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Court of Criminal Appeal 26 July 2024

Britton v R

[2024] NSWCCA 138

HomicideTraffic & driving
CRIME APPEALS APPEAL AGAINST SENTENCE MANSLAUGHTER APPLICANT RE SENTENCED.

Citation: Britton v R [2024] NSWCCA 138
Court: Court of Criminal Appeal
Date: 26 July 2024
Judge(s): Stern JA at [1]; Rothman J at [8]; Yehia J at [163]

Background

The applicant, a mother, was convicted by jury of two counts of manslaughter following events in a car park in Nambucca Heads in September 2019. In the early hours of that morning, she drove her compact Daewoo sedan at a woman she believed was repeatedly punching her daughter, who lay face-up and motionless on the ground. Her stated intention was only to "nudge" that woman off her daughter. The vehicle mounted two kerbs and grass verges, became partially airborne, and landed on both victims, killing them. One victim was the assailant; the other was the applicant's own daughter.

The Crown accepted at trial that the applicant honestly believed it was necessary to act as she did to defend her daughter. The sole issue at trial was whether her response was reasonable. The jury rejected the defence of self-defence (including defence of another), and the applicant was convicted. The sentencing judge imposed an aggregate term of six years' imprisonment with a non-parole period of three years, nominating indicative sentences of five years for each offence.

On appeal, the applicant argued that the sentencing judge had made an identifiable error by failing to take into account certain key findings when assessing the objective seriousness of the offences, having considered those findings only in the separate analysis of moral culpability. The applicant also argued the sentence was manifestly excessive.

Legal Issues

  • Whether the sentencing judge erred by failing to take into account, when assessing objective seriousness, the applicant's motive (acting in defence of her daughter), her limited intention (to "nudge" the victim), and the finding that her response was not excessive by a significant margin.
  • Whether factors relevant to both objective seriousness and moral culpability must be considered under both heads separately, and whether failing to do so constitutes an identifiable error.
  • What sentence was appropriate on re-sentencing, including the correct assessment of objective seriousness, subjective circumstances, extra-curial punishment, remorse, and totality.

Decision

Ground 1: Identifiable error in assessing objective seriousness

The Court found that the sentencing judge had assessed the objective gravity of the offences as "considerable" without factoring in matters she later addressed only under moral culpability: that the applicant acted in defence of her daughter, that her intention was merely to "nudge" the victim, and that her response was not excessive by a significant margin (at [3]-[6]). The critical textual indicator was the sentencing judge's use of the word "otherwise" when she wrote that the identified mitigating considerations led to "a substantial reduction in [the applicant's] moral culpability for offending that was otherwise, considered objectively, of considerable seriousness." This language made clear that the objective seriousness assessment had been completed without those factors (at [4], [118]).

The Court confirmed that factors such as motive, provocation, and perceived self-defence may be relevant both to objective seriousness and to moral culpability, and that a sentencing judge is required to take them into account under both heads (at [113]-[114]). Failing to do so constitutes a failure to take into account a material consideration, which is an identifiable error authorising appellate intervention (at [93], [126]). The Court identified the error as either a complete omission to factor in the defensive motive, or at minimum an omission to factor in the finding that the response was not excessive by a significant margin (at [123]-[125]).

Re-sentencing: objective seriousness

Conducting the re-sentencing, the Court assessed the objective seriousness of the offending as well below mid-range, having regard to the exceptional circumstances (at [143]). The applicant was not the instigator of the violence, acted in a genuine (if ultimately unreasonable) belief that she had to protect her daughter from serious injury or death, intended only to make gentle contact with the victim, and her response fell only marginally outside what would have been reasonable (at [129]-[130]).

Re-sentencing: subjective circumstances and totality

The Court accepted and applied the sentencing judge's findings on the applicant's difficult childhood and its relevance under the principles in Bugmy, her good prospects of rehabilitation, and the low risk of re-offending (at [146], [152]). The Court gave some, though not equivalent, weight to remorse in relation to both victims, noting the applicant's attitude toward the death of Kazzandra did not reflect the same depth of shame as her grief over her daughter (at [153]). The Court accepted that the applicant's lifelong loss of her daughter, caused by her own act in seeking to protect her, constituted a form of significant extra-curial punishment beyond those factors already identified by the sentencing judge (at [154]-[155]). Applying the principle of totality, and noting that both deaths arose from a single act with no intention to inflict serious harm, the Court imposed an aggregate sentence of five years' imprisonment commencing 19 January 2023, with a non-parole period of two years and three months, finding special circumstances justified a shorter non-parole period than the statutory ratio (at [156]-[160]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 13 April 2023 quashed.
  • Convictions recorded for two counts of unlawful killing on 28 September 2019.
  • Aggregate sentence imposed: non-parole period of 2 years and 3 months commencing 19 January 2023 and expiring 18 April 2025, with a remainder of term of a further 2 years and 9 months expiring 18 January 2028.
  • Applicant first eligible for parole on 18 April 2025.
  • Applicant warned that the State may apply for orders under the Crimes (High Risk Offenders) Act 2006 (NSW) before the expiry of the sentence.

Key Takeaways

  • All factors bearing upon the seriousness of an offence must be taken into account when assessing objective seriousness, including motive, provocation, and perceived self-defence, even where those same factors are also relevant to the offender's moral culpability (at [2], [113]-[114]). Objective seriousness and moral culpability are separate but related concepts, each requiring its own evaluative exercise.

  • A sentencing judge commits an identifiable error where findings relevant to objective seriousness (such as the offender's defensive motive and the marginal excess of the response) are considered only in the moral culpability analysis. The Court of Criminal Appeal identified this error from the sentencing judge's own language, particularly the word "otherwise" preceding the phrase "considered objectively, of considerable seriousness" (at [4], [118], [126]).

  • Where an identifiable error is established, the appellate court proceeds to re-sentence and submissions on manifest excess, while technically falling away as a separate ground, remain relevant to the re-sentencing exercise (at [96], [127]).

  • In this case, the Court of Criminal Appeal assessed the objective seriousness of the manslaughter offences as well below mid-range, treating the genuinely defensive motive, limited intention, and only marginally excessive response as significant factors in that assessment (at [143]).

  • An offender's permanent loss of a family member, caused by their own act while attempting to protect that person, may constitute a form of extra-curial punishment warranting a sentencing reduction, beyond the other subjective mitigating circumstances already identified (at [154]-[155]).

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
- Director General of Department of Community Services; Re Sophie [2008] NSWCA 250
- Douglass v R [2001] NSWCCA 250; (2001) 34 MVR 35
- 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
- Paterson v R [2021] NSWCCA 273
- R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep)
- 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