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District Court 9 December 2021

R v Butler; R v Russell

[2021] NSWDC 666

HomicideTraffic & drivingFirearms & weaponsPublic order & justice offences
APPEAL APPEAL AGAINST SENTENCE CRIME RELEVANT FACTORS ON SENTENCING GUILTY PLEA TOTALITY PRINCIPLE CRIME UNLAWFUL KILLING

Citation: R v Butler; R v Russell [2021] NSWDC 666
Court: District Court of New South Wales
Date: 9 December 2021
Judge: Haesler SC DCJ

Background

In the early hours of 18 May 2019, a black Ford Territory SUV was travelling south on the Pacific Highway at Albion Park Rail at approximately 164 km/h when it collided with a petrol tanker turning onto the highway. The tanker driver had assumed the approaching vehicle was travelling within the 70 km/h speed limit. A front passenger died instantly; the driver and another passenger sustained severe injuries.

The two offenders, Butler and Russell, were not in the Ford. They were in a separate vehicle, a silver Corolla driven by Butler, which had been pursuing the Ford at similar speeds following a confrontation at a service station. Earlier that evening, Butler and Russell had attempted to extort money from one of the Ford's occupants. The confrontation escalated through threats, a physical altercation with a stick, and what occupants of the Ford believed was the discharge of a firearm, before both vehicles entered the motorway at high speed.

After a four-week trial, a jury convicted both Butler and Russell of the unlawful killing (manslaughter) of the deceased. Butler was also convicted of dangerous driving causing grievous bodily harm to two passengers in the Ford. Russell was acquitted of a firearms charge. Butler faced additional sentencing for a take-and-drive offence and a police pursuit offence committed while he was evading arrest after the fatal crash. A Local Court appeal against an unrelated arson sentence was also before the District Court.

  • Whether the jury's verdicts on manslaughter and dangerous driving causing grievous bodily harm were supported by the facts, including the role of a joint criminal enterprise involving pursuit and intimidation
  • How to assess the moral culpability of each offender given their differing roles in the joint enterprise
  • The weight to be given to the full benefit of Russell's acquittal on the firearms charge when determining facts for sentencing
  • How to apply the totality principle when accumulating sentences across multiple offences and existing custodial terms
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • The parity principle as between co-offenders with different roles, histories, and culpability
  • The relevance of each offender's childhood history and institutionalisation to their moral culpability
  • The appropriate sentence on Butler's Local Court appeal for intentionally damaging property by fire

Decision

The District Court accepted the jury's findings that both offenders participated in a joint criminal enterprise to intimidate and stalk the Ford's occupants in order to recover money. The court found that a reasonable person in Russell's position would have foreseen as a possibility that their dangerous, unlawful conduct exposed the deceased to a risk of serious injury. Russell was sentenced on the basis of that constructive manslaughter framework and received the full benefit of his acquittal on the firearms charge: the court made no findings of fact inconsistent with that acquittal.

Butler's moral culpability was assessed as higher than Russell's. He was the driver of the pursuing vehicle, he initiated the physical confrontation at Northcliffe Drive, and he had actively attempted to destroy evidence and evade arrest after the crash. The court noted he had never held a driver's licence, had spent much of his life in custody, and committed further offences while on parole and while evading arrest. His troubled childhood was considered in mitigation of moral culpability under the principles in Bugmy v The Queen, though the court observed those matters did not diminish the gravity of the offending.

Russell's sentence reflected his lower, though still significant, culpability as a passenger who encouraged and participated in the enterprise without being the driver. The court applied parity principles to ensure proportionality between the two sentences while acknowledging the material differences in their roles and criminal histories. His sentence was structured to commence five months after he entered custody.

The Local Court appeal by Butler against his sentence for intentionally damaging property by fire was dismissed and all orders of the magistrate were confirmed. The court also noted that, as manslaughter is a "serious and violent offence" under relevant legislation, both offenders were advised of the existence and potential application of the Crimes (High Risk Offenders) Act 2006 (NSW).

Orders Made

Butler

  • Local Court appeal (intentionally damage property by fire): dismissed; all magistrate's orders confirmed
  • Drive while disqualified: section 10A finding; disqualified from driving for 6 months
  • Aggregate sentence to commence two years after Butler entered custody
  • Manslaughter: 10 years imprisonment
  • Dangerous driving causing grievous bodily harm (Ms Merrett): 3 years 6 months; disqualified from driving for 2 years
  • Dangerous driving causing grievous bodily harm (Ms Clulow): 3 years 6 months; disqualified from driving for 2 years
  • Police pursuit (5% guilty plea reduction): 1 year 5 months; disqualified from driving for 1 year
  • Take and drive conveyance (5% guilty plea reduction): 1 year 5 months
  • Total aggregate sentence: 13 years
  • Non-parole period: 9 years 3 months, commencing 30 May 2021 and expiring 29 August 2030
  • Balance of term: 3 years 9 months, commencing 30 August 2030 and expiring 29 May 2034
  • Driving disqualification periods suspended while Butler is in custody; accumulation between incidents and on pre-existing disqualification periods

Russell

  • Sentenced to 4 years imprisonment
  • Non-parole period: 2 years 11 months, commencing 28 October 2019 and expiring 27 September 2022
  • Balance of term: 1 year 1 month, commencing 27 September 2022 and expiring 27 October 2023
  • Sentence to commence 5 months after Russell entered custody

Key Takeaways

  • A jury verdict of manslaughter by joint criminal enterprise does not require an offender to have been in the vehicle that caused a fatal collision: participation in a dangerous, concerted course of intimidation and pursuit can suffice where a reasonable person in that position would have foreseen the risk of serious injury to the victim.
  • Where a co-offender is acquitted of a charge at trial, the sentencing court must give that offender the full benefit of the acquittal and cannot make findings of fact inconsistent with it when determining the sentencing facts.
  • Under the principles in Bugmy v The Queen, evidence of a severely deprived childhood can reduce an offender's moral culpability even for serious offences, though it does not diminish the objective gravity of the conduct.
  • Parity between co-offenders requires proportionality, not equality: where roles, criminal histories, and culpability differ materially, substantially different sentences may be appropriate without offending the parity principle.
  • A late guilty plea, entered on the first day of trial, attracted only a 5% utilitarian discount under section 25D of the Crimes (Sentencing Procedure) Act 1999 rather than the 25% reduction available for an early plea in the Local Court.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), ss 18, 52A, 93G(1)(b), 154A, 315(1)(c), s51B(1)
  • Crimes (Administration of Sentences) Act 1999 (NSW)
  • Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25D
  • Criminal Procedure Act 1987 (NSW), s 166
  • Road Transport Act 2013 (NSW), s 54(1)(a)

Cases