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Court of Criminal Appeal 7 December 2018

Sheiles v R

[2018] NSWCCA 285

Homicide
CRIMINAL LAW SENTENCE APPEAL SENTENCE APPEAL DISMISSED.

Citation: Sheiles v R [2018] NSWCCA 285
Court: Court of Criminal Appeal, NSW
Date: 7 December 2018
Judge(s): Hoeben CJ at CL; Bellew J; Campbell J

Background

The applicant was convicted of manslaughter by majority verdict following a trial in the Supreme Court. She had stabbed the deceased once in the chest with a large knife, killing him. The sentencing judge found she had acted in excessive self-defence, intending to cause grievous bodily harm but not death, in response to a sexual assault committed by the deceased at an isolated location.

At the time of the offence, the deceased's wife was gravely and terminally ill; he was her primary carer. Their 15-year-old daughter also lived with them. The applicant was aware of both circumstances, having briefly met the daughter and the wife prior to the fatal incident.

The sentencing judge imposed a term of eight years' imprisonment with a non-parole period of five years. In doing so, his Honour identified two aggravating features: a Facebook message sent hours before the stabbing expressing an intention to harm the deceased, and the consequences of the death for the deceased's terminally ill wife and orphaned daughter. The applicant challenged only the second finding on appeal.

  • Whether the sentencing judge erred by treating the impact of the deceased's death on his terminally ill wife and young daughter as a factor that increased the objective gravity of the offence.
  • Whether the principle in R v Previtera (that it is impermissible to sentence more harshly on the basis that one victim's life is perceived to be more valuable than another's) precluded that finding.
  • Whether an intent to inflict grievous bodily harm, rather than an intent to kill, was sufficient to engage the principle from R v Lewis (that awareness of the likely consequences of death for dependants can be relevant to moral culpability).

Decision

Hoeben CJ at CL (with whom Bellew J and Campbell J agreed) dismissed the appeal, finding no error in the sentencing judge's approach.

The Court accepted that the sentencing judge's reasoning rested not on Previtera-type value-of-life considerations, but on the principle identified in R v Lewis: where an offender is aware that their actions may cause death and that death will have serious consequences for dependants, that awareness is relevant to the offender's moral culpability. The sentencing judge had correctly placed the finding about the wife and daughter under the heading of objective seriousness, though the Court noted that strictly it belonged under moral culpability. That mislabelling did not, however, amount to a legal error.

The Court also held that the R v Lewis principle is not confined to cases where the offender specifically intends to kill. An intention to inflict grievous bodily harm by stabbing someone deeply in the chest does not preclude the offender from also being aware of the real possibility that death could result. On the evidence, the applicant knew the deceased was the carer of a terminally ill wife and the father of a teenage daughter, and that awareness was properly taken into account.

Finally, the Court confirmed that this reasoning does not conflict with R v Previtera. The sentencing judge had dealt with the victim impact statement separately and explicitly in accordance with Previtera. Nothing in the judgment suggested the deceased's life was treated as more valuable than any other person's life.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that an offender's awareness, at the time of a fatal offence, that their actions may cause death and deprive dependants of a carer or parent is a legitimate factor going to moral culpability in sentencing.
  • The principle from R v Lewis is not limited to cases involving an intention to kill. An offender who intends to inflict grievous bodily harm by a deeply forceful stab wound can simultaneously be aware of a real possibility of causing death, sufficient to engage the principle.
  • R v Previtera remains good law but operates in a distinct domain. It prohibits sentencing more harshly because a victim's life is perceived as more valuable; it does not prevent a sentencing court from considering an offender's knowledge of the collateral human consequences of death when assessing moral culpability.
  • Mislabelling a relevant sentencing factor under the wrong heading (for example, placing a moral culpability consideration under "objective seriousness") does not automatically constitute appealable error, provided the factor is otherwise legally valid and the overall sentence is not demonstrated to be manifestly excessive.
  • A sentencing court may make factual findings about an offender's knowledge of a victim's family circumstances even where that knowledge was not specifically contested in the sentence proceedings, as long as the evidence clearly supports those findings.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A(g), 21A(2)(g), 21A(4), 21A(5)
- Crimes Act 1900 (NSW), s 19(1)(a)

Cases:
- R v Previtera (1997) 94 A Crim R 76
- R v Lewis [2001] NSWCCA 448
- R v Berg [2004] NSWCCA 300
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- R v Wickham [2004] NSWCCA 193
- Josefski v R [2010] NSWCCA 41; 217 A Crim R 183
- SBF v The Queen [2009] NSWCCA 23; 198 A Crim R 219
- R v Bollen (1998) 99 A Crim R 510
- R v Dang [1999] NSWCCA 42
- R v Aytugrul [2009] NSWSC 275
- R v Naden [2013] NSWSC 759
- R v Droudis (No 16) [2017] NSWSC 20
- R v Gilson (No 3) [2017] NSWSC 1670
- R v Ronald Edward Medich (No 43) [2018] NSWSC 886