The Court held that in sentence appeals under ss 5 and 6 of the Criminal Appeal Act 1912 (NSW), the standard of review for challenged findings of fact is whether the finding was 'reasonably open', not whether it was correct on the correctness standard — but the practical application of this test varies depending on how evaluative the finding is and whether the sentencing judge held any natural advantage over the appellate court; where the issue is a non-evaluative inference drawn entirely from documentary evidence, the margin allowed to the sentencing judge is much reduced. The Court further held that a sentencing judge's reasons must explain the basis for preferring one party's case over the other on a material disputed fact, and that merely stating a conclusion with emphasis markers (such as 'of particular significance') without addressing the opposing submissions constitutes inadequate reasoning amounting to House v The King error. On the substantive sentencing for manslaughter by excessive self-defence, the Court held that anterior conduct of the offender does not form part of the circumstances relevant to assessing the reasonableness of the response under s 421, though it is not necessarily excluded from all aspects of objective seriousness assessment — but such relevance will be rare in excessive self-defence cases.
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