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19
Court of Criminal Appeal 3 December 2021

R v Quinlin

[2021] NSWCCA 284

Also reported as (2021) 293 A Crim R 253
Homicide
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST INADEQUACY MANSLAUGHTER INDIGENOUS RESPONDENT

Citation: R v Quinlin [2021] NSWCCA 284
Court: NSW Court of Criminal Appeal
Date: 3 December 2021
Judges: Price J (with reasons); Hamill J and Ierace J agreeing

Background

The respondent, a young Aboriginal man, pleaded guilty in the Local Court to manslaughter by an unlawful and dangerous act following the killing of a man at Nambucca Heads on 20 March 2019. The matter was committed to the District Court at Coffs Harbour for sentencing, which ultimately proceeded before Priestley SC DCJ on 15 June 2021.

The sentencing judge took into account the respondent's difficult personal history, including his removal from his parents as an infant, a childhood marked by exposure to substance abuse and community violence, the death of his mother (which he witnessed at age 19), and diagnosed schizophrenia. The judge also considered the respondent's rehabilitation progress during the period he spent on bail conditions prior to sentencing, including completing a TAFE qualification and a behaviour change program.

The Director of Public Prosecutions brought a Crown appeal under s 5D of the Criminal Appeal Act 1912 (NSW) on two grounds: first, that the sentencing judge erred in treating the respondent's time on bail as quasi-custody and backdating the sentence accordingly; and second, that the resulting sentence was manifestly inadequate.

  • Whether the sentencing judge erred by treating the respondent's bail period as equivalent to quasi-custody, thereby backdating the commencement of the sentence
  • Whether the bail conditions in place were sufficiently onerous to amount to quasi-custody
  • Whether the overall sentence, including the non-parole period, was manifestly inadequate having regard to the objective seriousness of the offence and the respondent's subjective circumstances

Decision

Ground 1: Quasi-custody

The Court considered whether the respondent's bail conditions were sufficiently restrictive to constitute quasi-custody, justifying the sentencing judge's decision to backdate the sentence. The conditions included a 7:00pm to 7:00am curfew, a prohibition on entering Nambucca Heads, and requirements that significantly constrained the respondent's freedom of movement and social contact. Price J found that the sentencing judge was entitled to treat these conditions as amounting to quasi-custody. Ground 1 of the appeal was dismissed.

Ground 2: Manifest inadequacy

On the question of manifest inadequacy, the Court applied the well-established principle from House v The King (1936) 55 CLR 483 that appellate intervention is only warranted where error is identified. The Court acknowledged the serious nature of manslaughter and that the non-parole period of 12 months might be viewed as lenient. However, Price J was not persuaded that the sentence fell outside the range of sentences reasonably open to the sentencing judge. The respondent's Indigenous background, complex developmental trauma, diagnosed schizophrenia, significant rehabilitation progress, and strong subjective circumstances collectively justified the approach taken at first instance. The Court also confirmed, consistent with Bugmy v The Queen (2013) 249 CLR 571, that the effects of profound disadvantage do not diminish with repeated offending and must be weighed in sentencing. Ground 2 was dismissed.

All three judges agreed the appeal should be dismissed. Hamill J noted the respondent was "young and contrite" and endorsed Price J's reasons without addition. Ierace J also agreed.

Orders Made

• The Director's appeal against the sentence is dismissed
• Ground 2 of the appeal is dismissed

Key Takeaways

  • In dismissing both grounds of the Crown appeal, the Court of Criminal Appeal confirmed that bail conditions imposing a curfew and significant geographic and social restrictions can amount to quasi-custody, supporting a decision to backdate the commencement of a sentence.
  • A Crown appeal on the ground of manifest inadequacy requires the appellate court to identify an actual sentencing error; a non-parole period that might appear lenient does not, without more, establish that the sentence fell outside the available range.
  • Under the principles in Bugmy v The Queen, the profound disadvantage experienced by many Aboriginal offenders, including childhood removal, intergenerational trauma, exposure to community violence, and consequent substance misuse, remains a weighty mitigating factor regardless of any prior offending history.
  • Diagnosed mental illness, including schizophrenia, and evidence of genuine, sustained rehabilitation undertaken during the bail period are relevant subjective factors that a sentencing court is entitled to give significant weight.
  • No single factor compelled a particular sentencing outcome; the Court's reasoning reflects that the cumulative weight of the respondent's subjective circumstances supported the sentence imposed at first instance.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 20A
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- House v The King (1936) 55 CLR 483; [1936] HCA 45
- La v R [2021] NSWCCA 136
- Regina v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534