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Court of Criminal Appeal 15 May 2008

Hopley v R

[2008] NSWCCA 105

Assault & violenceHomicide
SENTENCING SINGLE BLOW CAUSING DEATH TIME IMPRISONMENT WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Hopley v R [2008] NSWCCA 105
Court: NSW Court of Criminal Appeal
Date: 15 May 2008
Judge(s): Beazley JA, Johnson J, McCallum J

Background

The appellant was convicted by jury of the manslaughter of a man outside a Newtown hotel in January 2005. CCTV footage captured the events: following a separate, unprovoked attack on one of the appellant's friends by a member of another group, the appellant walked up to the deceased, who had played no aggressive role at all, and struck him twice. The second blow was heavy and caused the deceased to fall, strike his head on the road, and sustain fatal brain injuries. He died two days later.

The sentencing judge found that the appellant acted out of anger rather than genuine fear, and that the deceased was entirely blameless. The District Court imposed a sentence of five years, comprising a non-parole period of three years (commencing 21 May 2006, expiring 20 May 2009) and an additional term of two years.

The appellant sought leave to appeal against sentence only, contending it was manifestly excessive. No appeal was brought against conviction.

  • Whether the sentencing judge made erroneous findings of fact about the circumstances of the offence following the jury's verdict
  • Whether the sentencing judge erred in the weight given to hardship suffered by the appellant's son as a result of full-time imprisonment
  • Whether, taken together, those alleged errors rendered the sentence manifestly excessive

Decision

The Court of Criminal Appeal rejected both specific grounds of error. On the factual findings, the Court found that the sentencing judge was entitled to determine the facts for sentencing purposes, and did so correctly. In particular, the finding that the appellant acted out of anger rather than self-defence was open on the evidence, including the CCTV footage, and was consistent with the jury's verdict.

On the question of hardship to the appellant's son, the Court acknowledged that the impact of imprisonment on a child is a recognised mitigating consideration in sentencing. However, it confirmed that such hardship, while relevant, does not override the need to reflect the objective seriousness of the offence in the penalty, particularly where the crime involved the unlawful killing of a blameless person in a public place.

The Court observed that single-blow manslaughter cases involving a fatal fall to the road are not uncommon in NSW, and that the circumstances here illustrated the grave consequences of violence in public. General deterrence was a necessary element of the sentence. The objective seriousness of the offence was sufficient to justify full-time imprisonment notwithstanding the appellant's subjective mitigating factors.

The Court held that the sentence was clearly within the proper exercise of sentencing discretion and that no error had been demonstrated. It added that even if error had been established, no different sentence was warranted in law.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge may make independent findings of fact for sentencing purposes following a jury verdict, provided those findings are consistent with the verdict and supported by the evidence.
  • Hardship to an offender's child caused by full-time imprisonment is a relevant sentencing consideration, but it does not displace the requirement to reflect the objective gravity of the offence, especially in cases of unlawful homicide.
  • In dismissing the appeal, the Court reiterated that manslaughter by a single blow causing a fatal head injury from a fall onto a road is a serious form of the offence, particularly where the victim was blameless and the violence occurred in a public place.
  • General deterrence remains a significant sentencing consideration in cases of public violence resulting in death.
  • No error having been demonstrated, the Court also applied the "no different sentence warranted" provision under s 6(3) of the Criminal Appeal Act 1912 as a further basis for dismissing the appeal.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- R v Grenenger [1999] NSWSC 380
- R v Maclurcan [2003] NSWSC 799
- R v O'Hare [2003] NSWSC 652
- R v Ristevski [1999] NSWSC 1248
- R v Hyatt [2000] NSWSC 773
- Savvas v The Queen (1995) 183 CLR 1
- Cheung v The Queen (2001) 209 CLR 1
- House v The King (1936) 55 CLR 499
- R v Khouzame [2000] NSWCCA 505
- R v Merritt (2004) 59 NSWLR 557
- R v Day (1998) 100 A Crim R 275
- R v Gip; R v Ly (2006) 161 A Crim R 173
- R v Edwards (1996) 90 A Crim R 510
- R v Forbes [2005] NSWCCA 337
- R v Blacklidge (NSW Court of Criminal Appeal, 12 December 1995)
- KT v R [2008] NSWCCA 51
- R v Inzitari (NSW Court of Criminal Appeal, 28 March 1985)