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Court of Criminal Appeal 11 September 2015

Robertson v R

[2015] NSWCCA 251

Homicide
APPEAL SENTENCING MANSLAUGHTER USE OF COMPARABLE CASES SENTENCING MANSLAUGHTER

Citation: Robertson v R [2015] NSWCCA 251
Court: Court of Criminal Appeal, NSW
Date: 11 September 2015
Judges: Basten JA; Adams J; R A Hulme J

Background

The appellant pleaded guilty to manslaughter arising from a joint enterprise in which his co-offender stabbed and killed a young man at an automotive workshop in Minchinbury. The appellant drove the co-offender from the Central Coast to the scene and waited in the car. The agreed facts established that the enterprise was intended to "rough up" a person for payment, though disputed elements remained about the appellant's precise role and knowledge.

The appellant was sentenced in the Supreme Court to 10 years and 8 months imprisonment with a non-parole period of 8 years. A 15% discount had been applied for the utilitarian value of the guilty plea, placing the notional starting point at approximately 12 years and 6 months. The sentencing judge assessed the objective seriousness of the offending as falling in the mid-range for manslaughter.

The appellant sought leave to appeal on two grounds: first, that the sentence was manifestly excessive; and second, that the sentencing judge erred by treating the actual or threatened use of violence as an aggravating circumstance, in circumstances where violence is an element of the offence.

  • Whether the sentencing judge impermissibly double-counted violence as an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), given that violence is often an element of manslaughter.
  • Whether the sentence of 10 years and 8 months imprisonment was manifestly excessive.
  • What role comparable cases and sentencing statistics should play in establishing manifest excess on appeal, including whether cases not relied on before the sentencing judge can be relied on for that purpose on appeal.

Decision

Ground 2: Violence as an aggravating factor

The Court examined a passage in the sentencing judge's reasons that identified the actual or threatened use of violence as an aggravating factor under s 21A(2)(b). The Court acknowledged that s 21A(2) expressly prohibits treating an element of the offence being sentenced as an aggravating factor, because doing so risks counting the same conduct twice. However, the Court noted that violence is not a universal element of manslaughter; it does not arise, for instance, in cases of manslaughter by criminal negligence.

The Court identified two plausible readings of the impugned passage. One reading was that the judge raised a potential aggravating factor only to then dismiss it, noting in the very next sentence that the evidence did not establish the appellant's awareness of the weapon. The other reading was that the judge was legitimately noting that this was a case of intentional harm rather than negligence, which is a permissible consideration. The Court declined to infer impermissible double-counting from the ambiguous passage, particularly given there was no challenge to the judge's mid-range assessment of objective seriousness. Ground 2 was rejected.

R A Hulme J added that an experienced judge should not lightly be taken to have committed an error with double-counting under s 21A, given the attention that issue had received since the provision's introduction in 2003. His Honour also noted that evidence of violence beyond the fatal stabbing itself provided an independent basis for referring to violence in the sentencing reasons.

Ground 1: Manifest excess

The Court examined three comparable manslaughter cases involving joint enterprises put forward by the appellant, each of which had resulted in lesser sentences. The Court noted, however, that in each of those cases the offender's culpability was said to be higher in at least some respects. Basten JA engaged with the broader question of how comparable cases function in a manifest excess argument, drawing on the High Court's caution in Barbaro and Hili about the limited role of sentencing ranges and the importance of individualised sentencing. The Court was not persuaded that the sentence fell outside the available range for this type of offending, and ground 1 was also rejected.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must not treat as an aggravating factor something that is already an element of the offence being sentenced, as this risks impermissible double-counting.
  • Not every manslaughter involves a threat or use of violence (manslaughter by criminal negligence being one example), so a reference to violence in sentencing reasons for a manslaughter arising from intentional harm may be a legitimate observation about the character of the particular offending rather than an error.
  • Ambiguous sentencing passages will not readily be construed as disclosing error where the impugned matter did not affect the unchallenged assessment of objective seriousness and the judge was experienced.
  • In dismissing the manifest excess ground, the Court reiterated that comparable cases perform a limited function on appeal: they inform but do not determine whether a sentence is excessive, consistent with the High Court's approach in Barbaro and Hili.
  • Cases not relied on before the sentencing judge may still be raised on appeal in support of a manifest excess argument, though their utility depends on the degree of genuine comparability.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Barnes v R [2014] NSWCCA 224
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Elyard v R [2006] NSWCCA 43; 45 MVR 402
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Ibrahim v R [2009] NSWCCA 15
- Shedden v R [2013] NSWCCA 225
- Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460
- R v Robertson; R v McArthur [2014] NSWSC 1401 (the sentencing judgment)