Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Pitts v R [2014] NSWCCA 244 Hearing dates: 29 October 2014 Decision date: 29 October 2014 Before: Hoeben CJ at CL at [1]; R A Hulme J at [2]; Davies J at [41] Decision: 1. Leave to appeal granted. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - manslaughter - excessive self-defence - no real threat of violence - degree to which response was unreasonable was quite extreme - sentence not unreasonable or plainly unjust Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 R v Isaacs (1997) 41 NSWLR 374 R v Loveridge [2014] NSWCCA 120 The Queen v Lavender [2005] HCA 37; 222 CLR 67 Category: Principal judgment Parties: Craig Charles Pitts (Applicant) Regina (Respondent) Representation: Counsel: Mr T Gartelmann (Applicant) Ms N Adams SC with Ms S Palaniappan (Crown) Solicitors: Greg Willis Criminal Defence Lawyer Solicitor for Public Prosecutions File Number(s): 2011/249365 Decision under appeal Citation: [2013] NSWSC 518 Date of Decision: 2013-05-09 00:00:00 Before: Adamson J File Number(s): 2011/249365 Judgment 1HOEBEN CJ at CL: I agree with R A Hulme J. 2R A HULME J: Craig Charles Pitts (the applicant) applies for leave to appeal against a sentence imposed by Adamson J in the Supreme Court of New South Wales on 9 May 2013. The applicant had been tried before a jury on a charge of murder but the jury returned a verdict of guilty to manslaughter. Adamson J imposed a sentence of imprisonment for 10 years with a non-parole period of 7 years and 6 months with effect from 16 September 2012. 3The Notice of Application for Leave to Appeal was filed a short period out of time. At the outset of the hearing today the Crown indicated it did not oppose an extension of time being granted. Accordingly it was. 4The sole ground of appeal is that the sentence is unreasonable or plainly unjust; in other words it is manifestly excessive. The ground of appeal is supported by submissions that the offence was of relatively low objective seriousness and there were favourable findings as to certain subjective features of the applicant. The contention of manifest excess is said to be confirmed by an analysis of sentences imposed in other cases. Facts 5There was no dispute about the findings of fact made by Adamson J. The following summary is derived from her Honour's remarks on sentence. 6The applicant lived in a unit on the fourteenth floor of an apartment block in Redfern. His sister and two nieces arrived in the early hours of 2 August 2011 to stay with him. Later that morning he went out with one of the nieces to purchase groceries. While they were out, a man named Leonard Gow visited the unit. The applicant's sister told him that the applicant was out and suggested that he return later. 7When the applicant returned with his niece he encountered Mr Gow and the deceased, John Marceta, on the ground floor of the apartment building. He understood that the two men wanted to purchase cannabis from him as they had done previously. He told them to come back later. 8The applicant returned to the unit. He and his sister went into a back room to discuss personal matters, leaving the two girls in the lounge room near the front door. There was a knock at the front door. One of the nieces went to the back room to inform the applicant that there was someone at the door. The applicant, who realised that it was probably the deceased and Mr Gow, told her to tell whoever it was that they should come back later. The niece then relayed that message through the front door. 9The deceased kicked in the front door. The two girls screamed with fright and were so scared that they ran to the back room and locked the door. The applicant and his sister heard the noise and came to the front door. The applicant opened the door and called out to the deceased and Mr Gow, who were walking in the direction of the lifts and were already some distance away from the unit, "why did you kick my front door in?" 10The applicant recognised it was the deceased and Mr Gow. He knew that the deceased had been a boxing champion. He went back into the unit and retrieved a knife, returned and followed the deceased and Mr Gow. There was an altercation when they were halfway down the hall, about 14 metres from the applicant's front door. The applicant stabbed the deceased in the chest with the wound penetrating through to the heart. He collapsed and died shortly afterwards. As soon as the applicant realised what he had done he retreated to his unit in a state of shock and dismay. Basis for manslaughter 11Adamson J discussed whether the evidence supported a finding of manslaughter by way of unlawful and dangerous act or murder reduced to manslaughter because there was self-defence which was excessive. She concluded beyond reasonable doubt that the applicant intended to cause grievous bodily harm. She considered that his act of picking up the kitchen knife to have been a deliberate and considered one, albeit when the applicant was angry. In those circumstances she concluded that manslaughter by excessive self-defence was a finding which was consistent both with her own view of the applicant's intention and with the jury's verdict. This entailed her satisfaction that it was reasonably possible that the applicant believed that his conduct was necessary in self-defence or in defence of his sister or his nieces. Her Honour was also satisfied that his conduct was not a reasonable response in the circumstances as he perceived them to be. Seriousness of the offence 12Her Honour recognised that manslaughter produces the greatest variety of circumstances affecting culpability, and so there is a substantial range in the sentences imposed: R v Isaacs (1997) 41 NSWLR 374 at 381; The Queen v Lavender [2005] HCA 37; 222 CLR 67 at [22] (Gleeson CJ, McHugh, Gummow and Hayne JJ). She also recognised that the fundamental touchstone for sentencing in such cases is that there has been an unlawful taking of human life for which the offender is criminally liable: R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep). 