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Supreme Court 26 November 2021

R v French

[2021] NSWSC 1531

HomicideDomestic & family violencePublic order & justice offences
SENTENCING REMARKS ON SENTENCE MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT DISPOSAL OF CORPSE HISTORY OF PERSONAL VIOLENCE OFFENCES

Citation: R v French [2021] NSWSC 1531
Court: Supreme Court of New South Wales
Date: 26 November 2021
Judge(s): Dhanji J

Background

The offender, Dennis Andrew French, pleaded guilty to the manslaughter of his domestic partner and to a separate common law offence of wilfully disposing of her body before a coroner had the opportunity to hold an inquest. The killing occurred on 12 December 2012 in Cranebrook, NSW, following a prolonged pattern of serious physical violence against the deceased across the preceding months.

After the killing, the offender concealed the deceased's body in a nearby creek bed. He then actively misled family members, police, and a coronial inquest over several years, including by accessing the deceased's Facebook account to create the false impression she was still alive. Her skeletal remains were not discovered until May 2018, approximately five and a half years after her death, when a 14-year-old boy found her skull.

The offender was charged with murder in April 2019 but ultimately pleaded guilty to the lesser charge of manslaughter on the basis that the death resulted from an unlawful and dangerous act. The manslaughter charge carries a maximum penalty of 25 years imprisonment. The body disposal charge is a common law offence with penalty at large.

  • What sentence was appropriate for manslaughter by unlawful and dangerous act in the context of sustained domestic violence?
  • How should the separate offence of wilful disposal of a body before coronial inquest be sentenced, and how should totality principles apply?
  • What weight should be given to the guilty plea, given the timing and the "new count" provisions under the Crimes (Sentencing Procedure) Act 1999 (NSW)?
  • How should the offender's deprived background, history of personal violence offences, and limited evidence of remorse affect the sentence?
  • Whether special circumstances existed to justify a variation from the standard non-parole period ratio.

Decision

Dhanji J identified the objective seriousness of the manslaughter as substantial. The offending involved repeated, escalating physical violence against the deceased in an intimate partner context, culminating in a blow that fractured her jaw in two places and caused her death. The court found that the offender's subsequent conduct, including disposing of the body, deceiving investigators, and claiming privilege before the coroner, significantly aggravated the overall criminality and caused prolonged anguish to the deceased's family.

On subjective matters, the court accepted that the offender had experienced significant childhood deprivation, consistent with the principles in Bugmy v The Queen (2013) 249 CLR 571, and that this background retained mitigating weight. However, the offender's extensive history of personal violence offences reduced the mitigating force of that background in the sentencing calculus. The court found the evidence of remorse to be limited and noted the offender's post-offence conduct as inconsistent with genuine contrition.

The guilty plea was a mitigating factor, though the discount was moderated by the timing of the plea and the application of the "new count" provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW). The court treated the body disposal offence as a serious aggravating feature of the overall conduct, reflecting the deliberate concealment of a violent death from authorities and the deceased's family.

Special circumstances were found to exist, warranting a variation in the ratio of non-parole period to head sentence. This reflected the need for an adequate period of supervised parole to assist with the offender's reintegration, given his background and the length of the custodial term.

Orders Made

  • Convicted of the manslaughter of Cheryl Ardler and the wilful disposal of her body.
  • For the disposal of the body offence: 2 years and 8 months imprisonment, with a non-parole period of 2 years, commencing 14 February 2019.
  • For the manslaughter offence: 9 years imprisonment, with a non-parole period of 6 years, commencing 14 February 2020.
  • Overall effective sentence: 10 years imprisonment with a non-parole period of 7 years, commencing 14 February 2019 and expiring 13 February 2029.
  • First eligible for parole: 13 February 2026.
  • The manslaughter offence directed to be recorded on the offender's criminal history as a domestic violence offence under s 12(2) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
  • The offender warned of the existence and application of the Crimes (High Risk Offenders) Act 2006 (NSW), as required for a "serious violence offence."

Key Takeaways

  • Where a domestic violence killing is followed by systematic concealment of the body and sustained deception of investigators and a coroner, those post-offence actions will weigh heavily in sentencing and are treated as seriously aggravating the overall criminality.
  • The Bugmy principle, that the mitigating effect of a deprived background does not diminish with the passage of time, was applied, but the court found that an extensive history of personal violence offences reduced its practical weight in this case.
  • Under the "new count" guilty plea provisions in the Crimes (Sentencing Procedure) Act 1999 (NSW), the sentencing court applied a moderated discount, reflecting the circumstances and timing of the plea rather than treating it as equivalent to an early plea at first opportunity.
  • A finding of special circumstances can justify departing from the standard non-parole period ratio where the length of the sentence and the offender's background point to a genuine need for an extended supervised parole period.
  • The common law offence of wilful disposal of a body before coronial inquest carries no statutory maximum, and the sentence imposed (2 years 8 months with a 2-year non-parole period) was structured to run partially concurrently with the manslaughter term to achieve a just overall result.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), s 24 (manslaughter, maximum penalty)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25A, 25B, 25D
  • Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 12
  • Crimes (High Risk Offenders) Act 2006 (NSW), ss 5A, 25C

Cases