AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 14 December 2017

R v Chandler (No. 2)

[2017] NSWSC 1758

HomicideTheft & propertyTraffic & driving
CRIMINAL LAW SENTENCE OFFENDER’S VEHICLE STRUCK AND KILLED 18 MONTH OLD CHILD IN BACKYARD OFFENDER’S DYSFUNCTIONAL BACKGROUND INSTITUTIONALISATION

Citation: R v Chandler (No. 2) [2017] NSWSC 1758
Court: Supreme Court of New South Wales
Date: 14 December 2017
Judge: Johnson J

Background

In the early evening of 8 January 2015, police located a 22-year-old offender driving a stolen Audi in Bessbrook Way, Constitution Hill, a narrow dead-end street in western Sydney. When police moved to apprehend him, the offender chose to flee rather than surrender. He accelerated the vehicle through a high front fence and into the backyard of a residential property where four children were playing.

The vehicle struck 18-month-old Tateolena Tauaifaga, killing her. Two other children in the yard suffered minor injuries. The offender then drove through the rear fence of the property into an adjacent park crowded with children and adults, who scattered to avoid the vehicle. He continued driving dangerously through several suburbs at high speed before police terminated the pursuit. He was arrested six days later on the Central Coast.

The offender had originally faced a murder charge in the Supreme Court. On 20 October 2017, he pleaded guilty to manslaughter by unlawful and dangerous act, and the Crown accepted that plea in full discharge of the indictment. Three further offences were placed on a Form 1 to be taken into account on sentence: taking and driving a vehicle without consent, driving during a police pursuit in a dangerous manner, and driving without ever having been licensed.

  • What was the appropriate sentence for manslaughter by unlawful and dangerous act, having regard to the objective gravity of the offence?
  • What weight should be given to the offender's background, including childhood deprivation and institutionalisation, in light of the High Court's decision in Bugmy v The Queen?
  • How should the new sentence be structured in relation to the offender's existing sentences for unrelated matters, applying principles of accumulation and totality?
  • Whether special circumstances existed justifying a departure from the standard non-parole period ratio.

Decision

Johnson J described the manslaughter as being of very high objective gravity. The offender knew the backyard could be occupied, given his familiarity with the area from his youth. He drove through a fence into a residential yard at speed in daylight hours on a warm summer evening, when children were plainly likely to be present. His conduct was not momentary misjudgement but a deliberate choice to flee at all costs.

The Court accepted that the offender had a significantly dysfunctional background, including exposure to violence, substance abuse, and prolonged periods of institutionalisation from a young age. Applying Bugmy v The Queen, Johnson J acknowledged that the effects of profound deprivation do not diminish with the passage of time and remain relevant to moral culpability. However, the Court found that these mitigating factors could not substantially reduce the weight of the objective criminality in this case.

The guilty plea was entered late, after the matter had been set down for a judge-alone trial. Johnson J allowed a 10 per cent discount for the utilitarian value of the plea. The offender's criminal history, including a prior conviction for dangerous driving during a police pursuit, was treated as an aggravating factor, and the fact that he was on bail at the time of the offences further weighed against him.

On accumulation and totality, the Court determined that the new sentence should commence on 12 August 2017, accumulating significantly upon an existing sentence that had commenced on 12 August 2013. Johnson J found special circumstances by reference to the degree of accumulation, reducing the non-parole period proportion accordingly. The resulting effective custodial terms across all sentences were an effective non-parole period of 17 years and an effective head sentence of 23 years.

Orders Made

  • The offender was sentenced to 19 years imprisonment for manslaughter, commencing 12 August 2017 and expiring 11 August 2036.
  • A non-parole period of 13 years was set, commencing 12 August 2017 and expiring 11 August 2030.
  • The earliest eligible parole date was 11 August 2030.
  • The three Form 1 offences (taking and driving without consent, dangerous driving during a police pursuit, and driving never having been licensed) were taken into account on sentence.
  • Related charges on the certificate under s 166 of the Criminal Procedure Act 1986 were dismissed under s 167 of that Act.
  • The offender was given the required statutory warning about the Crimes (High Risk Offenders) Act 2006, as manslaughter by unlawful and dangerous act is a "serious violence offence" under that Act.

Key Takeaways

  • The Supreme Court classified this manslaughter as being of very high objective gravity, emphasising the offender's deliberate decision to drive through an occupied residential yard in the knowledge that the area was likely to contain people, particularly children.
  • Under Bugmy v The Queen, the effects of childhood deprivation and institutionalisation remain relevant to the assessment of moral culpability regardless of the offender's age at sentencing, but those factors did not substantially reduce the sentence given the extreme seriousness of the offending.
  • A late guilty plea, entered after a judge-alone trial had been arranged, attracted only a 10 per cent utilitarian discount rather than the greater discount available for early pleas.
  • Where a new sentence is accumulated upon an existing sentence to a significant degree, that accumulation can itself constitute "special circumstances" justifying a lower-than-standard ratio of non-parole period to head sentence, in order to avoid a crushing overall term.
  • Conviction for manslaughter by unlawful and dangerous act constitutes a "serious violence offence" under the Crimes (High Risk Offenders) Act 2006, triggering a mandatory obligation on the sentencing court to warn the offender of the existence of that Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 24, 51B(1), 154A(1)(a)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Road Transport Act 2013 (NSW), s 53(3)

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- ZA v R [2017] NSWCCA 132
- R v Chandler (No. 1) [2017] NSWSC 1565
- The Queen v Lavender (2005) 222 CLR 67
- Wilson v The Queen (1991-1992) 174 CLR 313
- The Queen v Crabbe (1985) 156 CLR 464
- R v McNaughton (2006) NSWLR 566
- R v Borkowski (2009) 195 A Crim R 1
- Ohanian v R [2017] NSWCCA 268
- R v Lulham [2016] NSWCCA 287
- Abbas v R (2013) 231 A Crim R 413
- R v Forbes (2005) 160 A Crim R 1
- Cameron v R (2005) 157 A Crim R 70