ES v R

[2019] NSWCCA 262

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	ES v R [2019] NSWCCA 262
Hearing dates:	28 October 2019
Decision date:	01 November 2019
Before:	Simpson AJA at [1]; Fullerton J at [1]; Adamson J at [1].
Decision:	(1) Leave to appeal granted. (2) Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentencing – alleged errors in factual findings – whether denial of procedural fairness regarding assessment of utilitarian discount outside range contended by parties – manifest excess – “weight” given by sentencing judge to relevant factors
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 32, 33 Crimes Act 1900 (NSW), ss 24, 59 Criminal Appeal Act 1912 (NSW), s 5
Cases Cited:	R v Baker [2000] NSWCCA 85 Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 Baroudi v R [2007] NSWCCA 48 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Button v R [2010] NSWCCA 264 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, Grove and Ireland JJ, 12 December 1995, unrep) R v ES (No 2) [2018] NSWSC 1708
Category:	Principal judgment
Parties:	Regina ES (Applicant)
Representation:	Counsel: B Hatfield (Crown) G James QC (Applicant)   Solicitors: Director of Public Prosecutions (NSW) (Crown) Oxford Lawyers (Applicant)
File Number(s):	2015/335226
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law – Crime Citation: [2018] NSWSC 1708 Date of Decision: 9 November 2018 Before: McCallum J File Number(s): 2015/16273

Judgment

1. THE COURT: ES (the applicant) seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed on him by McCallum J on 9 November 2018. He was sentenced for the offence of manslaughter and requested that a further offence, assault occasioning actual bodily harm (s 59(1) of the Crimes Act 1900 (NSW)), be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence imposed, which commenced on 14 November 2015, was for a term of eight years’ imprisonment with a non-parole period of five years. The maximum penalty for an offence of manslaughter is 25 years’ imprisonment: s 24 of the Crimes Act.

The grounds of appeal

2. The applicant seeks leave to appeal on the following five grounds:

“1.    The Court erred in concluding that this was not an isolated loss of control and increasing the weight to be given to personal/specific deterrence in this way.

2.    The Court erred in not giving weight or giving insufficient weight to the Applicant's disadvantaged upbringing as a factor that reduced the moral culpability of the Applicant.

…

[Grounds 3 and 4 were not pressed]

5.    The Court erred in imposing a 12% discount for the utilitarian value of the plea of guilty.

6.    The sentence imposed by the Court was manifestly excessive.

7.    The sentencing proceedings miscarried because the Court failed to provide procedural fairness to the Applicant in relation to the discount on sentence.”

The facts

3. Liana (a pseudonym), the applicant’s daughter, died as a result of the applicant shaking her when he was trying to settle her. She was not yet three months old. The applicant was sentenced on the basis of agreed facts, which are reflected in the following extract from the sentencing judgment, R v ES (No 2) [2018] NSWSC 1708:

“Circumstances of the offence

…

[4]     … On 13 November 2015, the offender was at home with his wife (Liana’s mother) and Liana.

[5]     Liana awoke at around 9:30 am and was fed and changed by her mother, who then placed her back in her cot. The mother watched her for more than an hour and observed her to be playing, giggling and otherwise responsive. The offender was still asleep at that time.

[6]     At around 10:30 am, Liana started crying. The mother tried to comfort her but she continued crying. The offender woke up and took Liana from the mother, telling her to get another bottle ready. The mother told the offender she had given Liana her milk not long ago and that she thought Liana wanted to sleep. The offender insisted that she go and prepare another bottle. The offender moved to the lounge room with Liana in his arms. Whilst the mother was preparing the bottle, she could not see the offender.

[7]     At one point, Liana’s crying increased and the mother went to the kitchen door where she could see the offender. He was holding Liana, talking to her and trying to calm her down. The mother then returned to preparing the bottle in the kitchen where she remained for about 4 or 5 minutes. Suddenly, the mother heard Liana’s crying get much louder; she described the crying as being “from the throat” and said that it was deep, loud and unusual. Suddenly, the crying stopped completely.

