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Court of Criminal Appeal 7 December 2016

BH v R

[2016] NSWCCA 290

Homicide
CRIMINAL LAW SENTENCE APPEAL MANSLAUGHTER GUILTY PLEA JUVENILE OFFENDER QUESTION OF MOTIVATION FOR OFFENCE

Citation: BH v R [2016] NSWCCA 290
Court: Court of Criminal Appeal, NSW
Date: 7 December 2016
Judge(s): Price J, Button J (with reasons), Fagan J

Background

The applicant, a young man of Maori descent born in June 1996, pleaded guilty in the Children's Court at Parramatta to one count of manslaughter arising from a single fatal punch he delivered to a 60-year-old man in Parramatta Mall on the evening of 26 September 2013. The applicant was 17 years and 3 months old at the time. The deceased fell immediately, and despite the efforts of doctors, paramedics, and hospital staff, he could not be saved.

At sentence in the District Court in March 2015, Judge Baly SC imposed a head sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months. The sentence was calculated from a starting point of 7 years, reduced by 25% for the utilitarian value of the early guilty plea. No order was made under s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW), with the result that the applicant was transferred to an adult gaol after sentence.

The central factual dispute at the sentencing hearing concerned the applicant's motivation for the punch. The sentencing judge found that the deceased had made a racist remark directed at the applicant, and that the applicant struck the deceased out of anger in response to that provocation. This finding formed the core of the appeal to the Court of Criminal Appeal.

  • Whether the sentencing judge made factual findings about the applicant's motivation that were not open on the evidence.
  • Whether the sentence of 5 years and 3 months, with a non-parole period of 3 years and 11 months, was manifestly excessive having regard to the applicant's youth, subjective circumstances, and the objective features of the offence.

Decision

On the motivation finding, the applicant argued that the sentencing judge was not entitled to find that the punch was delivered in response to a racist remark made by the deceased. Button J, delivering the principal judgment, examined the evidence and concluded that the finding was open to the sentencing judge on the material before the court. No error was established on this ground.

On manifest excess, the Court acknowledged the breadth of subjective matters in the applicant's favour. These included his young age at the time of the offence, his difficult upbringing marked by violence, his Maori background, his ADHD and borderline intellectual disability, his early guilty plea, and the sentencing judge's finding of genuine remorse. The Court also recognised that the sentence carried real punitive weight, including more than two years of adult incarceration for an offence committed when the applicant was barely 17.

Weighed against those matters were the applicant's prior criminal history, including offences of violence, his status on conditional liberty at the time of the offence, and the gravity of the outcome: a human life lost to a single act of anger. The Court was not persuaded that a head sentence of 5 years and 3 months with a non-parole period of 3 years and 11 months was manifestly unreasonable or plainly unjust.

The Court also declined to interfere with the sentencing judge's evaluative assessment of objective seriousness or her decision not to find special circumstances. Both questions involved the exercise of evaluative judgment that appellate courts are slow to disturb.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that appellate courts will rarely interfere with a sentencing judge's evaluative assessment of the objective seriousness of an offence, particularly for an offence as varied in character as manslaughter.
  • A factual finding about an offender's motivation will withstand appellate challenge where it is reasonably open on the evidence placed before the sentencing judge, even where that finding is contested.
  • Significant subjective mitigation, including youth, disadvantaged upbringing, cognitive impairment, early guilty plea, and genuine remorse, does not automatically render a sentence manifestly excessive when weighed against a serious offence, a violent criminal record, and breach of conditional liberty.
  • Under s 19(3) of the Children (Criminal Proceedings) Act 1987 (NSW), a sentencing court retains discretion over whether a juvenile offender convicted of a serious children's indictable offence is detained in a juvenile or adult facility; declining to make such an order was not treated as an independent sentencing error on the facts here.
  • The absence of a special circumstances finding, which would have altered the statutory ratio between the non-parole period and the head sentence, was upheld as within the sentencing judge's legitimate discretion.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 19(3)

Cases
- Clarke v R [2015] NSWCCA 232
- Mulato v The Queen [2006] NSWCCA 282
- Turnbull v Chief Executive of the Office of Environment and Heritage (2015) 213 LGERA 220; [2015] NSWCCA 278
- R v Hoerler (2004) 147 A Crim R 520; [2004] NSWCCA 184
- R v Loveridge [2014] NSWCCA 120