AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
15
Court of Criminal Appeal 19 September 2014

R v Wood

[2014] NSWCCA 184

Also reported as (2014) 244 A Crim R 501
Homicide
CRIMINAL LAW APPEAL SENTENCE CROWN APPEAL RESPONDENT APPEAL MANSLAUGHTER

Citation: R v Wood [2014] NSWCCA 184
Court: NSW Court of Criminal Appeal
Date: 19 September 2014
Judges: Price J, Garling J, Bellew J

Background

The respondent pleaded guilty on the first day of trial to manslaughter arising from the death of a 71-year-old woman in Rosebery in May 2010. The respondent had been riding a pushbike along a footpath when he passed the deceased, then deliberately turned back, approached her on foot while swearing aggressively, and shoved her with both hands to her upper chest. She fell backwards, struck her head on the concrete footpath, and died the following day from catastrophic brain injury. The respondent left the scene without rendering assistance.

The attack was entirely unprovoked. The respondent was under the influence of alcohol at the time. He had a prior criminal history and had previously worked as a prison officer with the Department of Corrective Services.

In the District Court, the sentencing judge imposed a head sentence of 6 years 8 months with a non-parole period of 5 years, applying a 5% discount for the utilitarian value of the guilty plea. The Crown appealed on the basis that the sentence was manifestly inadequate and that multiple errors of principle had been made. The respondent also sought leave to appeal against the sentence, arguing special circumstances had been wrongly rejected.

  • Whether the sentencing judge erred by treating sentencing statistics for manslaughter as a constraint or guide, rather than as one of many relevant considerations
  • Whether the sentencing judge erred by failing to expressly address the need for general deterrence, particularly given the unprovoked nature of the attack and the victim's vulnerability
  • Whether the sentencing judge erred by failing to address the need for specific deterrence, given the respondent's lack of remorse and the absence of any finding that reoffending was unlikely
  • Whether the sentencing judge erred by failing to make an express finding, consistent with Veen v The Queen (No 2) (1988) 164 CLR 465, that the respondent's prior criminal record increased the need for retribution, deterrence, and community protection
  • Whether the overall sentence was manifestly inadequate
  • Whether the sentencing judge erred by not finding special circumstances to vary the statutory ratio between head sentence and non-parole period

Decision

Sentencing statistics: The Court found that the sentencing judge had treated the statistical material for manslaughter sentences as constraining or guiding his discretion, rather than simply as one factor to be weighed. This was a legal error. Sentencing statistics do not constrain or guide the sentencing discretion; they provide context only. The Court confirmed the approach in R v McNaughton (2006) 66 NSWLR 566 and Hili v The Queen (2010) 242 CLR 520.

General and specific deterrence: The Court held that the sentencing judge's reasons contained no express consideration of general deterrence, which was a significant omission given the gratuitous and unprovoked nature of the violence and the vulnerability of the elderly victim. The importance of general deterrence in cases of random violence against elderly or vulnerable people in public places was affirmed, with reference to R v Loveridge [2014] NSWCCA 120. Specific deterrence had also been improperly sidelined: the judge had made no finding that the respondent was unlikely to reoffend, and the absence of demonstrated remorse made specific deterrence a weighty factor.

Prior criminal history: The Court found that the sentencing judge had failed to make any specific finding addressing how the respondent's prior record, including a prior offence of similar character, affected the sentence. Under Veen (No 2), a prior record of relevant offending calls for a specific assessment of the increased need for retribution, deterrence, and protection of society. The failure to do so was a further error.

Re-sentencing and respondent's appeal: The Court declined to exercise its residual discretion against intervention. The errors were substantial and the original sentence was manifestly inadequate. On re-sentencing, the Court set an undiscounted starting point of 12 years imprisonment, applied a 5% guilty plea discount, and arrived at a head sentence of 11 years 4 months. The Court found special circumstances, namely the need for a longer period of supervision to address the respondent's alcohol abuse and psychiatric issues, and fixed a non-parole period of 8 years. The respondent's own appeal against the absence of a special circumstances finding was dismissed, as no error had been established in relation to the original judge's exercise of that discretion.

Orders Made

  • Leave granted to the respondent to appeal
  • Respondent's appeal dismissed
  • Crown appeal allowed
  • Sentence imposed in the District Court on 22 November 2013 quashed
  • In lieu thereof, the respondent sentenced to imprisonment for 11 years 4 months, comprising a non-parole period of 8 years commencing 10 November 2011 and expiring 9 November 2019, with a balance of term of 3 years 4 months commencing 10 November 2019 and expiring 9 March 2023
  • Earliest date of eligibility for parole: 9 November 2019

Key Takeaways

  • Sentencing statistics for manslaughter do not constrain or guide the sentencing discretion; treating them as doing so is an error of principle, confirmed by both the High Court and the Court of Criminal Appeal in multiple decisions.
  • Where an offence involves gratuitous, unprovoked violence against an elderly or vulnerable victim in a public place, general deterrence is a significant sentencing consideration, and a failure to expressly address it in the sentencing remarks can constitute appellable error.
  • Under Veen v The Queen (No 2), a prior criminal record of relevant offending requires the sentencing court to make a specific finding about the elevated need for retribution, deterrence, and community protection; the absence of such a finding is an error.
  • A lack of demonstrated remorse, combined with no finding that the offender is unlikely to reoffend, increases the weight to be given to specific deterrence at sentence.
  • Special circumstances can be established on the basis of a need for extended post-release supervision to address alcohol abuse and psychiatric issues, even where a first offender status or protective custody alone might not suffice.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b) (manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against sentence)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Cases
- Veen v The Queen (No 2) [1988] HCA 14; (1987-1988) 164 CLR 465
- R v Loveridge [2014] NSWCCA 120
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- House v The King (1936) 55 CLR 499
- R v Carroll [2010] NSWCCA 55; (2010) 77 NSWLR 45