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Supreme Court 15 June 2021

R v Tailford (No 2)

[2021] NSWSC 695

Assault & violenceHomicide
CRIME SENTENCING M ANSLAUGHTER EARLY PLEA OF GUILTY TO MANSLAUGHTER TRIAL FOR MURDER NOT GUILTY TO MURDER

Citation: R v Tailford (No 2) [2021] NSWSC 695
Court: Supreme Court of New South Wales
Date: 15 June 2021
Judge(s): Rothman J

Background

The offender was charged on indictment with both murder and manslaughter arising from the death of Richard Eggins on 1 March 2019 in Orange, NSW. From the outset, the offender pleaded not guilty to murder and guilty to manslaughter. At trial, the jury was asked only to decide the murder charge, returning a verdict of not guilty. The manslaughter plea then fell to be sentenced.

The facts were largely uncontroversial once the jury resolved the murder question. On the night of the offence, the offender consumed between 10 and 13 glasses of rum and coke at a hotel and continued drinking for several hours at a private residence. Expert pharmacology evidence indicated his blood alcohol concentration probably exceeded 0.2 g per 100 mL at the time of the offence. Following an argument at his home and a confrontation in a garage, the offender retrieved a carving fork and lashed out at the deceased, who was attempting to prevent him from driving. Two injuries resulted; one was fatal.

The offender was 26 years old at the time of the offence. He is of Aboriginal descent and had a history of childhood exposure to domestic violence and substance abuse. He was serving an Intensive Correction Order at the time of the offence, which was subsequently revoked.

  • Whether the guilty plea to manslaughter, entered at the earliest opportunity but on an indictment that also charged murder (with the jury resolving only the murder count), attracted the maximum 25% discount under Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • How to assess and apply the Bugmy principles regarding the offender's deprived background, Aboriginal descent, and social exclusion in fixing the appropriate sentence.
  • What weight to give to the offender's significant intoxication, remorse, criminal history, and the absence of premeditation in arriving at the overall sentence.
  • How to balance the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act, including deterrence, protection of the community, and rehabilitation, given the offender's subjective circumstances.

Decision

Rothman J found the objective seriousness of the offence to be in the mid-range for manslaughter. The death arose from a single impulsive act committed while the offender was severely intoxicated and was neither planned nor organised. While the use of a weapon and the level of intoxication were aggravating factors, the absence of any prior animosity and the lack of premeditation were relevant to the objective assessment.

The court accepted that the guilty plea to manslaughter was entered at the earliest available opportunity, despite the procedural complexity arising from the dual charges on the indictment. Rothman J determined that a 25% discount applied under the relevant provisions of the Crimes (Sentencing Procedure) Act, noting that the plea had been maintained consistently from arraignment in the Local Court through to the Supreme Court proceedings.

Applying the principles from Bugmy v The Queen (2013) 249 CLR 571, the court gave weight to the offender's deprived background, including childhood exposure to domestic violence and parental substance abuse, as factors that mitigate moral culpability. The court emphasised that such circumstances do not diminish the seriousness of the offence but do inform why a person may have developed poor impulse control and a limited capacity to manage stress.

Rothman J accepted that the offender's remorse was genuine, based on the letter to the court, his expressions to treating clinicians, and his immediate conduct after the offence including a text message to the deceased's mother. His prospects for rehabilitation were regarded as reasonable. These factors were weighed against his prior criminal history, the fact that he was on an Intensive Correction Order at the time, and the significant emotional harm caused to the deceased's family.

Orders Made

  • The offender was convicted of the manslaughter of Richard Eggins on 2 March 2019 at Orange, New South Wales.
  • Sentenced to imprisonment with a non-parole period of 4 years and 3 months, commencing 13 June 2019 and concluding 12 September 2023.
  • Balance of term: a further 3 years and 3 months, expiring 12 December 2026.
  • First eligible for release on parole: 12 September 2023.
  • The remarks on sentence, transcript, and psychiatric and psychological reports of Dr Martin and Dr Ashkar were directed to be provided to Corrective Services NSW.

Key Takeaways

  • A guilty plea to manslaughter entered consistently from the Local Court stage, on an indictment that separately charged murder, can attract the maximum 25% discount under Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where the plea mechanism does not strictly operate under s 153 of the Criminal Procedure Act 1986 (NSW).
  • Under Bugmy v The Queen, a deprived background involving childhood exposure to domestic violence and substance abuse is a mitigating factor relevant to moral culpability, but it does not reduce the objective gravity of the offence itself.
  • Where severe intoxication is present, the sentencing court treats it as both an aggravating circumstance (because the offender chose to become intoxicated) and as context relevant to the absence of planning or intent to kill.
  • Genuine remorse, accepted responsibility, and reasonable prospects of rehabilitation are factors that can operate in an offender's favour even where the offender has a prior criminal history and was subject to a community-based order at the time of the offence.
  • In manslaughter sentencing, the absence of premeditation and the spontaneous nature of a fatal act are relevant to where the offence sits on the spectrum of objective seriousness, even when the act was committed with a weapon.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(3), 25A(2), 25D(2)(a), 25E
- Crimes Act 1900 (NSW), ss 18(1)(a), 18(1)(b), 19A, 24
- Criminal Procedure Act 1986 (NSW), s 153
- Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), Sch 2, cl 5

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23
- Kentwell v R (No 2) [2015] NSWCCA 96
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Blacklidge (NSWCCA, Gleeson CJ, 12 December 1995, unreported)
- R v Engert (1995) 84 A Crim R 67
- R v Fernando (1992) 76 A Crim R 58
- R v Kilic (2016) 259 CLR 256; [2016] HCA 48
- R v Tailford [2021] NSWSC 248 (preliminary judgment)
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Kennedy v R [2010] NSWCCA 260
- R v Black (No 2) [2021] NSWSC 77
- R v Holmes (No 7) [2021] NSWSC 570