[8]     As soon as she heard the crying stop, the mother went into the lounge where she saw the offender holding Liana underneath her arms. He had a shocked look on his face. The mother noticed that Liana was ‘floppy’ and was not moving; her eyes were closed and did not open again. The mother saw the offender ‘tapping’ Liana on the back, apparently trying to get her to breathe.

[9]     At 10:39 am, the offender rang ‘000’ to request an ambulance. However, due to communication difficulties, he was unable to provide sufficient information for an ambulance to be despatched and he terminated the call. The operator called back and asked what had happened. The offender responded ‘my baby, she crying and she just stop…doesn’t feel good, she just cry then stop…’ The offender then decided to drive the short distance to Liverpool Hospital.

[10]     The offender drove while the mother nursed Liana in the passenger seat. The offender carried the child into the emergency department at 10:52 am. She was not breathing and had no pulse. She was stabilised but remained in a critical condition, having periods of high heart rate and high blood pressure thought to be caused either by seizures or by intermittent over-activity of the nervous system consistent with severe brain injury. The mandatory report was made to the Child Protection Hotline and detectives attended the Hospital.

[11]     Chest x-rays revealed old, healed and healing rib fractures. Medical staff also noted various bruises across Liana’s face, torso and arms. The offender admits that he inflicted some of those bruises prior to his shaking of her on the morning of 13 November 2015. While Liana was being resuscitated, the offender said to hospital staff:

‘you will find a bite mark on Liana. I’m trained as a life-guard in my country and we were taught to inflict some pain to get a response…you will find my teeth marks on her because I was trying to get a response…’

[12]     The offender also said ‘sometimes I shake her.’

[13]     When asked what he had done, he mimed raising Liana up with his arms and shaking. He then mimed putting her over his shoulder and patting her on the back. He said he bit her to get a response. He also said that he had bitten her more than once on the way to the hospital to get a response.

[14]     The mother denies the offender bit the victim on the way to hospital. She cannot refute that the offender may have bitten the baby’s back at the apartment prior to setting out for the hospital.

[15]     Liana was transferred to the Children’s Hospital at Randwick where she was found to have brain and cervical spine injuries consistent with having been shaken. After consultation with the mother, her life support was turned off on 17 November 2015 and she died shortly thereafter.

[16]     A post mortem examination concluded that the direct cause of death was the consequences of closed head injury and that the bruises across Liana’s torso, face and arms were of differing ages.”

4. The agreed facts included those relevant to injuries sustained by Liana before 13 November 2015 as follows:

“[10]   [Liana’s mother] reported to police that, before the fatal injuries to the child on 13/11/15, she had an argument with the offender in the following circumstances:

‘...it was exactly that day (7/11/15) that I realised that whenever [the applicant] was holding the baby he was sucking the baby and since I could not recognise which it was, a bite or a sucking bruise or mark...’

(She said she got angry and remonstrated with him for causing the bruise).

[11]   On 8/11/15, [Liana’s mother] and [the applicant] had friends over for a BBQ. Rose … was holding the baby and [Liana’s mother] pointed to the large bruise on the baby's left cheek stating: ‘her- dad'. The offender said: ‘Yeah but I love her too much. What can I do?’ Ms B…’s son was filming the scene on his mobile phone. A still of that video is Attachment 1.

Other pre-existing injury

[12]   When the victim was X-rayed in the course of treatment after admission on 13/11/15, she was found to have sustained ‘multiple old rib fractures... of varying ages...’. In the opinion of the post mortem pathologist, Dr Brouwer, the fractures were consistent with the result of ‘static loading from compression and/or deformation of the chest when encircled by adult hands…’ It is unlikely that any of the fractures were caused at birth.

[13]   [Liana’s mother] has denied ever harming the victim. No-one else has ever minded [Liana]. [The applicant] does not dispute these two statements.”

