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Court of Criminal Appeal 22 March 2023

Chandler v R

[2023] NSWCCA 59

Homicide
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS PAROLE PERIOD OF 13 YEARS OFFENDER STRUCK AND KILLED 18

Citation: Chandler v R [2023] NSWCCA 59
Court: NSW Court of Criminal Appeal
Date: 22 March 2023
Judges: Beech-Jones CJ at CL; Hamill J; N Adams J

Background

The applicant, a 22-year-old man on bail for unrelated charges, deliberately drove a stolen car through the fence of a suburban home and into the backyard while evading police pursuit in January 2015. The car struck and killed an 18-month-old girl who was playing in the yard with three other children. The sentencing judge found the applicant knew there was an appreciable risk of serious injury to persons in the backyard when he drove through the fence.

The applicant initially pleaded not guilty to murder and the alternative charge of manslaughter. He was later re-arraigned on manslaughter and pleaded guilty. At first instance, he was sentenced to 19 years' imprisonment with a non-parole period of 13 years. The sentencing judge took three further offences into account on a Form 1, including stealing a motor vehicle, driving unlicensed, and failing to stop for police while driving dangerously.

The sentencing judge found the applicant had a substantial criminal history involving car theft, dangerous driving, and police pursuits. He had experienced a profoundly deprived and dysfunctional upbringing and suffered from mental health issues including psychotic symptoms. The sentencing judge characterised the offending as sitting at the "gravest end of the spectrum" of involuntary manslaughter, applied a 5% discount for the late guilty plea, and found a "significant" risk of reoffending.

  • Whether the aggregate sentence of 19 years was manifestly excessive
  • Whether the sentencing judge erred in characterising the offence as being at the "gravest end of the spectrum" of involuntary manslaughter
  • Whether the sentencing judge erred in applying only a 5% discount for the late guilty plea
  • Whether the sentencing judge erred in his application of the Bugmy principles regarding the applicant's deprived upbringing, mental health issues, and relative youth

Decision

Manifest excess (majority: Hamill J and N Adams J; Beech-Jones CJ at CL dissenting)

The majority found the sentence manifestly excessive, though no single factor independently demonstrated error. Four considerations, taken together, revealed the sentence was outside the appropriate range. First, statistical analysis from the JIRS database showed the sentence was the second highest ever imposed for a single manslaughter offence in NSW, exceeded only by a case in the "worst category" attracting the maximum penalty. Second, it was the highest sentence ever imposed for a vehicular manslaughter involving one death, exceeding even indicative sentences for multiple vehicular manslaughter deaths. Third, the sentence was broadly comparable to murder sentences where the weapon was a motor vehicle. Fourth, the sentencing judge's application of Bugmy principles contained a latent error: although the judge acknowledged the applicant's moral culpability was "compromised to an extent" by his deprived upbringing, it was not apparent that this acknowledgement was reflected in a commensurate reduction in the starting point of 20 years.

Beech-Jones CJ at CL dissented, finding the circumstances of the applicant's offence were materially worse than any comparable vehicular manslaughter case. Unlike offenders who lost control of a vehicle or sped on public roads, the applicant deliberately drove through a residential fence while evading police, in a stolen vehicle, with knowledge of the appreciable risk of serious injury to those in the yard. His Honour considered this conduct fell just short of the mental element required for murder and, in those circumstances, the sentence was not outside the permissible range.

Objective seriousness

All three judges agreed the sentencing judge did not err in describing the offence as being "at the gravest end of the spectrum" of involuntary manslaughter. That characterisation placed the offending within a serious range without equating it with the worst category of manslaughter that would justify the maximum penalty. The court confirmed, consistent with DS v R; DM v R, that considerations such as the applicant's mental health and the fact that he lacked the mental element for murder are irrelevant to the assessment of objective seriousness.

Guilty plea discount

The court unanimously upheld the 5% discount for the late guilty plea. Significant deference attaches to a sentencing judge's assessment of the utilitarian value of a late plea, particularly where that judge was preparing to preside over the trial rendered unnecessary by the plea. No error in the exercise of that discretion was established.

Bugmy principles

The court unanimously held the sentencing judge did not err in approaching the applicant's upbringing, mental health, and youth holistically rather than separating those factors. Any artificial separation would have been susceptible to its own errors. The court confirmed that, given the circumstances of the offence, general and specific deterrence remained significant considerations notwithstanding the Bugmy findings.

Orders Made

  • Time for the applicant to apply for leave to appeal extended to 23 February 2022
  • Leave to appeal against sentence granted
  • Sentence imposed at first instance set aside
  • In lieu, the applicant re-sentenced to imprisonment of 15 years and 8 months, commencing 12 August 2017 and expiring 11 April 2033, with a non-parole period of 10 years and 6 months commencing 12 August 2017 and expiring 11 February 2028 (taking into account the Form 1 offences)

Key Takeaways

  • A sentence may be manifestly excessive where multiple statistical and comparative indicators, considered in combination, demonstrate it falls outside the appropriate range, even if no single factor independently establishes error in the instinctive synthesis.
  • Describing an offence as sitting at the "gravest end of the spectrum" of a particular category of offending is not equivalent to a finding that it falls within the "worst category" requiring the maximum penalty; those are distinct characterisations with different sentencing consequences.
  • Under the Bugmy principles, where a sentencing judge acknowledges that deprived upbringing reduces an offender's moral culpability, the reduction must be discernibly reflected in the sentence; a finding that culpability is "compromised to an extent" without a corresponding adjustment to the starting point constitutes latent error.
  • An offender's mental health issues and the absence of the mental element for murder are irrelevant to the assessment of objective seriousness, confirmed by the Court of Criminal Appeal consistently with DS v R; DM v R [2022] NSWCCA 156.
  • Substantial deference attaches to a sentencing judge's assessment of the utilitarian value of a late guilty plea, particularly where that judge was ready to conduct the trial that the plea made unnecessary.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Road Transport Act 2013 (NSW)

Cases
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- DS v R; DM v R [2022] NSWCCA 156
- Davidson v R [2022] NSWCCA 153
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Director of Public Prosecutions (NSW) v Abdulrahman [2021] NSWCCA 114
- Byrne v R; Cahill v R [2021] NSWCCA 185
- Crowley v R [2021] NSWCCA 45
- Attwater v R; Maris v R [2021] NSWCCA 17
- Clare v R [2008] NSWCCA 30
- Magro v R [2020] NSWCCA 25
- Kutschera v R [2015] NSWCCA 73
- Hallak v R [2014] NSWCCA 48
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- *R v