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Court of Criminal Appeal 11 June 2010

HUTCHISON v R

[2010] NSWCCA 122

Homicide
CRIMINAL LAW APPEAL AGAINST STENTENCE GUILTY PLEA TO MANSLAUGHTER WHETHER SENTENCE MANIFESTLY EXCESSIVE.

Citation: Hutchison v R [2010] NSWCCA 122
Court: NSW Court of Criminal Appeal
Date: 11 June 2010
Judge(s): Beazley JA, Hulme RS J, Latham J

Background

The applicant pleaded guilty to manslaughter in the District Court following an incident at a hotel in Wallerawang. After a night of heavy drinking, the applicant struck the deceased once, causing him to fall and fracture his skull. The deceased died the following morning from subdural haemorrhaging caused by the fall.

The sentencing judge, Blackmore SC DCJ, imposed a non-parole period of five years and six months with a balance of term of two years. The judge characterised the applicant's criminal history as "extraordinary" and found his prospects of rehabilitation were "virtually non-existent."

The applicant sought leave to appeal, arguing the judge had misstated the severity of his prior record, wrongly treated that record as an aggravating factor, erred in assessing rehabilitation prospects, and imposed a sentence that was manifestly excessive.

  • Whether the sentencing judge overstated the applicant's criminal history by attributing nearly twice the actual number of prior assault convictions (12 instead of 7)
  • Whether that overstatement improperly influenced the sentence as an aggravating factor
  • Whether the judge erred in finding the applicant's prospects of rehabilitation were "virtually non-existent"
  • Whether the sentence was manifestly excessive when compared with comparable manslaughter cases

Decision

The Court was divided on whether the errors in the sentencing judgment actually infected the sentence imposed. Hulme J found that the misstatement of the criminal record (attributing 12 assault convictions rather than the 7 that actually existed) was substantial and had, on the balance of the judge's own language, likely influenced the sentence. He also found that the description of the assault as "extreme" and characterised by "ferocity" was not justified where only one effective blow was struck and the deceased had a blood alcohol level of 0.184. Latham J disagreed that these errors necessarily produced an unjust sentence, though all three judges agreed the appeal should be dismissed.

Despite finding those errors, the Court concluded no lesser sentence should have been imposed. Hulme J placed significant weight on the applicant's known disposition to become violent when intoxicated, combined with his deliberate choice to drink heavily on the night in question. The judge's observation that the offence was entirely predictable given the applicant's history was characterised by Hulme J as fully justified. The Court treated the applicant's self-created state of dangerous intoxication as a substantial contributor to the criminality involved.

On the manifest excess ground, Latham J reviewed 12 comparable manslaughter cases involving single or multiple blows without weapons and without intent to kill or cause serious injury. She found the applicant's comparison with those cases was flawed because it focused only on the objective features of the offending and ignored the subjective circumstances of each offender. The sentence, while toward the top of the range, was not shown to be manifestly excessive.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's substantial misstatement of an offender's prior convictions can constitute a recognisable error capable of influencing the sentence, even where the appeal is ultimately dismissed.
  • In dismissing the appeal, the Court found that an offender's deliberate choice to drink heavily, knowing that intoxication leads to violent behaviour, is itself a form of criminal irresponsibility that bears on the objective seriousness of a resulting manslaughter.
  • Comparing sentences across manslaughter cases requires analysis of both objective and subjective factors in each case; a comparison limited to objective features alone (such as the number of blows) is insufficient to establish manifest excess.
  • A sentence toward the top of the range for a given offence does not, of itself, demonstrate manifest excess for the purposes of a sentence appeal.
  • The Court of Criminal Appeal confirmed that prior custodial sentences that failed to modify an offender's behaviour remain relevant to specific deterrence, provided the criminal record is accurately stated.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- Veen v The Queen (No. 2) (1988) 164 CLR 465
- R v McNaughton (2006) 163 A Crim R 381
- Tidona v R [2005] NSWCCA 410
- R v Aboud [2005] NSWCCA 251
- R v Groat [2001] NSWCCA 452
- R v Fernando [2002] NSWCCA 28
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Mulato [2006] NSWCCA 282
- R v Forbes [2005] NSWCCA 377; 160 A Crim R 1
- R v Troja, NSWCCA, 16 July 1991
- R v Morabito (1992) 62 A Crim R 82
- R v Maguire, NSWCCA, 30 August 1995
- R v Hopley [2008] NSWCCA 105
- R v Irvine [2008] NSWCCA 273
- R v Greenhalgh [2001] NSWCCA 437
- R v Hamilton [2007] NSWSC 452