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23
Court of Criminal Appeal 7 June 2023

R v Eaton

[2023] NSWCCA 125

Also reported as (2023) 308 A Crim R 465
Homicide
CRIMINAL LAW SENTENCE INTENSELY SAD CASE DEATH OF FOUR YEAR OLD CHILD WHERE KAYAK CAPSIZED RESPONDENT EXTREMELY INTOXICATED

Citation: R v Eaton [2023] NSWCCA 125
Court: NSW Court of Criminal Appeal
Date: 7 June 2023
Judges: Hamill J (primary judgment); Lonergan J and Ierace J (agreeing)

Background

The respondent pleaded guilty to one count of aggravated dangerous navigation occasioning the death of a four-year-old child, contrary to s 52B of the Crimes Act 1900 (NSW). On the morning of 1 June 2021, the respondent drank a bottle of vodka before getting into a single-person kayak with the child and her dog. Neither wore a life jacket. The kayak capsized some distance from shore, the child drowned, and the respondent was later found with a blood alcohol concentration of approximately 0.245g/ml, nearly twice the legal limit.

The respondent was sentenced in the Newcastle District Court on 9 December 2022 to 2.5 years' imprisonment with a non-parole period of 18 months, incorporating a 25% discount for an early guilty plea. The sentencing judge delivered the verdict ex tempore (that is, orally and without a reserved written judgment) out of fairness to the child's family, who had maintained a presence throughout proceedings.

The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending the sentence was the product of legal error and was manifestly inadequate.

  • Whether the sentencing judge erred by using the respondent's subjective personal circumstances (deprived background and mental health conditions) to reduce the assessment of the offence's objective seriousness
  • Whether the sentencing judge failed to account for the respondent's alleged failure to render assistance to the victim
  • Whether the sentencing judge applied the dangerous driving guideline judgment inappropriately or gave an impermissible double discount for remorse and subjective circumstances
  • Whether the sentence was manifestly inadequate
  • Whether, even if error was established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene and increase the sentence

Decision

Ground 1: Objective seriousness versus moral culpability

The Court found that the sentencing judge erred in principle. His Honour had initially assessed the offence as falling at the "higher end" of objective seriousness, but then used the respondent's deprived background and mental health conditions to reduce that assessment to "mid-range." The Court of Criminal Appeal confirmed that objective seriousness and moral culpability are "separate but related" concepts. Subjective personal features of an offender may, in some circumstances, affect an assessment of objective seriousness, but this requires more than a simple or indirect causal connection between the personal feature and the offending conduct. The respondent's background affected her moral culpability, not the objective gravity of the offence itself.

A further error arose from the language adopted in the sentencing remarks. The 2002 guideline judgment for dangerous driving (R v Whyte) used the expression "moral culpability" when referring to what would now be understood as "objective criminality." Because the law has since clarified these as distinct concepts, the sentencing judge's adoption of the guideline's language led to the two being treated synonymously, compounding the error.

Failure to render assistance

The Court rejected this limb of the appeal. There was insufficient evidence before the sentencing court to establish that the respondent had failed to render assistance to the child after the capsize, and the judge's decision not to treat this as an aggravating feature was open on the evidence.

Ground 2: Manifest inadequacy and residual discretion

The Court found the sentence fell within an appropriate sentencing range. The sentencing judge had referred to the increased statutory maximum penalty, treated intoxication as an aggravating circumstance, applied the guideline appropriately by extension, and was entitled to find the respondent was genuinely remorseful. Despite identifying error on the first ground, the Court exercised its residual discretion to decline to intervene. The sentence was not inadequate, and having regard to the respondent's progress in custody and her difficulties in accessing medical treatment while imprisoned, the Court declined to increase it.

Orders Made

  • The prosecution appeal under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed in the District Court on 9 December 2022 was dismissed.

Key Takeaways

  • Objective seriousness and moral culpability are distinct sentencing concepts. A respondent's deprived background or mental health conditions may reduce moral culpability but will not, without a direct causal connection to the offending conduct, reduce the assessed objective seriousness of the offence.

  • The dangerous driving guideline judgment (R v Whyte) predates the modern clarification of this distinction and uses "moral culpability" to mean what courts now call "objective criminality." Sentencing courts adopting the guideline's language should take care not to conflate these concepts.

  • Sentencing judges are not required to place objective seriousness on a formalised numerical or categorical scale. Where a judge correctly identifies the relevant objective and aggravating factors, a mislabelling of the resulting assessment as "mid-range" rather than "high" may constitute error without materially affecting the outcome.

  • In dismissing the appeal despite finding error, the Court of Criminal Appeal affirmed the principle that it will not interfere to increase a sentence where that sentence falls within an appropriate range, particularly where the offender has made progress in rehabilitation and faces additional hardship in custody.

  • No error was established in the sentencing judge's refusal to treat the respondent's alleged failure to render assistance as an aggravating feature, where the evidentiary basis for that finding was insufficient.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 52A, 52B
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3)
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(3)

Cases
- R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38
- Chandler v R (2023) 103 MVR 392; [2023] NSWCCA 59
- Camilleri v R [2023] NSWCCA 106
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114
- Manojlovic v R; R v Manojlovic [2020] NSWCCA 315
- FL v R [2020] NSWCCA 114
- Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Buckley v R; R v Buckley [2012] NSWCCA 85
- Kelley v R [2021] NSWCCA 173; (2021) 97 MVR 74
- Mulato v R [2006] NSWCCA 282
- Paterson v R [2021] NSWCCA 273
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- R v Halloun [2014] NSWSC 1705
- R v AA [2017] NSWCCA