The procedural history

5. The procedural history of the matter, which is relevant to grounds 5, 6 and 7, is summarised below.

6. On 14 November 2015 the applicant was arrested. He was charged with murder and assault occasioning actual bodily harm. In December 2017, the applicant’s solicitors entered into negotiations with the Director of Public Prosecutions (NSW) (DPP) on the basis that the applicant would be prepared to plead guilty to manslaughter and assault occasioning actual bodily harm. The DPP indicated a readiness to accept a plea to those offences but only on the basis of a particular set of agreed facts. The applicant refused to plead guilty to those offences on the basis of the agreed facts proposed by the DPP. He maintained his plea of not guilty to both charges.

7. The applicant was committed for trial on 31 January 2018. The matter was listed in the arraignments list in this Court on 2 March 2018 but was adjourned to 6 April 2018 because of the applicant’s need to obtain different representation.

8. The applicant was arraigned on 6 April 2018 on an indictment which charged two counts, murder and assault occasioning actual bodily harm, to which he pleaded not guilty. Initially, the trial was listed for hearing on 15 October 2018 but the date was brought forward to 30 July 2018. On 24 May 2018 the matter came before McCallum J who was to be the trial judge. The matter was adjourned to 5 July 2018 for pre-trial directions. On 16 July 2018 her Honour was informed by the parties that they were having discussions with a view to a plea to manslaughter being entered. The matter was adjourned until 19 July 2018 at which time her Honour was asked to adjourn the matter until 25 July 2018. The matter was further adjourned until 26 July 2018.

9. On 26 July 2018, the applicant was arraigned on an amended indictment. He pleaded guilty to manslaughter (count 2 on the amended indictment). The Court was notified that count 3 on the amended indictment, assault occasioning actual bodily harm, had been included on a Form 1 pursuant to s 32 of the Crimes (Sentencing Procedure) Act. The Crown informed McCallum J that, on the basis that her Honour accepted the Form 1, the plea of guilty to manslaughter and the Form 1 would be in full discharge of the indictment containing the murder count. The Crown tendered the statement of agreed facts. Her Honour signed the Form 1. McCallum J fixed the sentence hearing for 12 October 2018.

10. It is common ground that the facts ultimately agreed upon were different from either those offered by the applicant or those proposed by the DPP in 2017. There is no evidence as to the different versions of the proposed facts, which, following negotiation, led to the agreed facts.

The sentence hearing

Evidence adduced by the Crown at the sentence hearing

11. The Crown tendered the agreed facts (summarised above by McCallum J). Attachment 1 to the agreed facts was a still photograph from a video taken on 8 November 2015 which showed Liana’s mother holding her and pointing to a large bruise on her left cheek. Liana’s mother said, “Her Dad”, to which the applicant responded, “Yeah, but I love her too much. What can I do?”

12. Attachment 2 to the agreed facts is a “Scan Medical Protocol” in which Dr Garside, a treating paediatrician child protection consultant at the Children’s Hospital documented external bruises observed on Liana’s body. Attachment 3 to the agreed facts is a series of photographs of the bruises on Liana’s face and body.

13. The Crown also tendered the applicant’s criminal history, which recorded no prior offences, and a custodial history. Further, the Crown tendered a victim impact statement from Liana’s mother (the applicant’s wife) as to her difficulties in becoming pregnant and her grief at the loss of her daughter.

Evidence adduced by the applicant at the sentence hearing

14. The applicant did not give evidence at the sentence hearing. Mr James QC, who appeared on his behalf at the sentence hearing and in this Court, tendered two expert reports: a report of Dr Richard Furst, psychiatrist, and a report of Sam Borenstein, clinical psychologist. Each report set out the history given by the applicant and expressed opinions based on that history and the applicant’s presentation. It is necessary, for the purposes of ground 2, to summarise those parts of the reports which describe the applicant’s background and upbringing.

The report of Dr Furst

15. Dr Furst recorded that the applicant, who was born in Tehran, was the fifth of six children. His father worked as an accountant in various businesses. His mother stayed at home and looked after the children. When the applicant was 7 or 8 his father died of a heart attack. After his father’s death, the applicant was beaten by his oldest brother. There was no indication of either developmental problems or learning difficulties and the applicant completed primary and middle school in Tehran, leaving school when he was 17 or 18 years of age.

