid artery. There were features of defence injuries present. 3. Toxicology detected a blood alcohol level in the deceased of 0.046g/100ml. Objective seriousness 1. The offender submitted that the offence should be seen as being within the lower range of objective seriousness. The Crown submitted that it was an objectively serious example of manslaughter by excessive self-defence. 2. Whilst it may be accepted that the offender perceived a risk against which he needed to defend himself, the deceased was unarmed when he approached the offender. By that time the offender had armed himself with a large, sharp knife and had threatened to kill the deceased if he came near him. Whilst the deceased apparently changed direction suddenly and came at the offender at some speed, the intention to inflict very serious harm by stabbing somebody in the neck with a knife that exceeded 30 centimetres in length was a gross overreaction to any perceived threat the offender felt, that the deceased intended to push him over or knock him over. 3. There was no need for the offender to arm himself with the knife. It is difficult to accept that the situation could not have been defused in other ways before that occurred. Whilst accepting that it was his house, the offender could have gone to his own bedroom or gone out for a walk until David's aggression subsided. 4. Even in the heat of the moment, it is difficult to accept that there were not alternatives open to the offender, either by holding the knife out in front of him blade first or, if he perceived that stabbing was necessary for his own protection, by stabbing him in a less vulnerable place than the neck. I take into account, however, the fact that the offender only stabbed David once. 5. I also accept that the offending was relatively impulsive, and was not planned beyond the fact that the offender had gone into the kitchen to retrieve the knife, and made the threat, before there was any actual threat to himself from David. 6. Whilst the use of a weapon aggravated the offence in terms of s 21A(2)(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the use of a weapon was entirely integral to the excessive self-defence employed by the offender and adds very little to the seriousness of the offence. The offence was, however, aggravated by the fact that it was committed in the home where David was residing and ought to have felt safe, particularly from his own family members. 7. In my opinion, the offence falls just below the mid-range of objective seriousness. Subjective matters 1. The offender did not give evidence at the sentence proceedings. However, he wrote a lengthy letter to the Court which set out details of his background. In addition, reports were tendered from Dr Mark Milic, a clinical and forensic psychologist, and from Dr Richard Furst and Dr Adam Martin, both forensic psychiatrists. 2. The offender was born in December 1947, and is now aged 76 years. 3. The offender was born in Stanmore. His father was a boilermaker and his mother worked as a cleaner. He had two younger brothers and one younger sister. He grew up in Villawood and completed high school to the intermediate level. He played both cricket and soccer. 4. He told the various professionals that his father was a hard man, and his relationship with his father was strained, but the offender tried to please him. Both his parents drank heavily. 5. He commenced an apprenticeship as a plumber at about the age of 16 years, and then served in the army for 18 months. After that time, he worked in welding, plumbing, air-conditioning and scaffolding. 6. He commenced a relationship with Jennifer Cole when he was aged 26. They were together for a period of 17 years. They had three children, Michael, Aimee and David. 7. The offender and his wife grew apart because the offender had to travel long distances for work and was away from home. Despite their separation, they appeared to have remained friendly, and the offender continued to be involved in the care of the children. There were no mental health issues in the offender's family apart from his daughter having bipolar disorder. 8. The offender was a regular drinker but there were no issues from his drinking, apart from what was said to be a DUI charge when he was in his early twenties, in respect of which he apparently served three months in prison. This does not appear on his criminal record. 9. The offender retired when he was 65 years of age. 10. About four or five years before the present events, the offender was diagnosed with leukemia and was treated with chemotherapy, such that he is now in remission. He suffered some peripheral neuropathy from the chemotherapy. The Justice Health records indicate that the neuropathy is causing discomfort and difficulty for the offender with his legs including walking. 11. He also has an enlarged prostate, and raised cholesterol levels for which he is treated with cholesterol lowering medication. 12. None of the health professionals considered that the offender suffered from any mental health disorder. 