Citation: Britton v R [2024] NSWCCA 138
Court: Court of Criminal Appeal, NSW
Date: 26 July 2024
Judges: Stern JA; Rothman J; Yehia J
Background
The applicant was a mother who, in the early hours of 28 September 2019, witnessed her daughter lying motionless on the ground in a shopping centre car park in Nambucca Heads while another woman repeatedly punched her. In an attempt to protect her daughter, the applicant drove her motor vehicle towards the attacker, intending only to nudge her away. The applicant instead crushed and killed both her daughter and the attacker.
Following a jury trial in the District Court of NSW, the applicant was convicted on 31 October 2022 of two counts of manslaughter under s 24 of the Crimes Act 1900 (NSW). On 13 April 2023, the sentencing judge imposed an aggregate term of six years' imprisonment, commencing 19 January 2023, with a non-parole period of three years. Indicative sentences of five years were nominated for each offence.
The applicant sought leave to appeal against that sentence on two grounds: first, that the sentencing judge failed to take into account relevant considerations when assessing the objective seriousness of the offences; and second, that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by failing to take into account relevant considerations, including the applicant's protective motive and the perceived necessity of her actions, when assessing the objective seriousness of the offences.
- Whether factors such as motive, provocation, and perceived self-defence are relevant not only to moral culpability but also to the separate assessment of objective seriousness.
- Whether the aggregate sentence was manifestly excessive (this ground was not ultimately determined).
Decision
The Court granted leave to appeal, allowed the appeal on Ground 1, and resentenced the applicant. Ground 2 (manifest excess) was rendered unnecessary to consider once error was established under Ground 1.
On the central question, the Court confirmed that objective seriousness and moral culpability are distinct concepts in sentencing, but that certain factors can be relevant to both. Provocation, motive, mental illness, and perceived self-defence may bear upon the objective seriousness of an offence, not merely upon an offender's moral culpability. The sentencing judge was therefore required to consider these matters at the objective seriousness stage of the analysis, not only when addressing moral culpability.
The sentencing judge had made findings that the applicant's overwhelming desire to protect her daughter had a serious bearing on her decision to act; that she was not seeking to engage in violence but to protect; that she intended only to nudge the attacker away; and that her response to the threat was "not excessive by a significant margin." However, the sentencing judge treated these findings as considerations going solely to the reduction of the applicant's moral culpability, describing the offending as otherwise of "considerable seriousness" when viewed objectively. The word "otherwise" made clear that the protective motive and related findings were not factored into the objective seriousness assessment.
Stern JA observed further that, although the sentencing judge briefly referred to the applicant's perceived necessity to act when considering a submission on provocation, the structure of the remarks on sentence showed that her Honour intended to "return" to those matters under moral culpability. Nothing in the reasons suggested the finding that the response was "not excessive by a significant margin" was ever brought to bear on the objective seriousness assessment. The Court concluded this omission constituted a failure to take into account a material consideration, amounting to an identifiable error in the sentencing exercise.
Orders Made
No orders were made in this decision.
Key Takeaways
- Objective seriousness and moral culpability are separate but related concepts in sentencing. A sentencing court must assess them distinctly, but certain factors, including motive, provocation, and perceived self-defence, may be relevant to both assessments and must be brought to bear on each.
- An identifiable error arises where a sentencing judge takes mitigating factors into account only when assessing moral culpability, but treats the offending as "otherwise" of considerable objective seriousness, leaving those same factors out of the objective seriousness analysis entirely.
- The Court of Criminal Appeal confirmed the approach taken in BM v R [2019] NSWCCA 223: there can be error in failing to consider matters relevant to objective seriousness even where those same matters were addressed under moral culpability.
- Sentencing remarks must be read as a whole to determine whether a relevant consideration was genuinely applied at the correct analytical stage. The structure and language of a sentencing judge's reasons, including language such as "I will return to" or "otherwise," can reveal that a factor was reserved for one stage and not carried through to another.
- Where an appeal court finds an identifiable error under one ground of appeal in a sentence challenge, it is not obliged to proceed to consider a separate ground of manifest excess.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 24
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 22A, 23
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (High Risk Offenders) Act 2006 (NSW)
Cases
- BM v R [2019] NSWCCA 223
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
- Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Blacklidge (NSWCCA, Gleeson CJ, 12 December 1995, unreported)
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Russell v R (2023) 112 NSWLR 533; [2023] NSWCCA 272
- Tepania v R [2018] NSWCCA 247
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14