16. Subsequently, the applicant was arrested for stealing and held in detention at the Central Police Base for three months where he was beaten and raped by a police officer. At this time the applicant attempted suicide by cutting his left wrist. He was eventually released from police custody when his uncle “bailed [him] out”. The applicant relieved his emotional distress as a result of the trauma suffered in detention by taking heroin, cannabis and opium. He was exempted from military service in Tehran because of his mental health problems. He had difficulty with relationships as a consequence.

17. He converted to Christianity to assist him to cease his drug use. As a consequence of his religion, he was arrested by the Iranian Intelligence Service. He managed to flee to Malaysia and, in May 2013, gained passage on a boat from Indonesia to Australia. On the voyage, the boat started taking on water. The applicant was rescued by the Royal Australian Navy. He spent some time in immigration detention before being released in Queensland, where he met Liana’s mother. They came to Sydney together, married and tried to have a child. The applicant has not taken drugs since coming to Australia. Prior to his arrest in 2015 he sought neither psychiatric nor psychological assistance.

18. Dr Furst opined that the applicant met the criteria for post-traumatic stress disorder (PTSD), substance use disorder (in remission) and borderline personality traits. Dr Furst described PTSD as “a severe and chronic anxiety disorder that develops following exposure to one or more traumatic events”. Dr Furst concluded:

“In my opinion, [the applicant] was poorly equipped for the demands of parenting and the associated stresses he found himself facing on a daily and nightly basis at the time of his offending as a consequence of his inexperience and his mental conditions. In my opinion, his untreated post-traumatic stress disorder in particular, with associated symptoms of anxiety, insomnia and underlying borderline personality traits likely contributed to his excessive, impulsive and violent reaction when he shook [Liana] on 13/11/15, causing the fatal injuries … He has accepted his guilt in relation to his offending and has expressed remorse accordingly. He remains depressed and anxious.”

The report of Mr Borenstein

19. Mr Borenstein recorded a similar history to that recorded by Dr Furst. He opined:

“Those who suffer with chronic PTSD are at greater risk of suffering emotional regressions when subject to stress, as was the case for [the applicant] leading up to and at the time the incident occurred.”

Further material tendered on behalf of the applicant

20. The applicant also tendered various documents, including a letter of apology, records of an assault he has sustained in custody, letters from chaplains and priests who have known him in custody and correspondence courses he has undertaken, including in Bible studies.

Relevant submissions made at the sentence hearing

21. It was submitted on behalf of the applicant at the sentence hearing that the applicant’s PTSD “obviously contributed” to his offending conduct. The applicant contended that the Form 1 offence should be regarded as an overly forceful expression of affection by the applicant towards Liana and that the shaking which led to her death was an “isolated” incident.

22. It was also contended that her Honour ought make a finding of special circumstances.

23. As to the plea of guilty, the applicant submitted that the discount for the plea ought be 20-25%.The Crown submitted orally in the sentence hearing that the discount for the plea “should be higher than 15%”.

24. Her Honour, after hearing the Crown on the discount for the plea, said to the Crown:

“In any event, you are not terribly far apart, but the top of your suggested range is the bottom of his.”

The sentencing judgment

25. Her Honour recorded that the basis for the plea to manslaughter was unlawful and dangerous act and set out the summary of agreed facts which has been extracted above. McCallum J referred to the reports of Dr Furst and Mr Borenstein and noted the Crown’s submission that they ought be given little weight because the applicant did not give evidence at the sentence hearing. Her Honour found that the accounts given to both experts were consistent and not inherently implausible and recorded that she was satisfied that she should “proceed on the basis that the premises for their opinions may largely be accepted”.

