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Court of Criminal Appeal 1 November 2019

ES v R

[2019] NSWCCA 262

Assault & violenceHomicide
CRIMINAL LAW SENTENCING ALLEGED ERRORS IN FACTUAL FINDINGS MANIFEST EXCESS

Citation: ES v R [2019] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 1 November 2019
Judge(s): Simpson AJA, Fullerton J, and Adamson J

Background

The applicant was sentenced by McCallum J in the NSW Supreme Court following the death of his infant daughter, Liana (a pseudonym), who was not yet three months old. The cause of death was closed head injury resulting from the applicant shaking her. At sentencing, the applicant asked the court to take into account a further offence of assault occasioning actual bodily harm under the Form 1 procedure. He was sentenced to eight years' imprisonment with a non-parole period of five years, commencing 14 November 2015.

The agreed facts established that, prior to the fatal incident on 13 November 2015, Liana had sustained multiple rib fractures of varying ages and bruising across her face, torso, and arms. Medical evidence indicated these were consistent with compression by adult hands and biting. The applicant did not dispute that he was responsible for those prior injuries, and no one else had ever cared for the child.

The applicant sought leave to appeal the sentence on five grounds, contending errors in the sentencing judge's factual findings, insufficient weight given to his disadvantaged upbringing, error in the calculation of the guilty plea discount, denial of procedural fairness, and manifest excess in the sentence overall.

  • Whether the sentencing judge erred in finding the offending was not an isolated loss of control, thereby increasing the weight given to personal and specific deterrence
  • Whether the sentencing judge gave insufficient weight to the applicant's disadvantaged upbringing as a mitigating factor reducing moral culpability
  • Whether the sentencing judge erred in applying a 12% discount for the utilitarian value of the guilty plea
  • Whether the sentencing proceedings miscarried due to a denial of procedural fairness in relation to the guilty plea discount
  • Whether the sentence of eight years with a five-year non-parole period was manifestly excessive

Decision

The Court of Criminal Appeal dismissed all five grounds. On ground 1, the Court found no error in the sentencing judge's conclusion that the offending was not an isolated loss of control. The prior injuries sustained by Liana, which the applicant did not dispute causing, arose directly from the Form 1 offence the applicant had himself asked to be taken into account. It followed that the sentencing judge was entitled to consider that pattern of conduct when assessing deterrence.

On ground 2, the Court noted that the argument about the applicant's disadvantaged upbringing had not been put to the sentencing judge at first instance. More fundamentally, the Court confirmed that the weight to be given to a particular mitigating factor is a matter for the sentencing judge's discretion, and an appellate court will not intervene merely because a different weight might have been assigned.

On grounds 5 and 7, the Court examined the chronology of the plea negotiations carefully. The applicant had initially refused to plead guilty on the agreed facts proposed by the DPP and maintained a not guilty plea. He ultimately pleaded guilty during the trial after the jury was empanelled. The sentencing judge applied a 12% discount. Although the applicant argued the discount was too low and that procedural fairness required the parties to be heard before any departure from the range they had suggested, the Court found the discount was plainly open on the facts and that no arguable denial of procedural fairness arose.

On ground 6, the Court assessed the sentence in its totality. It found that the offending was a serious example of manslaughter by an unlawful and dangerous act against a wholly defenceless infant, and that a starting point in the order of nine years before the plea discount was not excessive in the context of a maximum penalty of 25 years. The sentence also reflected significant findings in the applicant's favour, including that his PTSD had contributed to the offending, that he was remorseful, and that he had reasonable prospects of rehabilitation. The Court concluded the sentence was not manifestly excessive and dismissed the appeal, though it granted leave having given full consideration to each ground.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that where an offender invites the sentencing court to take into account a Form 1 offence, the conduct underlying that offence may properly inform the assessment of factors such as personal and specific deterrence.
  • A ground of appeal based on the weight given to a particular mitigating factor will generally not succeed: appellate courts do not intervene simply because a sentencing judge weighted a factor differently from how an applicant would have preferred.
  • Arguments not raised before the sentencing judge face a higher hurdle on appeal; the failure to put the disadvantaged upbringing submission at first instance weakened that ground considerably.
  • No denial of procedural fairness was established merely because the sentencing judge applied a guilty plea discount outside the range contended for by the parties, where the chronology of the plea made the assessed discount plainly open.
  • In assessing manifest excess, the Court evaluated the sentence as a whole against the maximum penalty and the objective seriousness of the offence, finding that concurrent recognition of mitigating factors did not render the eight-year term with a five-year non-parole period excessive.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 33
- Crimes Act 1900 (NSW), ss 24, 59
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- R v Baker [2000] NSWCCA 85
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Baroudi v R [2007] NSWCCA 48
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Button v R [2010] NSWCCA 264
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- R v Blacklidge (NSWCCA, 12 December 1995, unreported)
- R v ES (No 2) [2018] NSWSC 1708