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Supreme Court 21 February 2025

R v Rose (No 2)

[2025] NSWSC 88

Homicide
CRIME SENTENCING MANSLAUGHTER UNLAWFUL AND DANGEROUS ACT WHERE OFFENDER HOMELESS AND ITINERANT OFFER TO PLEAD GUILTY BEFORE COMMITTAL

Citation: R v Rose (No 2) [2025] NSWSC 88
Court: Supreme Court of New South Wales
Date: 21 February 2025
Judge: Weinstein J

Background

The offender, a 50-year-old homeless man, was sentenced for the manslaughter of a 54-year-old man in Ballina on 5 February 2022. The offender had travelled to Ballina from Queensland in late 2021 and had been sleeping rough near the river since mid-January 2022. He had met the deceased for the first time on the day of the offending.

The offender and a woman he had recently met attended the deceased's unit to shelter from heavy rain, where the three shared a meal and alcohol. Later that afternoon, a violent incident occurred in the unit. The deceased was found bleeding heavily in a nearby laneway, having sustained serious facial and head injuries. He died in hospital the following day. His death was complicated by significant pre-existing conditions including liver cirrhosis, coagulopathy, and other chronic illnesses.

The offender pleaded guilty to one count of manslaughter under s 18(1)(b) of the Crimes Act 1900 (NSW) on the first day of his trial. He had not been charged with murder; the case proceeded on the basis of unlawful and dangerous act manslaughter.

  • What sentence was appropriate for an offence of manslaughter by an unlawful and dangerous act, where the deceased was unknown to the offender?
  • Whether the offender appreciated that his actions posed a risk of serious injury, and the relevance of that to objective seriousness.
  • Whether the offender abandoned the deceased when he was in need of medical assistance, and the weight to be given to that conduct.
  • How the offender's profound background of deprivation and disadvantage affected his moral culpability and the weight to be accorded to general and specific deterrence.
  • The appropriate discount for an offer to plead guilty made before committal but formalised on the first day of trial.
  • Whether the offender's remorse was genuine.

Decision

Weinstein J assessed the objective seriousness of the offending as falling in the mid-range for manslaughter. The court accepted that the offender may not have fully appreciated that his conduct posed a risk of serious injury, given the context of intoxication and the circumstances of the attack. The fact that the deceased was found alone in a laneway, without any assistance having been sought by the offender, was treated as an aggravating feature. The offender's statements to third parties later that evening, in which he described what he had done, formed part of the agreed facts and informed the court's understanding of the offending.

Weinstein J gave significant weight to the offender's background of severe disadvantage. The court received evidence of a childhood marked by trauma, including sexual abuse, as well as a long history of homelessness, substance dependence, and mental health difficulties. Applying the principles from both Bugmy v The Queen (1990) and Bugmy v The Queen (2013), the court found that this background substantially reduced the offender's moral culpability and diminished the weight to be given to both general and specific deterrence.

The court found that the offender's remorse was genuine, noting his early indication of a willingness to plead guilty. Although the plea was not formally entered until the first day of trial, the court was satisfied that the offender had offered to plead guilty well before committal. Weinstein J applied a 25% discount for the plea of guilty, reflecting the utilitarian benefit and the timing of the offer.

Having applied the instinctive synthesis approach required by Markarian v The Queen and Muldrock v The Queen, Weinstein J imposed a sentence of full-time imprisonment. The court was not satisfied that any non-custodial alternative was appropriate given the nature of the offending. The court also directed that the offender be advised of the Crimes (High Risk Offenders) Act 2006 (NSW) and its potential application.

Orders Made

  • The offender was convicted of manslaughter contrary to s 18(1)(b) of the Crimes Act 1900 (NSW).
  • Sentence of imprisonment of 6 years and 4 months imposed (reflecting a 25% discount for the guilty plea; the undiscounted head sentence was 8 years and 6 months).
  • Non-parole period of 3 years and 10 months imposed.
  • Sentence backdated to commence 18 February 2022; head sentence to expire 17 June 2028.
  • Eligible for release to parole on 17 December 2025.
  • The offender was directed to be advised of the Crimes (High Risk Offenders) Act 2006 (NSW) and its implications, pursuant to s 25C of that Act.

Key Takeaways

  • Profound childhood trauma and longstanding homelessness can substantially reduce an offender's moral culpability for serious violence, consistent with the High Court's approach in both iterations of Bugmy v The Queen, and this reduction flows through to diminished weight for both general and specific deterrence.
  • Under the instinctive synthesis approach, a mid-range manslaughter by unlawful and dangerous act, where the offender did not necessarily appreciate the risk of serious injury, attracted an undiscounted head sentence of 8 years and 6 months in this case, with the specific facts and subjective circumstances driving the result.
  • Where an offender leaves a seriously injured victim without seeking medical assistance, that conduct can be treated as an aggravating circumstance in sentencing.
  • A 25% discount for a guilty plea was available where the offender had offered to plead before committal, even though the plea was not formally entered until the first day of trial, reflecting the practical and utilitarian benefit of the plea.
  • Sentencing courts are required to notify offenders of the existence and potential application of the Crimes (High Risk Offenders) Act 2006 (NSW) upon conviction for manslaughter, pursuant to s 25C of that Act.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 18(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Crimes (High Risk Offenders) Act 2006 (NSW), s 25C

Cases
- Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
- R v Tuala [2015] NSWCCA 8
- R v Erazo [2016] NSWCCA 139
- Luque v R [2017] NSWCCA 226
- Perkins v R [2018] NSWCCA 62
- Nasrallah v R [2021] NSWCCA 207
- DH v R [2022] NSWCCA 200
- R v Staff [2024] NSWSC 1471
- R v Bouggas [2015] NSWSC 914
- R v Syme [2015] NSWSC 1609
- R v Johnson (No 5) [2017] NSWSC 1169
- R v Edwards [2022] NSWDC 110
- R v Millwood [2012] NSWCCA 2
- R v MJB [2014] NSWCCA 195
- Dulihanty v R [2013] NSWCCA 275