BW v R

Case [2011] NSWCCA 176


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: BW v R [2011] NSWCCA 176
Hearing dates:4 February 2011
Decision date: 23 February 2011
Before: Whealy JA, RS Hulme, Harrison JJ
Decision:

(1) Leave to appeal granted

(2) Appeal dismissed

Catchwords: 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.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 s3A
Cases Cited: R v BW & SW [No 3] [2009] NSWSC 1043
Taber v R; Styman v R (2007) 170 A Crim R 427 at [102]
R v Forbes (2005) 160 A Crim R 1 [133] - [134]
R v Green [1999] NSWCCA 97 at [24]
R v Vongsouvanh [2004] NSWCCA 158 at [38]
R v Alexander (1994) 74 A Crim R 141 at 144
R v McGuire (Unreported, NSWCCA, 30th August 1995)
R v Troja (Unreported, NSWCCA, 16th July 1991)
Clare v The Queen (2008) 181 A Crim R 450
R v Guider [2002] NSWSC 756
R v Hoerler (2004) 147 A Crim R 520
Taber v R; Styman v R (2007) 170 A Crim R 427
R v Thomas Sam and Manju Sam [No 18] [2009] NSWSC 1003; 149 A Crim R 38
Veen v The Queen [No 2] (1988) 164 CLR 465 at 478
Ibbs v The Queen (1987) 163 CLR 447 at 451.
Gilson v The Queen (1991) 172 CLR 353 at 364
Baumer v The Queen (1988) 166 CLR 51 at 57
R v Dodd (1991) 57 A Crim R 349
Veen v The Queen (1979) 143 CLR 458
Category:Principal judgment
Parties: "BW" (Applicant)
Regina (Respondent)
Representation: J Stratton SC (Applicant)
P Ingram SC (Crown)
Legal Aid Commission (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s):2008/16466
Publication restriction:Nil
 Decision under appeal 
Jurisdiction:
9111
Citation:
[2009] NSWSC 1043
Date of Decision:
2009-10-02 00:00:00
Before:
R A Hulme J
File Number(s):
2008/16466
2008/15683

Judgment

  1. 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.

  1. The maximum penalty for the offence of manslaughter is 25 years imprisonment. There is no standard non-parole period.

  1. The applicant's wife had been tried with him. She was found guilty of murder and sentenced by Hulme J to life imprisonment.

  1. 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…

Continue reading BW v R

Sign in free to access the full text

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.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.