26. Her Honour summarised the reports of Dr Furst and Mr Borenstein, the contents of which have been noted above.

27. When assessing the seriousness of the offending conduct and the applicant’s moral culpability, her Honour said, at [30]:

“…the offence remains one of some seriousness. I cannot be satisfied beyond reasonable doubt that the offender fully appreciated the dangerousness of his act. I also accept that the offence was probably the result of a sudden loss of self-control in challenging circumstances. The impact of the offender’s PTSD on his capacity to manage the stresses of early parenting must be taken into account in this context and reduces his moral culpability for the offence. However, it is clear (beyond reasonable doubt) from the medical evidence that the shaking incident must have involved some force.”

28. Her Honour addressed the attachments to the agreed facts and noted that the “old, healed and healing rib fractures described by [Dr Garside] remain unexplained and must be disregarded”. McCallum J recorded, in relation to the Form 1 offence, that the applicant admitted that he had inflicted particular bruises on Liana. Her Honour noted the Crown’s submission that the Form 1 offence showed a disregard for the child’s comfort and safety and showed that the subsequent shaking (which led to her death) was “not an isolated act of violence”. The sentencing judge referred to attachment 1 to the agreed facts and said, at [35]:

“It is not possible to be satisfied beyond reasonable doubt that bruises inflicted before the shaking incident were not inflicted in that way, as overly forceful expressions of affection rather than indicating some form of cruelty. However, those same agreed facts should have warned the offender of the child’s vulnerability and that he was being excessively forceful in his manner of dealing with her. His response to the mother’s remonstration reveals a measure of arrogance or at least disregard for the mother’s concern for the child. That evidence takes the case slightly outside the category of a wholly isolated loss of control and indicates that personal deterrence must be given some weight in this case.”

[Emphasis added.]

29. The sentencing judge proceeded to address mitigating factors. Her Honour found that the applicant had no prior convictions in Australia, and that the material, which relates to his time in Australia, “indicates that he is well regarded and of good character”. Her Honour accepted the applicant to be remorseful and found that he had “reasonable prospects of rehabilitation”. Her Honour found that his time in custody will be more onerous as he has limited command of English, little contact with family and friends and receives no visitors other than prison chaplains. Her Honour referred to the assault on the applicant in custody and also his untreated PTSD which she found would exacerbate his experience of fears for his safety in the prison environment.

30. Her Honour specified a discount of 12% for the plea of guilty for the following reasons:

“[39]   It is necessary to have regard to the offender’s plea of guilty. He was initially charged with murder. The plea of guilty to manslaughter was entered a few days before the date fixed for trial after the Crown presented an amended indictment which included that offence as a separate count. After the offender indicated his intention to plead guilty to that count on the basis of a dangerous and unlawful act, the Crown indicated its election not to proceed further on the count of murder. The Crown also indicated its consent at that stage to a request by the offender to have the charge of assault taken into account on a Form 1. The lateness of the plea is not attributable to the Crown; a plea on the same basis would have been accepted before committal for trial.

[40]    Counsel for the offender submitted in one place that he should receive a discount in the order of 15% to 20% for the plea; elsewhere in the written submissions and in oral submissions it was submitted that the discount should be 20% to 25%. The submission was not expanded upon. The Crown submitted that the discount should be in the order of 10% to 15%, which is more consistent with the relevant principles. I consider that the appropriate course is to reduce the sentence by approximately 12%.”

31. It is common ground that her Honour erroneously recorded the Crown’s submission as to the appropriate discount since the Crown accepted at the hearing that the discount should be “higher than 15%”.

32. Her Honour found special circumstances as is reflected in the ratio of 62.5% between the non-parole period and total term.

The grounds of appeal

Ground 1: alleged error in concluding that this was not an isolated loss of control and increasing the weight to be given to personal deterrence

33. The finding which is challenged by ground 1 is highlighted in the extract from her Honour’s reasons at [35] set out above. Mr James submitted that the finding was erroneous as:

“[t]here was no evidence the offences which relate to the Form 1 offence …were in the context where the [applicant] was irritated, frustration [sic], violent etc. In fact, the evidence is that he was doing so out of affection for her.”

