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Supreme Court 20 June 2018

R v AS

[2018] NSWSC 930

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE MANSLAUGHTER BY NEGLIGENT HOMICIDE PLEA OF GUILTY DISCOUNT FOR UTILITARIAN VALUE OF PLEA FINDING OF SPECIAL CIRCUMSTANCES

Citation: R v AS [2018] NSWSC 930
Court: Supreme Court of New South Wales
Date: 20 June 2018
Judge: Fullerton J

Background

The offender, AS, pleaded guilty to the manslaughter of her daughter, DB, who was two years and eight months old at the time of her death on 20 December 2016. AS had entered into a relationship with Mohammed Khazma approximately one month before DB died. Over that month, Khazma subjected the child to escalating and sustained physical abuse, including repeated blunt force to her head and face, biting, and other serious violence. Khazma was separately charged with DB's murder.

AS's criminal liability for manslaughter rested on two related failures. First, she did not remove her daughter from the abusive household despite being aware of the serious and escalating risk to the child. Second, she failed to obtain medical treatment for DB over a period of at least two and a half hours on 19 December 2016, during which the child was losing consciousness and showing deteriorating neurological function. The court described this course of conduct as gross criminal neglect.

A significant feature of the sentencing was non-exculpatory duress. AS gave consistent accounts to police, ambulance officers, and the courts that Khazma had threatened to kill her and her family if she sought help or left, and had taken her phone and locked the door. These threats did not excuse her conduct but were treated as relevant to her moral culpability.

  • What was the appropriate sentence for manslaughter by criminal neglect, taking into account the offender's significantly reduced moral culpability due to non-exculpatory duress and mental health conditions?
  • What discount should be applied for the offender's early guilty plea?
  • What discounts should be applied for past and anticipated future assistance to authorities, including the offender's undertaking to give evidence against Khazma at his murder trial?
  • Whether special circumstances existed justifying a variation of the standard ratio between the non-parole period and the balance of term.

Decision

Fullerton J found that, while the objective gravity of the offence was very high given the severity of DB's injuries and the prolonged nature of the neglect, AS's moral culpability was substantially reduced. The reduction flowed from two factors operating together: the non-exculpatory duress arising from Khazma's credible and repeated threats of lethal violence, and AS's enduring mental health difficulties, which the court accepted impaired her capacity to resist those threats and to act protectively.

The court applied a combined discount of 50 per cent to reflect three matters: an early guilty plea (25 per cent), past assistance to police and investigators (10 per cent), and anticipated future assistance, namely AS's undertaking to give evidence at Khazma's murder trial (15 per cent, assessed separately as required by s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)). The court noted that AS had voluntarily participated in a lengthy police interview, promptly identified Khazma as the perpetrator, and continued to cooperate despite genuine fear of giving evidence against him.

Fullerton J found special circumstances based on the combined weight of AS's subjective circumstances, including the need for extended supervision and support on parole. This justified departing from the standard non-parole to balance-of-term ratio. The court also noted that AS was of prior good character, was unlikely to reoffend, and had good prospects of rehabilitation, with specific deterrence given no weight in the sentencing exercise.

Orders Made

  • AS sentenced to imprisonment for 3 years, commencing 10 February 2017.
  • Non-parole period of 16 months, which expired on 9 June 2018.
  • Balance of term of 20 months, expiring on 9 February 2020.

Key Takeaways

  • Non-exculpatory duress, that is, duress that does not amount to a complete defence, can still substantially reduce an offender's moral culpability at sentencing for manslaughter, particularly where it operates alongside established mental health conditions.
  • A combined discount of 50 per cent was available where an early guilty plea, substantial past cooperation with authorities, and a credible undertaking to give future evidence each independently warranted recognition.
  • Under s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), the court is required to identify and quantify separately the component of any sentence discount that relates to anticipated future assistance.
  • Special circumstances justifying a variation in the non-parole to balance-of-term ratio can be established by the combined weight of an offender's subjective circumstances, including mental health needs and the requirement for structured community supervision on release.
  • Sentencing for manslaughter by criminal neglect in a domestic violence context requires careful calibration of objective gravity against the offender's actual capacity to act, where that capacity was constrained by credible threats from a co-habitant.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(d), 23(4)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Giang v R [2017] NSWCCA 25
- R v KJ [2015] NSWSC 767
- R v Loveridge [2014] NSWCCA 120
- R v PFC [2010] NSWSC 834
- R v Smith [2013] NSWSC 796
- R v TP [2018] NSWSC 369
- Yun v R [2017] NSWCCA 317