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District Court 13 December 2021

R v HAY

[2021] NSWDC 669

HomicideTheft & property
CRIME MANSLAUGHTER DAMAGE BY FIRE DECEASED DIES AS A RESULT OF FIRE BUGMY FACTORS REDUCTION OF MORAL CULPABILITY

Citation: R v HAY [2021] NSWDC 669
Court: District Court of New South Wales
Date: 13 December 2021
Judge(s): Lerve DCJ

Background

The offender pleaded guilty to manslaughter and recklessly destroying residential property by fire, arising from events at a house in Kooringal, a suburb of Wagga Wagga, on 25 February 2019. The offender had been living at the premises as a guest of the tenant but was asked to leave after a period of verbal abuse directed at another resident, the deceased. She collected her belongings on 24 February 2019 and left without incident.

In the early hours of 25 February 2019, having spent the evening drinking and smoking cannabis and telling a friend she was angry about being asked to leave, the offender returned to the premises at approximately 6am and set fire to a couch on the front patio using a lighter. The fire spread rapidly into the house. The deceased, a 36-year-old woman who suffered from asthma, incontinence, and extreme obesity, was asleep in a rear bedroom. Neighbours attempted a rescue but were unable to save her, and she died as a result of the fire.

The offender was committed for sentence from Wagga Wagga Local Court and appeared for sentence in the District Court on 12 November 2021. She adhered to her guilty pleas and received a 25 per cent discount for the utilitarian value of those pleas.

  • What was the objective seriousness of the manslaughter offence, and how did the method of killing (fire) bear on that assessment?
  • To what extent did the offender's deprived background and disadvantaged upbringing (assessed under the principles in Bugmy v The Queen) reduce her moral culpability?
  • What weight should be given to the offender's prospects of rehabilitation and other subjective factors?
  • Whether an aggregate sentence under section 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate, and whether special circumstances warranting a reduced non-parole period existed.

Decision

Lerve DCJ assessed the manslaughter as serious. The offender deliberately started the fire at a residential premises in the early hours of the morning while the occupants were asleep, and the physical characteristics of the deceased made escape extremely difficult. The court acknowledged, as required by Makarian v The Queen, that the maximum penalty of 25 years imprisonment provided the relevant yardstick for calibrating the seriousness of the offending.

The court applied the principles from Bugmy v The Queen, which recognise that a background of profound deprivation and disadvantage can reduce an offender's moral culpability, even for serious offences. The offender's history was taken into account in this way, though the judgment notes the limits of that reduction given the gravity of the outcome. The court also quoted remarks from R v Barnett and R v Magro to the effect that no sentence can reflect the true value of a human life or the grief caused by its loss; the sentence instead reflects proper sentencing principle.

The court found special circumstances warranting a reduction in the proportion of the sentence to be served as a non-parole period, reducing it below the statutory default of one-half. The non-parole period was set at two-thirds of the total sentence rather than the more conventional ratio, with the balance of term intended to provide a meaningful period of supervision on parole to support rehabilitation.

An aggregate sentence was imposed under section 53A, incorporating both offences. The court identified what the sentences would have been had they been imposed separately: 2 years 3 months (starting point 3 years) for the property damage offence, and 9 years (starting point 12 years) for manslaughter, with partial accumulation applying to produce the aggregate.

Orders Made

  • The offender was convicted of both offences.
  • An aggregate sentence of 10 years 3 months was imposed, with a non-parole period of 6 years 10 months.
  • The non-parole period commences 21 May 2020 and expires 20 March 2027.
  • The balance of term of 3 years 5 months commences 21 March 2027 and expires 20 August 2030.
  • The offender is eligible for release to parole at the expiration of the non-parole period, with the court recommending release.
  • Copies of psychiatric and psychological reports from Dr Ashkar, Dr Rawson, and Dr O'Connell are to be forwarded to the Department of Corrective Services with the relevant warrant.

Key Takeaways

  • The District Court confirmed that deliberate ignition of a residential fire while occupants are asleep, resulting in death, constitutes serious manslaughter, calibrated against the 25-year maximum penalty in accordance with Makarian v The Queen.
  • Under the Bugmy principles, evidence of a deprived and disadvantaged upbringing can reduce an offender's moral culpability even where the offending is objectively serious, although the extent of that reduction remains proportionate to the gravity of the conduct.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 allows a court to set a non-parole period at a lower proportion of the total sentence than the statutory default, where extended post-release supervision is needed to support rehabilitation.
  • Sentencing courts applying the aggregate sentence provisions in section 53A are required to identify what individual sentences would have been imposed for each offence separately, and to address the question of accumulation, before arriving at the aggregate.
  • No sentence can reflect the monetary or emotional value of a human life; the court's task is to impose a sentence that reflects adequate punishment, denunciation, recognition of harm, objective seriousness, and the offender's prospects of rehabilitation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 18(1)(b), 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases
- Makarian v The Queen (2005) 208 CLR 357
- Bugmy v The Queen [2013] HCA 37
- Magro v R [2020] NSWCCA 25
- R v Magro [2019] NSWSC 343
- R v Barnett [2016] NSWDC 302
- Mbele v R [2021] NSWCCA 182
- Tepania v R [2018] NSWCCA 247
- Betts v R [2015] NSWCCA 39
- Brown v R [2014] NSWCCA 214
- Carr v R [2014] NSWCCA 202
- Greenwood v R [2014] NSWCCA 64
- Hampton v R (1998) 44 NSWLR 729
- Hili & Jones v The Queen [2010] HCA 45
- Elyard v R [2006] NSWCCA 43
- R v Elzakhem [2008] NSWCCA 31
- Porter v The Queen [2008] NSWCCA 145
- R v Lee [2019] NSWDC 601
- R v Mazur (2000) 113 A Crim R 67
- R v MD, BM, NA & JT (2005) 156 A Crim R 372
- Perrone (1989) 43 A Crim R 366