13. A report from the offender's haematologist discloses that he also suffers from gout, gastro-oesophageal reflux disease and obstructive lung disease. Contrary to what is recorded in Dr Furst's report, that his only regular medication was cholesterol lowering medication, other medical information indicates that the offender has been, and continues to be, on a number of other drugs, one of which at least is designed to assist keeping his leukemia in remission. 14. Twelve references were tendered on behalf of the offender from relatives, work colleagues and friends. They speak with one voice of a good, kind and non-aggressive person who goes out of his way to help other people. All of the referees express great surprise on hearing what the offender did, saying that it was so completely out of character from the person they knew. 15. The offender's criminal record discloses no prior offences. On the offender's own admission, he appears to have been sentenced for a drink driving offence to three months' imprisonment many years ago. I do not have any regard to that conviction. The offender comes before the Court as a person of good character and with no criminal record. Reoffending, rehabilitation and remorse 1. The Crown accepts, and I agree, that the offender is unlikely to reoffend and has excellent prospects of rehabilitation. 2. I accept the evidence of the psychiatrists and the psychologist that the inability of the offender to recall his act of stabbing the deceased is not a failure on his part to take responsibility for what he did, but can be explained psychologically. His involvement in the traumatic event can lead to distorted, inconsistent and patchy memory both around the time and just after the alleged offending. 3. I also accept that the offender is entirely remorseful for his actions. He was remorseful from the outset, and the mental health reports record his remorse also. Oddly enough, in his long letter to the Court, the closest he comes to expressing remorse is in the last two sentences where he says: I miss my son immensely and wish I could turn back time, but I can't. These were not the intentions that what happened was part of my life. Despite that, I consider, as I have said, that he is remorseful. Discount for guilty plea 1. As noted earlier, the offender made an offer to plead guilty to the offence of manslaughter on the basis of excessive self defence on 26 September 2023. The trial was listed to commence on 9 October 2023. However, on 21 December 2022, the offender had made an offer to plead guilty to manslaughter on the basis of an unlawful and dangerous act. That offer was rejected by the Crown. 2. By reason of the acceptance of the later offer to plead, both the Crown and the offender submit that he is entitled to a discount of 25%. 3. Section 25E of the Sentencing Act relevantly provides: (2) Discount where offer later accepted In determining the sentence for an offence, the court is to apply a sentencing discount for the utilitarian value of a guilty plea in accordance with this section if - (a) the offender made an offer recorded in a negotiations document to plead guilty to an offence, and (b) that offence (the different offence) was not the offence the subject of the proceedings when the offer was made, and (c) the offer was refused but accepted by the prosecutor after the offender was committed for trial, and (d) the offender pleaded guilty to the different offence at the first available opportunity able to be obtained by the offender. (3) Discount variation - offer to plead guilty to different offence The discount to be applied by the court is as follows - (a) a reduction of 25% in any sentence that would otherwise have been imposed, if the offer was made before the offender was committed for trial, 1. The offender was originally charged with murder. Manslaughter was not originally charged, but the position would be the same if it had been charged in the alternative. It was a different offence within the meaning of s 25E(2)(b): Black v R (2022) 107 NSWLR 225; [2022] NSWCCA 17 at [36]. The offer was first refused, but subsequently accepted by the prosecutor after the offender was committed for trial. It does not matter that the offer was first made on the basis of an unlawful and dangerous act, but subsequently accepted on the basis of excessive self-defence. Section 25E is concerned with the "offence", not its basis. 2. The offender is entitled to a discount of 25% for his plea. Deterrence 1. There is no doubt that general deterrence is a factor of some weight when sentencing for manslaughter because the crime involves the unlawful taking of a human life: R v Van Oosterum [2004] NSWSC 532 at [32] and R v Bloodsworth; R v Errington (No 5) [2018] NSWSC 79 at [44]. General deterrence is of no lesser importance because the unlawful taking of life arose from a family argument fuelled by the consumption of alcohol. 