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Court of Criminal Appeal 17 November 2017

Merrick v R

[2017] NSWCCA 264

Homicide
CRIME MANSLAUGHTER CONVICTION APPEAL MANSLAUGHTER SENTENCE APPEAL UTILITARIAN DISCOUNT

Citation: Merrick v R [2017] NSWCCA 264
Court: NSW Court of Criminal Appeal
Date: 17 November 2017
Judges: Gleeson JA, Beech-Jones J, Fagan J

Background

The appellant was tried before a jury in Newcastle in March 2016 on a charge of murder. The jury returned a verdict of not guilty of murder but guilty of manslaughter. The offence arose from a physical altercation in a shopping centre car park at East Maitland on the evening of 7 December 2013, during which the deceased sustained a severe head injury after falling to the ground. She died at John Hunter Hospital two weeks later from brain death caused by a fracture to the base of her skull and a catastrophic subdural haemorrhage.

The appellant was sentenced by Wilson J to 11 years imprisonment with a non-parole period of 8 years and 3 months. Her Honour described the offence as "a particularly egregious example of manslaughter."

The appellant sought leave to appeal against both conviction and sentence. His conviction appeal centred on the evidence of an eyewitness who observed the assault, and his sentence appeal challenged several factual findings made at sentence, the refusal of a utilitarian discount for an earlier conditional plea offer, and the overall length of the sentence.

  • Whether the manslaughter verdict was unreasonable and unsupported by the evidence, particularly regarding whether a reasonable person would have appreciated that the appellant's act exposed the deceased to a risk of serious injury
  • Whether the sentencing judge made factual findings that were unsustainable on the evidence
  • Whether a utilitarian discount for a guilty plea was available where the appellant had made a conditional plea offer that was rejected by the prosecution, and where the appellant's case at trial and on appeal was inconsistent with any such plea
  • Whether the sentencing judge erred in finding that the appellant had not demonstrated remorse
  • Whether the sentence of 11 years imprisonment was manifestly excessive

Decision

Conviction appeal (Ground 3): The appellant did not contest that the evidence supported findings of deliberate, unlawful assault causing death. His sole argument was that the jury could not reasonably have concluded, beyond reasonable doubt, that a reasonable person in his position would have appreciated that the contact exposed the deceased to a risk of serious injury. The Court rejected this, upholding the verdict as one that was reasonably open on the totality of the evidence, including the eyewitness account of the assault and the nature of the fatal injuries sustained.

Factual findings at sentence (Ground 1): The appellant challenged several incidental findings, including that he had been enraged, that he had sought to minimise his conduct, and that he had misrepresented an earlier incident. The Court found each of these findings was well open on the evidence. More fundamentally, the Court upheld the sentencing judge's finding about the nature and force of the blow, the rejection of remorse, and the refusal of any plea discount.

Plea offer discount: The appellant had made a conditional offer to plead guilty prior to trial, subject to agreed facts that were never particularised. The Crown rejected the offer. The Court held that no utilitarian discount was available in these circumstances. The offer was not made on a sufficiently certain factual basis, and the appellant's conduct at trial and on appeal, where he maintained an account inconsistent with any genuine guilty plea, was irreconcilable with a claim of genuine wilingness to plead. The Court found no error in the sentencing judge's reasoning on this point.

Remorse and manifest excess (Grounds 1 and 2): The Court confirmed that the sentencing judge was correct to find no demonstrated remorse. The appellant continued to deny the essential nature of his conduct throughout the proceedings, which precluded any finding of genuine remorse. With all challenged findings upheld, the Court also declined to disturb the sentence as manifestly excessive.

Orders Made

  • Leave granted to appeal against conviction on Ground 3 (involving a question of fact) and against sentence
  • Both the conviction appeal and the sentence appeal dismissed

Key Takeaways

  • A conviction for manslaughter requires proof beyond reasonable doubt that a reasonable person in the accused's position would have appreciated that the act exposed another person to a risk of serious injury; the Court of Criminal Appeal confirmed this element was reasonably available to the jury on the evidence in this case.
  • Where a conditional plea offer is not made on a sufficiently particularised factual basis, and is followed by a trial at which the accused runs a case inconsistent with any guilty plea, no utilitarian discount for the offer is available at sentence.
  • A finding of remorse is precluded where an offender continues to deny the essential nature of their conduct; the sentencing court found no genuine remorse, and the Court of Criminal Appeal upheld that conclusion.
  • In dismissing the sentence appeal, the Court declined to disturb a term of 11 years imprisonment (non-parole period 8 years and 3 months) for manslaughter described as "a particularly egregious example," where all challenged factual findings were sustained.
  • Incidental factual findings at sentence, even if individually contestable, will not invalidate the overall sentencing assessment unless they bear materially on the conclusions reached about objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 24 (maximum sentence for manslaughter)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Wilson v The Queen (1992) 174 CLR 313; [1992] HCA 31
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Sharma (2002) 54 NSWLR 300; [2002] NSWCCA 142
- R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
- R v Johnson [2003] NSWCCA 129
- R v Oinonen [1999] NSWCCA 310
- R v Pennisi [2001] NSWCCA 326
- R v Stambolis [2006] NSWCCA 56; 160 A Crim R 510
- R v Merrick (No 5) [2016] NSWSC 661