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21
Court of Criminal Appeal 17 June 2020

LN v R

[2020] NSWCCA 131

Homicide
CRIME APPEALS APPEAL AGAINST SENTENCE MURDER OF OWN CHILD MENTAL ILLNESS MORAL CULPABILITY

Citation: LN v R [2020] NSWCCA 131
Court: Court of Criminal Appeal, NSW
Date: 17 June 2020
Judges: Basten JA at [1]; R A Hulme J at [98]; Hamill J at [111]

Background

The appellant (LN) was sentenced by Johnson J in the Supreme Court following her conviction for the murder of her three-year-old son. The child had lived with the appellant and her partner (AW) for approximately seven weeks before his death in August 2014. During that period, both adults subjected the child to sustained physical, psychological, and verbal abuse. The fatal injuries were inflicted during the early hours of 3 August 2014 and the child died three days later.

Johnson J sentenced LN to 44 years' imprisonment with a non-parole period of 33 years, commencing 15 September 2014. On that sentence, she would not have been eligible for parole until 14 September 2047, at age 73.

LN sought leave to appeal, arguing the sentence was infected by legal error and was manifestly excessive.

  • Whether a sentencing judge may rely on uncharged acts of violence committed in the weeks preceding a murder as aggravating factors when assessing the objective seriousness of that murder.
  • Whether the sentencing judge failed to give adequate weight to evidence of the appellant's mental illness and its effect on her moral culpability.
  • Whether, having regard to comparable cases, the sentence fell outside a reasonably available range.

Decision

Ground 1: Uncharged prior abuse as aggravation (majority)

Basten JA (with R A Hulme J agreeing) held there was no error in the sentencing judge's approach. It is not permissible to sentence an offender for an uncharged offence, but that principle does not bar a court from considering conduct that might constitute an uncharged offence when assessing the seriousness of the charged offence. Such conduct may be used to illuminate the context and gravity of the crime for which the offender was actually convicted. Any conduct adverse to the offender's interests must be proved beyond reasonable doubt. The majority found the weeks of violent abuse were directly relevant to the murder itself, particularly because they had rendered the child physically and psychologically vulnerable by the time of the fatal assault.

Hamill J dissented on this ground. His Honour accepted that the judge was entitled to decline to treat the murder as an isolated aberration, and to deny the appellant the leniency that might flow from an otherwise unblemished record. However, his Honour concluded that assessing the gravity of the murder itself by reference to the prior pattern of abuse went further and amounted to punishing the appellant for offences with which she had not been charged.

Ground 2: Mental illness and moral culpability (unanimous)

All three judges agreed that the sentencing judge's reasons left a genuine doubt as to whether the evidence of mental illness was accorded appropriate weight. The appellant had an unchallenged history of depression and mental illness, and to the extent the primary judge recounted the mental health evidence, it appeared to have been accepted. The Court of Criminal Appeal held that the depressive condition was apt to reduce moral culpability and to make the case an inappropriate vehicle for general deterrence. The appellant's evidence of childhood abuse and subsequent domestic violence was treated differently: because the expert reports did not clearly establish the effects of that conduct, and the appellant did not give evidence, the sentencing judge was entitled to give those matters no weight.

Ground 3: Manifest excess

Having found specific error in relation to ground 2, the Court held it was neither necessary nor appropriate to determine whether the sentence was also manifestly excessive. The Court proceeded to resentence.

Orders Made

  • Leave to appeal granted.
  • The appeal was allowed and the original sentence quashed.
  • LN was resentenced to 38 years' imprisonment, running from 15 September 2014, comprising a non-parole period of 28 years and 6 months, and a balance of term of 9 years and 6 months.
  • LN will first be eligible for parole on 14 March 2043.

Key Takeaways

  • A sentencing court does not err by considering uncharged acts of violence when assessing the objective seriousness of a charged offence, provided those acts are proved beyond reasonable doubt. The prohibition is against imposing separate punishment for uncharged offences, not against using prior conduct to contextualise the gravity of the offence charged.
  • Where prior violent conduct rendered the victim more vulnerable at the time of the fatal act, a sentencing court may treat that vulnerability as relevant to the seriousness of the murder itself, at least on the majority's reasoning. Hamill J's dissent signals that this boundary remains contested and fact-sensitive.
  • Established mental illness that is accepted by a sentencing judge must be expressly reflected in the assessment of moral culpability and the purposes of sentencing. Silence in the sentencing remarks as to how that evidence was weighed can constitute error.
  • Evidence of an offender's history of childhood abuse or domestic victimisation will not automatically carry mitigating weight. Where expert reports do not clearly establish the nexus between that history and the offending, and the offender does not give evidence, a sentencing court is entitled to assign it no weight.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that once a specific sentencing error is established, it is unnecessary to separately consider whether the overall sentence was manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 32, 33, 54A, 54B, 54D; Sch 2, Pt 17, cl 57
- Crimes (Administration of Sentences) Regulation 2014 (NSW), cl 214A

Cases
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Aslan v R [2014] NSWCCA 114
- Baines v R [2016] NSWCCA 132
- AK v R [2016] NSWCCA 238
- Giles v Director of Public Prosecutions (NSW) [2009] NSWCCA 308; 198 A Crim R 395
- Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1
- Kelly v R [2018] NSWCCA 44
- Lago v R [2015] NSWCCA 296
- R v JCW [2000] NSWCCA 209; 112 A Crim R 466
- Holyoak v R (1995) 82 A Crim R 502
- R v CJK (2009) 22 VR 104; [2009] VSCA 58
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Mezher v R [2019] NSWCCA 76
- Clinton v R [2018] NSWCCA 66
- DL v R [2018] NSWCCA 302
- Lam v R [2015] NSWCCA 143
- R v Gommeson [2014] NSWCCA 159
- Fisher v R [2008] NSWCCA 129
- Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67