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Court of Criminal Appeal 23 September 2003

Hill v R [2003] NSWCCA 16 revised - 28

[2003] NSWCCA 16

Homicide
CRIMINAL LAW: EVIDENCE CREDIBILITY SATISFACTION OF BURDEN OF PROOF FINDINGS IN AGGRAVATION OF SENTENCE PARITY

Citation: Hill v R [2003] NSWCCA 16 revised - 28/11/2003
Court: NSW Court of Criminal Appeal
Date: 23 September 2003
Judges: Meagher JA; Hulme J; Hidden J

Background

The applicant pleaded guilty to the manslaughter of a two-year-old child and was sentenced by Ireland AJ to eight years' imprisonment with a non-parole period of six years. At the time of the child's death, the applicant had been living with the child's mother, who also pleaded guilty to manslaughter and received a sentence of three years.

The sentencing judge made findings that the applicant had caused a significant head injury to the child on or about 18 April 2000 and had subsequently exercised undue influence over the child's mother, preventing her from seeking medical attention. The judge treated both of those matters as circumstances of the gravest aggravation. The child died on 27 April 2000.

The applicant sought leave to appeal against the severity of the sentence, challenging the aggravating findings and raising issues of parity with the mother's sentence.

  • Whether the sentencing judge was entitled to find, to the criminal standard of proof beyond reasonable doubt, that the applicant had caused the child's initial head injury and had prevented the mother from seeking medical treatment, on the basis of the mother's evidence
  • Whether the mother's credibility was so poor that those adverse findings could not be sustained
  • Whether the sentence was excessive having regard to parity with the three-year sentence imposed on the mother

Decision

The Court divided on the central credibility question. Meagher JA would have dismissed the application, reasoning that the sentencing judge, as the tribunal of fact, had heard the mother give evidence and was entitled to accept her account. His Honour regarded it as irrelevant that the mother had been a bad parent or had told numerous lies on prior occasions; the judge believed what she said in the witness box, and that finding was open to him.

Hulme J (with Hidden J agreeing) reached the opposite conclusion and allowed the appeal. Hulme J identified several features that required the mother's evidence to be scrutinised with particular care: she was an accessory to the child's death, she had a significant personal interest in implicating the applicant, and she had lied repeatedly about the relevant events on many earlier occasions. Taken together, those matters meant her credibility was so poor that the Crown had not discharged its burden of proving the aggravating facts beyond reasonable doubt.

Hidden J added that, notwithstanding the deference ordinarily owed to an experienced sentencing judge who has seen and heard witnesses, the findings adverse to the applicant produced a grave sense of unease. Because those findings were made in aggravation of sentence, the criminal standard applied, and Hidden J agreed with Hulme J that the standard had not been met.

On parity, Hulme J took the view that the sentence, having been built on unsustainable aggravating findings, required intervention. The Court resentenced the applicant to six years with a non-parole period of four and a half years, a figure also influenced in part by parity considerations, while noting that the mother's sentence had itself been inappropriately light.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence allowed
  • Sentence imposed by Ireland AJ on 2 November 2001 quashed
  • Applicant sentenced to imprisonment for six years, including a non-parole period of four and a half years, both periods to commence on 25 May 2000 (corrected by the Court on 28 November 2003 from the originally stated date of 25 May 2002)

Key Takeaways

  • Where factual findings are made in aggravation of sentence, the Crown bears the burden of proving those facts beyond reasonable doubt; findings that do not meet that standard cannot stand.
  • A witness's prior repeated lies, combined with a personal interest in implicating an accused, may so undermine their credibility that a sentencing court is not entitled to rely on their evidence to the criminal standard, even where the sentencing judge has accepted that evidence.
  • The majority of the Court of Criminal Appeal confirmed that deference to a sentencing judge's assessment of witness credibility is not absolute, particularly where the overall picture of a witness's conduct makes acceptance of their evidence unreasonable.
  • Parity between co-offenders remains a relevant consideration on sentence appeal, even where differences in the offenders' culpability exist, and a co-offender's inappropriately light sentence does not automatically preclude a parity argument from having some weight.
  • The Court divided three ways on the appropriate disposition, with Meagher JA dissenting; the majority position prevailed on both the credibility point and the sentencing outcome.

Legislation and Cases Referenced

Cases:
- M v R (1994) 181 CLR 487
- Fox v Percy (2003) 77 ALJR 989
- Beale v GIO of NSW (1997) 48 NSWLR 430
- R v Wilkinson [1999] NSWCCA 248

Legislation:
- Criminal Appeal Act (NSW), s 6(3)