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Court of Criminal Appeal 29 March 2019

Lees v R

[2019] NSWCCA 65

HomicideDomestic & family violence
CRIMINAL LAW SENTENCE APPEAL MANSLAUGHTER BACKGROUND OF DOMESTIC VIOLENCE SENTENCE MANIFESTLY EXCESSIVE NEED TO RESENTENCE.

Citation: Lees v R [2019] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 29 March 2019
Judges: Bathurst CJ; Hoeben CJ at CL (principal judgment); Price J

Background

The applicant pleaded guilty in the Sydney District Court to manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW), carrying a maximum penalty of 25 years imprisonment. On 20 October 2015, she drove a motor vehicle into her de facto partner, killing him. Their long-term relationship had involved domestic violence and drug abuse.

The sentencing judge found that the offence fell into the category of death by an unlawful and dangerous act, and that the applicant had intentionally used the vehicle as a weapon. A 10 per cent discount was applied for a very late guilty plea, and a sentence of 16 years imprisonment with a non-parole period of 12 years was imposed.

The applicant sought leave to appeal, arguing that the sentencing judge had incorrectly assessed the objective seriousness of the offence and that the sentence was manifestly excessive. A third ground, concerning the District Court's jurisdiction, was abandoned before the hearing.

  • Whether the sentencing judge erred in rating the objective seriousness of the manslaughter as being in the high range
  • Whether the sentence of 16 years (non-parole period of 12 years) was manifestly excessive
  • Whether the applicant's psychiatric and psychological conditions, including PTSD, Major Depressive Disorder, and borderline intellectual disability, had been given sufficient weight in assessing her moral culpability

Decision

The Court of Criminal Appeal found no basis to interfere with the sentencing judge's assessment that the offence was objectively serious. The applicant had intentionally driven her vehicle at the deceased during a confrontation, and the sentencing judge's findings of fact, which were not challenged on appeal, supported that characterisation. The Court confirmed the offence remained in the high range of objective seriousness.

However, the Court found that the sentencing judge had given insufficient weight to the applicant's significant psychiatric and psychological difficulties. Reports from a forensic psychologist (Ms Lucas), a psychiatrist (Dr Martin), and later Professor Hayes (who examined the applicant in custody) consistently identified that the applicant suffered from PTSD and Major Depressive Disorder, and functioned within the range of borderline intellectual disability. Professor Hayes also noted that these conditions made incarceration more onerous for the applicant than it would be for a person without them.

The Court held that these conditions, while they did not alter the objective gravity of the offence, substantially reduced the applicant's moral culpability. Insufficient consideration of moral culpability in light of that psychiatric evidence rendered the original sentence manifestly excessive. The Court therefore resentenced the applicant.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Original sentence imposed on 18 July 2017 quashed
  • Applicant resentenced to imprisonment with a non-parole period of 9 years commencing 20 October 2015 and expiring 19 October 2024, with a balance of term of 3 years expiring 19 October 2027

Key Takeaways

  • A sentencing judge's factual findings as to the manner in which an offence was committed will stand on appeal where they are not directly challenged, even where the statement of agreed facts contains internal inconsistencies.
  • Psychiatric and psychological conditions, even where they do not diminish objective seriousness, can substantially reduce an offender's moral culpability and must be given proper weight at sentence.
  • The Court of Criminal Appeal confirmed that manslaughter committed by intentionally using a vehicle as a weapon against the deceased falls in the high range of objective seriousness.
  • Where multiple expert reports consistently identify significant mental health conditions, a sentencing court's failure to adequately reflect those conditions in the sentence can render that sentence manifestly excessive and require resentencing.
  • Professor Hayes's finding that the applicant's mental conditions made her incarceration more onerous was taken into account by the Court of Criminal Appeal when resentencing, illustrating that post-sentence psychiatric evidence gathered in custody may be relevant to a sentence appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10A, 21A(5AA)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Baladjam v R [2018] NSWCCA 304
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Newman v R [2018] NSWCCA 208
- Ngati v R [2018] NSWCCA 32
- R v Robert Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Tepania [2018] NSWCCA 247
- R v Pham [2015] HCA 39; 256 CLR
- Vanderventer v R [2013] NSWCCA 33