R v Irvine [2008] NSWCCA 273

R v Irvine [2008] NSWCCA 273

The sentencing judge's findings were open on the evidence, including that the offence was well below the mid range of objective seriousness because the respondent believed he was defending himself, was not affected by alcohol, was trying to persuade the deceased to return to his car, reacted instinctively to an unexpected lunge by an intoxicated and abusive deceased, showed concern for the deceased, and the death would almost certainly not have occurred but for an unknown pre-existing arterial abnormality. Given the respondent's strong subjective case and the broad sentencing discretion, the sentence of three years imprisonment to be served by periodic detention was not so inadequate as...

Jurisdiction
Australia
Judgment Date
21 November 2008
Procedural Posture
Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From the District Court
Outcome
Appeal dismissed.
Legal Topics
['manslaughter' 'manifest Inadequacy' 'periodic Detention' 'objective Seriousness' 'general Deterrence' 'self Defence' 'crown Sentence Appeal']
['criminal Law' 'sentencing'] ['manslaughter' 'manifest Inadequacy' 'periodic Detention' 'objective Seriousness' 'general Deterrence' 'self Defence' 'crown Sentence Appeal']

Case Brief

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Procedural Posture

Crown Appeal Against Sentence / Appeal to the New South Wales Court of Criminal Appeal From the District Court

Legal Issues

  1. 1 ['Whether the sentence imposed for manslaughter was manifestly inadequate.' 'Whether the sentencing judge erred in finding the offence well below the mid range of objective seriousness for manslaughter.' 'Whether full-time imprisonment rather than periodic detention was required.' "Whether the sentencing judge gave appropriate weight to general deterrence, retribution, the force of the blow, the deceased's intoxication, the respondent's belief in the need to defend himself, the deceased's conduct, the deceased's pre-existing medical condition, and the respondent's subjective circumstances."]

Ratio Decidendi

The sentencing judge's findings were open on the evidence, including that the offence was well below the mid range of objective seriousness because the respondent believed he was defending himself, was not affected by alcohol, was trying to persuade the deceased to return to his car, reacted instinctively to an unexpected lunge by an intoxicated and abusive deceased, showed concern for the deceased, and the death would almost certainly not have occurred but for an unknown pre-existing arterial abnormality. Given the respondent's strong subjective case and the broad sentencing discretion, the sentence of three years imprisonment to be served by periodic detention was not so inadequate as...

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']