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Court of Criminal Appeal 20 December 2019

R v Yardley

[2019] NSWCCA 291

Homicide
CRIME APPEALS APPEAL AGAINST SENTENCE MANSLAUGHTER RESPONDENT RECEIVED A NON RANGE” AND “TOWARDS LOWER END OF RANGE”

Citation: R v Yardley [2019] NSWCCA 291
Court: NSW Court of Criminal Appeal
Date: 20 December 2019
Judges: Meagher JA, Bellew J, Lonergan J

Background

The respondent, David Alan Yardley, pleaded guilty to the manslaughter of his adoptive brother, John Raymond Yardley, with whom he shared a family home in southern Sydney. A long-running dispute over their late father's estate had led to a Deed of Family Arrangement requiring the sale of the family home, and the respondent had come to resent the pace at which the sale was progressing.

On the night of 21 March 2015, five days before the scheduled auction, the respondent returned home and woke the deceased, who was asleep in his bedroom. He then punched the deceased several times to the head, without provocation. The deceased, who had a serious and well-documented medical history including myelofibrosis, blood-thinning medication, and a prior cerebrovascular incident, sustained bilateral nasal fractures, lacerations, and acute intracranial bleeding. After two craniotomies, he died on 3 April 2015.

The respondent was sentenced in the District Court to a non-parole period of 18 months with an additional term of two years. The NSW Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate.

  • Whether the original sentencing judge's characterisation of the offence as falling "below mid-range" and "towards the lower end of range" was warranted given the objective circumstances of the offending.
  • Whether the finding of special circumstances, which supported a departure from the standard ratio between the non-parole period and additional term, was justified on the facts.
  • Whether the non-parole period of 18 months adequately reflected the seriousness of the offending.
  • Whether the Court of Criminal Appeal should exercise its discretion to re-sentence the respondent.

Decision

The Court of Criminal Appeal found that the original sentencing judge's assessment of objective seriousness was not supported by the characteristics of the offending. The assault was purposeful, voluntary, and unprovoked. It involved multiple forceful blows to the head of a man whose significant medical vulnerabilities were known to the respondent. The deceased's reaction at the bedroom door had not caused the respondent any apprehension of harm and presented no threat to his safety.

The Court held that the finding of special circumstances was also not justified on the evidence before the sentencing judge. The original non-parole period of 18 months was found to be wholly inadequate to reflect the gravity of the offence, particularly given the nature of the violence, the respondent's awareness of the deceased's frailty, and the fatal consequences that followed.

The Court was satisfied that the sentence was manifestly inadequate and exercised its discretion to re-sentence the respondent. In doing so, it imposed a substantially longer non-parole period and a recalibrated additional term, bringing the sentence into closer alignment with the objective seriousness of the conduct.

Orders Made

  • The Crown appeal was allowed.
  • The sentence imposed by Acting Judge Conlon SC in the District Court was quashed.
  • The respondent was re-sentenced to a non-parole period of 4 years and 9 months imprisonment, commencing 19 July 2019 and expiring 18 April 2024.
  • An additional term of 1 year and 7 months imprisonment was imposed, commencing 19 April 2024 and expiring 18 November 2025.

Key Takeaways

  • A sentencing judge's characterisation of objective seriousness must reflect the full circumstances of the offending, including the vulnerability of the victim, the respondent's knowledge of that vulnerability, and the nature and number of blows struck.
  • Where an offender is aware of a victim's medical fragility and nonetheless inflicts repeated, forceful blows to the head, that awareness is a material aggravating feature that must be properly weighed.
  • A finding of special circumstances requires justification on the specific facts; it cannot be made without a proper foundation in the evidence before the court.
  • In upholding the Crown's manifest inadequacy ground, the Court of Criminal Appeal increased the non-parole period from 18 months to 4 years and 9 months, a significant upward departure reflecting the seriousness with which the Court viewed the original sentence.
  • Unprovoked domestic violence resulting in death, committed against a frail and medically vulnerable victim, will attract substantial terms of imprisonment notwithstanding mitigating factors such as a guilty plea.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 18(1)(b), 25A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)

Cases:
- Attorney General for NSW v McMahon Mining Services Pty Limited [2019] NSWCCA 8
- Butters v R [2010] NSWCCA 1
- CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9
- Collier v R [2012] NSWCCA 213
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DPP v Darcy-Shillingsworth [2017] NSWCCA 244
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Hiron v R [2007] NSWCCA 336
- Jonson v R [2016] NSWCCA 286
- Maglis v R [2010] NSWCCA 247
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Merrick v R [2017] NSWCCA 264
- Pfitzner v R [2010] NSWCCA 314
- R v Barker [2016] NSWCCA 193
- R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep)
- R v Bryce (No 5) [2014] NSWSC 1184
- R v DH; R v AH [2014] NSWCCA 326
- R v Fidow [2004] NSWCCA 172
- R v Forbes [2005] NSWCCA 377
- R v GWM [2012] NSWCCA 240