13Her Honour also referred to the maximum penalty for manslaughter being 25 years, it being an indication of the relative seriousness of the offence: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ. 14Her Honour said the following about the objective seriousness of the offence: "The deceased died because the offender responded instantaneously to the deceased's act of violence in kicking his front door down. The offender assessed correctly that the deceased was in significantly better physical condition than he was. In a heinous and misguided attempt to redress the physical discrepancy between them, he armed himself with a knife before confronting the deceased in the corridor outside his unit. The offender bore no longstanding animosity or hostility towards the deceased. Nonetheless, he intended to cause the deceased grievous bodily harm. The offender misjudged the threat which the deceased posed to him and his family. By resorting to violence with a dangerous weapon he overreacted, with disastrous and irreversible consequences." 15Adamson J considered that it was an aggravating factor that the offender used a knife but in mitigation was the fact that the offence was not part of a planned or organised criminal activity; the applicant was provoked by the deceased's act of kicking in his front door, the effect of the provocation being heightened because the deceased knew that the applicant's sister and young nieces were inside the flat. Personal circumstances of the applicant 16The judge was satisfied that the applicant had a "very troubled childhood". He was the youngest of six children. He did not know his biological father. His mother was unable to care for him and did not have the emotional or financial resources to bring up six children on her own. From a young age the applicant spent considerable periods either with other family members with whom he sought refuge or without any home at all. 17The applicant had attended many schools and had substantial difficulties in learning. He was often victimised by his classmates and, as a result, frequently refused to attend school. As a child he suffered from seizures due to epilepsy, which remained undiagnosed for several years. 18From his early teens the applicant suffered from depression and low self-esteem and often felt hopeless about his life. As a result he turned to alcohol and drugs from the age of about 12. He drank heavily between the ages of 12 and 16 although he had not been a regular drinker as an adult. He began using heroin when he was 12 and became addicted. 19In April 2010, at the age of 27, the applicant was referred to Dr Byrne for treatment of his addiction. Dr Byrne was engaged in a medical practice which specialised in the treatment of drug and alcohol issues. The applicant began treatment with methadone and made what Dr Byrne described as "excellent progress". He attended the practice regularly for medication, counselling and random supervised urine testing. Dr Byrne's report of 30 November 2012 included that the applicant was well presented, polite to staff, and invariably alert, oriented and in good spirits. He was rarely, if ever, seen to be intoxicated. 20Her Honour noted that a test taken of the applicant's blood shortly after the offence did not indicate the presence of any intoxicating substances that would have affected either his self-control or his behaviour. 21A number of statutory mitigating factors (s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) were taken into account in the applicant's favour. The applicant had no significant record of previous convictions; he was unlikely to reoffend; he had good prospects of rehabilitation; and he had shown remorse. 22Her Honour considered a submission that there were special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act for reducing the proportion of the sentence represented by the non-parole period. However her Honour concluded that a parole period in accordance with the statutory ratio would be sufficient to deal with the need for the applicant to be supervised in the community following his release on parole. There is no challenge to that finding. Submissions and consideration 23It was submitted that the objective seriousness of the offence was low relative to the broad range of conduct comprising manslaughter offences. The judge did not expressly identify where within the range of objective seriousness the offence at hand fell. However, it was submitted that the findings made by her Honour pointed to a relatively low degree of objective seriousness. Specifically identified were: * The applicant acted in defence of himself or his sisters and nieces but misjudged the threat the deceased posed. * The applicant was provoked by the deceased's violence and the effect was heightened by the fact that the deceased knew of the presence of the applicant's sister and two young nieces in the apartment. * The applicant armed himself in an attempt to redress the physical discrepancy between himself and the deceased. * The applicant's response was instantaneous but it was an overreaction in resorting to the use of a weapon. * The applicant did not intend to kill but "only" to inflict grievous bodily harm. 24It was also submitted that the judge's favourable findings regarding the applicant's subjective circumstances warranted significant mitigation. 