Newburn v R [2022] NSWCCA 139

Newburn v R [2022] NSWCCA 139

The sentencing judge erred by treating events leading to the confrontation and the applicant's decision to leave the house as integral to the assessment of objective seriousness, rather than identifying the threat as the applicant perceived it when he inflicted the fatal wound. On the evidence, including the deceased's armed attack, the applicant's fear, and his diminished capacity to consider alternatives, it was not open to find that his response very significantly exceeded a reasonable response or that his moral culpability was high; the offence fell below the mid-range of manslaughter.

Jurisdiction
Australia
Judgment Date
29 June 2022
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal Against Sentence
Outcome
Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant resentenced.
Legal Topics
['manslaughter' 'excessive Self Defence' 'objective Seriousness' 'perceived Threat' 'resentencing']
['criminal Law' 'sentencing'] ['manslaughter' 'excessive Self Defence' 'objective Seriousness' 'perceived Threat' 'resentencing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence and Appeal Against Sentence

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the seriousness of manslaughter by excessive self-defence by failing to have regard to the applicant's perception of the threat at the time of the conduct involving the infliction of death." "Whether the applicant's response very significantly exceeded a reasonable response to the circumstances as he perceived them to be." 'What sentence should be imposed on resentencing.']

Ratio Decidendi

The sentencing judge erred by treating events leading to the confrontation and the applicant's decision to leave the house as integral to the assessment of objective seriousness, rather than identifying the threat as the applicant perceived it when he inflicted the fatal wound. On the evidence, including the deceased's armed attack, the applicant's fear, and his diminished capacity to consider alternatives, it was not open to find that his response very significantly exceeded a reasonable response or that his moral culpability was high; the offence fell below the mid-range of manslaughter.

Court Disposition

Leave to appeal against sentence granted; appeal allowed; original sentence quashed; applicant resentenced.

Orders

  • ['Leave to appeal against sentence granted.' 'Appeal allowed.' 'Sentence imposed on 17 December 2020 is quashed.' '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...