2. Given the circumstances of this offending, the offender's otherwise good character and the lack of any concern about reoffending, I do not consider that specific deterrence is a matter of significant weight in the sentencing exercise. Age of the offender and hardship in custody 1. Life expectancy statistics were presented to the Court. However, the statistics on average life expectancy must be qualified in the offender's case, particularly because of the leukemia that he has suffered from. I take into account the offender's age and the health conditions from which he suffers. There is no doubt that both of those matters will make custody more onerous for him. Further, Corrective Services records indicate that the offender had asked to be in Special Management Area Placement (SMAP) because of his age, his frailty and his fears in custody. He has been so placed. 2. I can take judicial notice of the ongoing problems from Covid-19 that are still impacting on the conditions prisoners experience. Those conditions include lockdowns and prevention of visitors to inmates. The offender has twice contracted Covid-19 whilst in custody which led to his being isolated for 40 days straight, according to what he told Dr Milic. 3. I consider there should be a significant variation of the statutory ratio under s 44 of the Sentencing Act to take account of the offender's age, health conditions, and his more onerous custodial conditions. In that regard I must take care not to double count those matters when fixing the overall sentence for the offending. Sentence 1. The offender was arrested and went into custody on 28 April 2022. The sentence will commence on that day. 2. In R v Loveridge [2014] NSWCCA 120, the Court (Bathurst CJ, Johnson & R A Hulme JJ) said: [226] There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death (such as the victim's head striking the ground after a blow to the head). To the same effect, there is no range of sentences for manslaughter offences said to have been committed by use of a knife or a rock or some other implement. [227] The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter. Gleeson CJ made this clear in R v Blacklidge (see [193] above), in a passage cited regularly in cases such as R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at 530 [40]. 1. The Crown, quite appropriately, drew my attention to three cases which involved manslaughter by excessive self-defence and the use of a knife, being R v Walcott [2019] NSWSC 443; R v Charters [2020] NSWSC 842 and Lupton v R [2024] NSWCCA 29. There was little consistency in the sentencing in those cases which involved, in any event, very different circumstances from the present offending. They rather bore out what had been said in Loveridge, that there is no range of sentences for manslaughter having occurred in a particular way. 2. The present case is an unusual and very tragic one. What could have possessed the offender, who apparently loved his son, and who on every account was a fine, upstanding member of the community with no history of violence, to grab a lethal knife, threaten to kill his son, and then to do so, all because at the end of an argument the son came running towards him? The offender has not given the Court any insight into his actions, but it seems likely that he cannot explain what he did, as he said to Dr Milic. He is not to be punished for that, but it makes the sentencing exercise a difficult one. 3. The amount of alcohol consumed by the offender that evening, and his estimated blood alcohol reading, (or that of the deceased for that matter), scarcely explains what happened, and I note, in any event, that I cannot have regard to self-induced intoxication as a mitigating factor. Dr Furst opined that the emotions of David, Aimee and the offender were destabilised by the combined effects of acute grief, an argument about a photo, and the effects of alcohol consumption. Whatever the explanation, the outcome is that the offender has lost his son, Michael and Aimee have lost a brother, and no doubt many other people have lost a friend. It did not need to happen, but it is something the offender will have to live with for the rest of his life. 4. Had the offender not offered to plead guilty to manslaughter when he did, I would have sentenced him to 9 years' imprisonment. The discount to which he is entitled by that early offer of a plea means that the overall sentence will be imprisonment for 6 years and 9 months. 5. John Steele – I convict you of the manslaughter of David Steele. I sentence you to a non-parole period of 3 years 6 months commencing on 28 April 2022 and expiring 27 October 2025 with a balance of term of 3 years 3 months expiring 27 January 2029. You are first eligible for parole on 27 October 2025. The offence you committed is defined as a serious violence offence for the purpose of the Crimes (High Risk Offenders) Act 2006 (NSW) and I must warn you that that Act applies to the offence for which you have been convicted. Your lawyers will explain that matter to you. ********** Amendments 19 March 2024 - Typographical error in paras [1] and [5]. 20 March 2024 - Typo in para [19] 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: 20 March 2024