25It was submitted that, when all those matters were taken into account, this Court should find that the sentence exceeded the boundaries of a reasonable exercise of discretion. 26Mr Gartelmann, counsel for the applicant, acknowledged with his usual candour the limitations inherent in drawing comparisons with sentences imposed in other cases. Amongst other authorities, he cited Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 where, in the joint judgment of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, the proper approach to a consideration of comparative cases was described thus: "[54] In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'. [55] As the plurality said in Wong: '[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed tells the judge who is about to pass sentence on an offender very little that is useful if the sentencing judge is not also told why those sentences were fixed as they were.'" (Footnotes omitted) 27Whilst also acknowledging that there is no hierarchy in relation to the relative seriousness of the various categories of manslaughter offences (R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at [27]- [29]), counsel provided schedules of a large number of cases (44) involving manslaughter offences committed by excessive self-defence in a wide range of circumstances. The schedules comprised cases considered in this Court as well as first instance sentencing judgments going back to 2002 (as the Crown observed, the partial defence to murder of excessive self-defence came into force in 2001). The salient features of each case were usefully and comprehensively summarised. It was submitted that an examination of these cases tended to confirm that the sentence imposed in the applicant's case exceeded the boundaries of a reasonable sentencing discretion. 28The learned Crown Advocate assisted the Court with reference to a number of authorities concerning the use of comparative cases. Most pertinently, she referred to the recent decision in R v Loveridge [2014] NSWCCA 120 where the Court (Bathurst CJ, Johnson J and myself) said: "[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. ..." 29I do not understand Mr Gartelmann's submissions to transgress what was said in R v Loveridge. The key to his analysis was that an examination of the facts, circumstances and outcomes in a large selection of other cases illuminated "unifying principles" which were informative in assessing the sentence in the applicant's case. More specifically, it was submitted that the cases provide something of a yardstick against which the applicant's sentence may be considered. 30I have carefully considered the cases to which Mr Gartelmann has referred and have derived from them the following. 31First, the survey is extensive; it encompasses all excessive self-defence sentencing exercises that have occurred in the past 12 years that counsel was able to identify. 32Secondly, the survey confirms the extremely wide range of circumstances in which manslaughter by way of excessive self-defence is encountered. 33Thirdly, the cases which involve juvenile or youthful offenders are of very little, if any, utility given the special considerations that apply in such cases. 34Fourthly, a few of the first instance sentencing decisions seem (based upon the summaries provided) to be remarkably lenient; arguably inadequate. 35Fifthly, quite a number of the cases involve offenders whose sentences were reduced on account of their pleas of, or offers to plead, guilty. That is a factor absent from the applicant's case. 36Sixthly, and most pertinently, many of the cases involve offences committed in the face of a real threat of violence by the deceased. In the present case, the door of the applicant's apartment had been kicked in but then the deceased and his companion were in the process of leaving. It was the applicant who engaged them in a confrontation by calling out to them, then retreating into his unit to get a knife, and then confronting them again. He need not have confronted them at all. This is a significant feature that distinguishes the present case from many in the schedules. 37Finally, this broad review of sentences passed in a large number of excessive self-defence manslaughter cases does not leave me with an impression of manifest excess. 38The learned judge found that the applicant had an intention to inflict grievous bodily harm. To reconcile that finding (which is not challenged) with the jury's verdict, it followed that there must have been a perception by the applicant that it was necessary to do what he did but his conduct was not a reasonable response. In my view, and consistent with the view taken at first instance, the degree to which the applicant's response was unreasonable was quite extreme. Her Honour described the applicant's actions as "heinous" and "misguided". That assessment was open to be made. 39I acknowledge the favourable findings the judge made as to the applicant's subjective case and note that it is not suggested that there was any error in her Honour overlooking anything of relevance in that respect. But in the end I am not persuaded that the sentence imposed was one that can be characterised as unreasonable or plainly unjust. Orders 40I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed. 41DAVIES J: I agree with R A Hulme J. ********** Amendments 29 October 2014 - Typo Amended paragraphs: [3] 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: 29 October 2014