CRIMINAL LAW - Severity appeal - Manslaughter by criminal neglect - Crime in worst case category - sentence not manifestly excessive - no error in factual findings - child neglect - starvation death.
WHEALY JA: This is an application for leave to appeal in respect of a sentence imposed in the Supreme Court of New South Wales by his Honour Justice R A Hulme. The applicant had been convicted on 23 rd June 2009, after a trial for murder of his daughter, "Ebony", of the lesser charge of manslaughter. On 2 nd October 2009, he was sentenced to 16 years imprisonment, with a non-parole period of 12 years, the sentences to date from 17 th November 2007.
The maximum penalty for the offence of manslaughter is 25 years imprisonment. There is no standard non-parole period.
The applicant's wife had been tried with him. She was found guilty of murder and sentenced by Hulme J to life imprisonment.
In his comprehensive remarks on sentence, the learned sentencing judge described the basis of the Crown case brought against the applicant on the alternative charge of manslaughter:-
In relation to the alternative of manslaughter, the Crown case was one…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
BW v R [2011] NSWCCA 176
Case
[2011] NSWCCA 176
Decision Date
CaseChat Overview and Summary
BW was convicted of manslaughter by criminal neglect for the death of their child. The matter was heard on appeal in the High Court of Australia. The appeal was against the severity of the sentence imposed by the trial judge, with the appellant arguing that the sentence was manifestly excessive.
The legal issues before the court were whether the sentence was manifestly excessive, whether the trial judge had made any error in the factual findings, and whether the crime was in the worst case category for sentencing purposes. The court considered the severity of the neglect, the age of the child, and the failure of the appellant to take any steps to obtain medical assistance for the child.
The court held that the trial judge had not erred in any of the factual findings and that the crime was indeed in the worst case category for sentencing purposes. The court found that the sentence was not manifestly excessive and dismissed the appeal. The court noted that the neglect was of an extreme nature and that the appellant had failed to take any steps to obtain medical assistance for the child, despite knowing that the child was in a weakened state.
The final orders of the court were that the appeal against the severity of the sentence be dismissed. The sentence of imprisonment for a term of eight years, with a non-parole period of six years, was upheld. The appellant was also ordered to pay a fine of $5,000.