Defendant’s Perception Is Crucial When Assessing Manslaughter Based on Excessive Self-Defence

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By Paul Gregoire and Ugur Nedim

During Paul Newburn’s 16 December 2020 sentencing hearing, it was an accepted fact that in having fatally stabbed Glen Smith in the Lake Macquarie suburb of Bolton Point in January the year prior, the offender had the intention of causing grievous bodily harm rather than death.

Newburn and his partner Lisa Walker were staying at a Leumeah Place house belonging to Ronald Stewart at the time the crime was committed in early 2019.

On the evening of 20 January, Walker said she wanted to leave Newburn. The pair argued. She left without her belongings because he refused to let her have them, and she went to a nearby phonebooth on Threlkeld Drive, where Newburn followed her, and a heated argument ensued.

Across the road from the public phone, Michelle Bell was on the veranda of the home belonging to her fiancé Glen Smith. She called out for Newburn to leave Walker alone. Then Smith appeared on the roadside, telling Newburn to “fuck off”, whilst he and Bell took Walker inside their house.

Newburn then appeared at Smith’s residence an hour later. Smith threatened to “bash him”. A neighbour called NSW police at around 10 pm, and Newburn left. Walker then asked Bell to accompany her back to the Stewart residence to obtain her belongings, and Smith went with them.

Stewart answered the door to Walker and declined her entry. Newburn then appeared and refused to hand over her belongings. So, Smith, who’d made himself discreet, walked over to the door holding a golf club with a missing head, and began thrusting it through the screen door of the house.

After the front door was closed, Smith bashed on the house and smashed some pot plants. Stewart then took a weapon, consisting of a 1.5-metre-long pole with a knife taped to its end and placed it by the door, while Smith could be heard arguing aggressively with a nearby neighbour outside.

Newburn subsequently appeared out the front carrying the makeshift spear. He jabbed it at Smith, who responded with a thrust from his club. Newburn then stabbed Smith in the thigh. The injured man tried to hit the other, and, in dodging this, Newburn speared Smith through the heart.

Excessive self-defence

The offender was charged with murder, as well as the alternate lesser charge of manslaughter.

On 4 September 2019, Newburn pleaded guilty to manslaughter on the basis of excessive self-defence, contrary to section 18 of the Crimes Act 1900 (NSW). This offence carries a maximum penalty of 25 years inside.

During the sentencing proceedings in the NSW Supreme Court, Justice Helen Wilson asserted that the crime involved “an objectively grave example of manslaughter by excessive self-defence” as, at the time Newburn left the Stewart house to confront Smith out the front, he had other choices, such as staying inside.

Her Honour found that due to the alternatives that did exist, the moral culpability for the offence was high. And she went on to assess the objective seriousness of the crime as “a little above the mid-range”.

The justice also found that Newburn’s dependence on ice and heroin, his undiagnosed childhood disorders of ADHD and Tourette’s, along with his having been sexually abused as a teenager, all “contributed to emotional deficits that likely made him more sensitive to real or perceived threats”.

Justice Wilson sentenced Newburn to 9 years imprisonment on 17 December 2020, with non-parole set at 5 years and 9 months. And this sentence reflected a 25 percent discount due to the utilitarian value of his early-stage guilty plea.

Issues on appeal

Newburn went on to appeal his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 15 June this year. He did so based on the ground that the sentencing judge made an error in the assessment of the seriousness of the offence, as she failed to consider his perception of the threat he faced.

The offender outlined on appeal that what should have been considered is “the single act of stabbing”. This involved Smith having just attempted to strike Newburn with his weapon, whilst he was showing no signs of his aggression having abated after having been stabbed in the thigh.

As for the Crown, it submitted that Newburn’s actions had “significantly parted from what would have been a reasonable response”. And the prosecution added that it was erroneous to assert that the considerations should only focus on the “immediately preceding circumstances”.

The authorities

The panel of three appeals court justices set out six points on manslaughter taken from the authorities, that being the 2015 NSWCCA case Smith versus R, as well as 2019’s Patel versus R.

The first point was that manslaughter base on excessive self-defence implies that an offender perceived their actions necessary, and following on from this, what must be identified is the offender’s perception of the circumstances, and whether they believed the conduct was warranted.

The third point is that the offender’s perception is relevant in determining whether they felt their action was necessary to defend themselves, and the fourth is that this perception is also applicable to whether their conduct be assessed as reasonable.

These questions should be considered in accordance with the offender’s perception, and not with the objective reasonableness, and this also raises considerations of intoxication. 

And lastly, 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 holds no relevance to assessing the gravity of offending. 

Court deliberations

“In our view, the learned sentencing judge fell into error in her consideration of the objective criminality of the conduct of the applicant,” outlined NSWCCA Justices Mark Leeming, Peter Garling and Julia Lonergan.

“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,” their Honours continued, adding that “by contrast” Justice Wilson had considered those events integral to her assessment.

In line with the authorities, the justices found that on the night of the crime, Newburn was inside Stewart’s house with Smith out the front brandishing a golf club. And at that point, the offender was “in shock”, fearing for his own life and that of Stewart’s.

So, “it was in that state of mind” that the offender left the house, and with his heightened perception of the threat due to his “emotional deficits” that Newburn fatally stabbed Smith, who was actually attacking him as he did so, in a confrontation described by a witness as “tit-for-tat”.

And as Newburn had made clear it was his intention to cause grievous bodily harm, not death, their Honours found that it was not open for the sentencing judge to find he’d “very significantly exceeded a reasonable response”.

In finding that the ground of appeal was made out, the justices also acknowledged that the authority on the assessment of objective seriousness, the 2006 NSWCCA case Mulato versus R, recognises that this assessment is traditionally the role of the sentencing judge.

A marked reduction in time

On resentencing, it was necessary for their Honours to consider “the degree to which the response of the applicant to the circumstances as he perceived them to be exceeded that which was reasonable”.

This led to an assessment of the offence on 29 June this year, as being at the mid-range of objective seriousness. And in considering the 25 year maximum penalty, the justices settled upon a new sentence of 10 years imprisonment, with a non-parole period of 6 years.

Yet, after a 25 percent discount was applied in relation to his early guilty plea, Newburn is now facing a prison term of 7 years and 6 months in total, with non-parole set at 4 years and 6 months.


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