Citation: Regina v Daniella Dawes [2004] NSWCCA 363
Court: New South Wales Court of Criminal Appeal
Date: 5 November 2004
Judge(s): Dunford J, Barr J, Hoeben J
Background
The respondent was a mother who, on 4 August 2003, suffocated her 10-year-old autistic son during a morning struggle to prepare him for school. She immediately attempted to take her own life by slashing her wrists and very nearly succeeded. When police attended, she made full admissions. She pleaded guilty to manslaughter at the earliest available opportunity, on the basis of substantial impairment of mental capacity arising from a major depressive illness, under s 23A of the Crimes Act 1900.
The circumstances preceding the offence were exceptional. The respondent had spent years fighting to obtain appropriate services for her severely autistic son, only to be told that delays in intervention had jeopardised his development. In the months before the offence, she endured her husband's abuse and threatened suicide, the sexual abuse of her daughter by her stepfather, her daughter's self-harm, the death of her father, family disputes over his estate, and the loss of what little respite care she had previously received. All of this occurred while she was being treated for depression and had lost nearly 10 kilograms in a single month. Four psychiatrists, including one retained by the Crown, agreed she was suffering a major depressive illness at the time of the offence.
The District Court at Parramatta sentenced the respondent to a five-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions including supervision by the Probation and Parole Service and ongoing psychiatric treatment. The Director of Public Prosecutions appealed, arguing the bond was manifestly inadequate and that a custodial sentence was required.
Legal Issues
- Whether the sentencing judge erred by imposing a non-custodial s 9 bond rather than a custodial sentence for manslaughter.
- Whether, even if error were established, the Court of Criminal Appeal should exercise its discretion to dismiss the Crown appeal in the circumstances.
- What weight should be given to: the principle of double jeopardy; the Crown's failure at first instance to seek a custodial sentence; and the respondent's rehabilitation since the bond was imposed.
Decision
The Court was not unanimous on the question of error. Dunford J and Hoeben J held that the sentencing judge had erred in not imposing a custodial sentence, finding that the objective gravity of manslaughter ordinarily requires a term of imprisonment. Barr J disagreed, concluding that the circumstances were so exceptional that a non-custodial sentence was within the sentencing judge's proper discretion, and that no error had been established.
Critically, all three judges agreed that the Crown appeal should nonetheless be dismissed, though the majority reached that conclusion through the exercise of the Court's discretion rather than by finding no error. Dunford J and Hoeben J identified three factors that together warranted dismissal even where error had been found: the principle of double jeopardy, which operates as a significant constraint on Crown appeals; the Crown's own conduct at first instance, where the prosecuting Deputy Senior Crown Prosecutor had expressly submitted that a non-custodial alternative would be appropriate; and the respondent's meaningful progress in rehabilitation since the bond was imposed.
The Crown's failure to seek imprisonment at first instance weighed heavily. The Court observed that it would be fundamentally unfair to expose the respondent to the risk of a custodial sentence on appeal when the Crown itself had not pressed for one before the sentencing judge. The respondent's demonstrated rehabilitation and ongoing psychiatric treatment under the bond's conditions provided further reason not to intervene.
Barr J's reasons independently supported dismissal on the basis that the sentencing judge was correct. His Honour pointed to the extraordinary accumulation of personal tragedy the respondent faced, the unanimous psychiatric evidence of her substantially impaired mental state, and the fact that the Crown's own representative had left the door open to a non-custodial outcome. In Barr J's view, the sentencing judge's conclusion that the case was sufficiently exceptional to justify a bond was well within the available discretion.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that even where a majority finds error in a sentencing decision, the Court retains a discretion to decline to intervene, particularly in Crown appeals.
- The principle of double jeopardy operates as a meaningful constraint on Crown appeals: the prospect of re-sentencing to imprisonment on appeal, when a person has already been dealt with by a bond, is a weighty consideration against intervention.
- The Crown's own conduct at first instance is relevant to the exercise of that discretion. Where the prosecuting representative did not seek imprisonment before the sentencing judge, the appellate court may treat this as a significant factor against allowing an appeal that seeks exactly that outcome.
- A respondent's demonstrated rehabilitation and compliance with bond conditions between the original sentence and the hearing of a Crown appeal are matters the Court of Criminal Appeal may take into account when deciding whether to re-sentence.
- Under s 23A of the Crimes Act 1900, where a plea of guilty to manslaughter on the basis of substantial impairment is accepted and all psychiatric evidence confirms a major depressive illness substantially impairing the offender's capacity, the sentencing discretion is wide enough in truly exceptional circumstances to permit a non-custodial outcome, at least where the Crown itself did not oppose one at first instance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 23A (substantial impairment by abnormality of mind)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against sentence)
Cases:
- R v Allpass (1993) 72 A Crim R 561 (principles governing Crown sentence appeals, applied)
- Everett v The Queen (1994) 181 CLR 295
- Malvaso v The Queen (1989) 168 CLR 227
- R v Edwards (1996) 90 A Crim R 510
- R v Troja (CCA, unreported, 6 July 1991)
- R v Li [2000] NSWSC 1088
- R v Cooper [2001] NSWSC 769
- R v Previtera (1997) 94 A Crim R 76
- R v Blacklidge (CCA, 12 December 1995)
- R v Albury-Thompson (1998) 16 CRNZ 79
- R v MA [2004] NSWCCA 92
- R v Newman [2004] NSWCCA 102
- R v Palu (2002) 134 A Crim R 174
- Various other cases referred to in the judgment