The High Court has dismissed an appeal against a sentencing decision of the New South Wales Court of Criminal Appeal relating to excessive self-defence. The appellant, a drug addict and dealer, was convicted of manslaughter and wounding with intent to cause grievous bodily harm after a shootout with plain clothes police, in which the appellant wounded one office, and another was accidentally shot by the injured officer and mortally wounded. The NSWCCA held that the trial judge erred in finding that the appellant’s mistaken belief that the police officers were robbers was a mitigating factor in sentencing, because that belief was already implicit in the conviction for manslaughter, rather than murder, and in finding that sentences should be served concurrently because each involved distinct consequences and criminality. The NSWCCA raised the sentence from 9 years and 6 months to 16 years and 2 months. Before the High Court the appellant sought to challenge the NSWCCA’s application of the principle in R v De Simoni [1981] HCA 31; that a sentencing judge cannot take into account circumstances of aggravation that would have warranted conviction for a more serious offence (see at [45]ff).

The Court unanimously rejected the appeal. The plurality (Gageler, Nettle and Gordon JJ) held that the challenge to the application of De Simoni was misplaced: the NSWCCA correctly held that the sentencing judge erred in assessing the objective gravity of the offence of manslaughter by contrasting it with the hypothetical gravity of the offence if the appellant had known the victim was a police officer, because if the appellant had known the victim was a police officer and shot him with intent to cause grievous bodily harm, the appellant could not have raised excessive self-defence and would instead have been guilty of murder (see at [56]–[58]). The plurality noted, however, that the NSWCCA was wrong to characterise this comparison as a contravention of the De Simoni principle: that principle ‘has nothing to say about the impropriety of a judge taking into account the absence of a circumstance which, if it were present, would render the subject offence a different offence. The latter is erroneous simply because it is irrelevant to, and likely to distort, the assessment of objective gravity.’ (at [60]). This, however, was not a material error (at [68]). While the plurality expressed doubts about the NSWCCA’s conclusion that it was not open to the sentencing judge to decline to cumulate any part of the sentences (at [61]ff), their Honours agreed that the sentence was manifestly inadequate in light of the gravity of the offence (at [66]), and also agreed with the new sentence imposed by the NSWCCA.

Bell and Keane JJ also dismissed the appeal. Their Honours agreed that the NSWCCA’s adoption of De Simoni was misplaced, but noted that the NSWCCA upheld that ground of appeal because it considered the sentencing judge to have allowed an ‘extraneous or irrelevant consideration’ to affect her Honour’s decision (at [30]). While the sentencing judge’s approach to establishing whether the offence was in the ‘worst’ category of offedning was not assisted by the comparison with the hypothetical offence, it was not a legal error to raise that comparison to reject the prosecutor’s submission (at [34]). Contrary to the appellant’s submissions, the NSWCCA did not find an error in the sentencing judge’s rejection of the ‘worst case’ submission, but rather in her Honour’s use of the hypothesised case, in its conclusion that the sentence was manifestly inadequate (at [35]). Nonetheless, Bell and Keane JJ held that the NSWCCA’s conclusion on manifest inadequacy was plainly correct in light of the seriousness of the offence (at [43]). Their Honours also held that the appellant’s argument that the NSWCCA erred in holding that the sentencing judge was required to partially accumulate the sentences succeeded, ‘to the extent that the Court of Criminal Appeal is to be understood as holding that the nature and seriousness of the wounding offence was such that an appropriate sentence for the manslaughter was not capable of comprehending the criminality involved in the wounding offence’ (at [40]). But because overall success in the appeal still depended on the NSWCCA erring in finding that the sentence itself was manifestly inadequate, this holding did not assist the appellant in the end (at [40]).