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54
Court of Criminal Appeal 19 November 2021

Paterson v R

[2021] NSWCCA 273

Assault & violenceHomicide
MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT ALCOHOL FUELLED VIOLENCE POOR CRIMINAL RECORD DISPARITY WITH CO OFFENDER

Citation: Paterson v R [2021] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 19 November 2021
Judges: Beech-Jones CJ at CL; R A Hulme J; N Adams J

Background

The appellant pleaded guilty to the manslaughter of a 21-year-old man outside a leagues club in June 2017. The victim had been ejected from the venue after behaving abusively while intoxicated, and was walking away when the appellant and his co-offender alighted from a nearby bus and initiated a confrontation. After a 165-metre chase, the co-offender punched the victim to the ground. The appellant then kicked the victim twice in the head while he lay supine, rendering him unconscious, before stomping on his head with both feet. The victim was left lying in a bicycle lane, where he was subsequently struck by a passing car. He died from severe traumatic blunt force head injuries.

The appellant was sentenced by Rothman J to 16 years and 6 months imprisonment with a non-parole period of 12 years and 5 months. His co-offender, who had thrown the punch that initially felled the victim but did not anticipate the subsequent kicking and stomping, received 8 years and 6 months imprisonment with a non-parole period of 5 years and 6 months.

On appeal, the appellant challenged the sentencing judge's characterisation of the offence as being at the "highest end of culpability" for manslaughter, contended the sentence was manifestly excessive, and argued there was an unjustified disparity with the co-offender's sentence.

  • Whether it was open to the sentencing judge to characterise the offending as sitting at the "highest end of culpability" for manslaughter by unlawful and dangerous act
  • Whether the sentence of 16 years and 6 months (with a starting point near the maximum of 25 years, prior to the plea discount) was manifestly excessive
  • Whether the disparity between the appellant's sentence and that of the co-offender was unjustified

Decision

The Court of Criminal Appeal upheld the first two grounds of appeal and did not find it necessary to address the third. Beech-Jones CJ at CL found that, while the offending was plainly very serious, the characterisation of it as sitting at the "highest end of culpability" for manslaughter was not open on the agreed facts. That characterisation had the consequence of placing the starting point for the sentence (before the plea discount) close to the 25-year maximum penalty, which the Court found was not appropriate for this offending.

The Court accepted that the assault was savage and that the victim was effectively defenceless when the most serious violence was inflicted. However, the offence was manslaughter by unlawful and dangerous act, not murder, and the agreed facts recorded that the appellant did not intend to inflict grievous bodily harm. The absence of that intent, and the circumstances of the offence taken as a whole, placed it short of the very highest category of such offending.

The Court also took into account the appellant's personal background under the principles established in Bugmy v The Queen, including his upbringing and mental condition, which warranted some reduction in assessed moral culpability. The sentencing judge had made findings about these matters but the weight placed on them was effectively nullified by the "highest end" characterisation.

On resentencing, the Court set a pre-plea starting point of 16 years' imprisonment (rather than a figure near the maximum), applied the plea discount, and declined to find special circumstances given the appellant's limited rehabilitation prospects and the supervision period already available under the standard ratio.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed by Rothman J on 12 March 2020 set aside
  • In lieu thereof: a term of imprisonment comprising a non-parole period of 9 years commencing 7 August 2017, and a balance of term of 3 years; total sentence of 12 years
  • Appellant eligible for release on parole on 6 August 2026
  • Appellant notified of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), manslaughter being a "serious and violent offence" under that Act

Key Takeaways

  • The Court of Criminal Appeal confirmed that characterising manslaughter by unlawful and dangerous act as sitting at the "highest end of culpability" carries significant sentencing consequences and must be supported by the facts as agreed or found; it is not available simply because the violence was severe.
  • A pre-plea starting point near the statutory maximum of 25 years for manslaughter was found to be excessive where the offender did not intend to inflict grievous bodily harm, even where the violence involved repeated kicking and stomping on a defenceless, supine victim.
  • Bugmy principles, recognising the mitigating effect of a deprived background on moral culpability, must be given genuine weight in the sentencing calculus; a high culpability characterisation that effectively displaces that consideration may itself constitute error.
  • No finding of special circumstances was warranted where the offender had limited rehabilitation prospects and the parole supervision period arising from the standard non-parole ratio was already substantial.
  • Manslaughter is a "serious and violent offence" within the meaning of s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW), and sentencing courts are required to notify offenders of that Act's potential application.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C

Cases
- Attwater v R; Maris v R [2021] NSWCCA 17
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Craft v R [2021] NSWCCA 131
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Magro v R [2020] NSWCCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v Blacklidge (NSWCCA, 12 December 1995, Gleeson CJ, unrep)
- R v Loveridge [2014] NSWCCA 120
- R v Paterson; R v O'Brien [2020] NSWSC 221