34. By admitting his guilt of the Form 1 offence (as is required under s 33 of the Crimes (Sentencing Procedure) Act for it to be taken into account), the applicant admitted the elements of the offence. Thus he is taken to have admitted that he not only assaulted Liana and thereby caused her actual bodily harm, but that he did so intentionally or recklessly.

35. The issue which the sentencing judge was required to resolve was whether the bruises and marks on Liana’s face and body which were the subject of the Form 1 were such that the subsequent shaking which caused her death ought not be regarded as an isolated act of violence. As is apparent from the passage from [35] of the sentencing judgment, her Honour accepted that it was not possible to be satisfied to the requisite standard that the injuries the subject of the Form 1 offence were not “overly forceful expressions of affection”. However, her Honour considered that the applicant, in disregarding his wife’s remonstrations which arose from concern for the child, took the case “slightly outside the category of a wholly isolated loss of control” which meant that “personal deterrence must be given some weight”.

36. The facts which her Honour took into account in making this evaluative judgment included [10]-[12] of the agreed facts. We regard her Honour’s finding at [35] as open. It was a matter for the sentencing judge to determine the weight to be given to specific deterrence, in light of the light shed on the offender’s culpability for the count of manslaughter by the circumstances of the Form 1 offence. The applicant has failed to demonstrate error. Accordingly, ground 1 has not been made out.

Ground 2: alleged failure to take into account, or give sufficient weight to, the applicant's disadvantaged upbringing as a factor that reduced his moral culpability

37. In support of ground 2, Mr James submitted that her Honour failed to take into account the principles recognised by the High Court in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (Bugmy) at [43]-[44] that the effects upon an offender of profound childhood deprivation do not diminish over time and should be given full weight when sentencing the offender.

38. No submission was made at the sentencing hearing that the principles expressed in Bugmy were applicable. There was no foundation in the evidence for the proposition that the applicant had been the victim of profound childhood deprivation. Rather, as the passages extracted from the expert reports of Dr Furst and Mr Borenstein set out above indicate, the relevant matter from the applicant’s past was that he had suffered PTSD. As referred to above, the sentencing judge accepted the applicant’s submission that the PTSD had contributed to the offending.

39. The sentencing judge addressed the submissions that were put on behalf of the applicant at the sentence hearing. What the applicant seeks to do in pressing ground 2 is to put an entirely different complexion on facts which he used to support a submission made to the sentencing judge that his moral culpability for the offending was reduced by reason of PTSD sustained as a result of trauma suffered in Iran. The sentencing judge is not to be criticized for not addressing a submission which was not made to her. Further, Mr James submitted in this Court that the sentencing judge erred in not giving “sufficient” weight to the “severe abuse and torture he had suffered at a young age, including sexual assault”. The question of what weight to give any particular matter was a matter for the sentencing judge and does not give rise to an error which enlivens this Court’s jurisdiction.

40. The weight to be accorded to relevant factors in a discretionary decision such as sentencing is for the decision-maker: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24; [1986] HCA 40 (Peko-Wallsend). The weight given to such considerations does not give rise to a question of law, unless the decision is manifestly unreasonable: Peko-Wallsend at 41-42 per Mason J (as to which see ground 6 below). This ground has not been made out. An alleged error on the part of the sentencing judge to attribute sufficient weight to an issue in the exercise of the sentencing discretion will not generally constitute an error which will attract this Court’s jurisdiction since the submission carries with it the tacit acceptance that some weight was given to the issue, as was plainly the case here: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ, Grove and Hidden JJ agreeing).

Grounds 5 and 7: alleged error in imposing a discount of 12% for the utilitarian value of the plea of guilty (ground 5) and alleged denial of procedural fairness to the applicant in relation to the discount for the plea (ground 7)

41. It is convenient to address grounds 5 and 7 together since they both arise from her Honour’s determination that there ought be a discount of 12% for the utilitarian value of the plea of guilty.

42. The applicant accepted that the sentencing judge was not bound by the range in issue between the parties. Thus, although the Crown accepted in oral submissions that the utilitarian discount for the plea of guilty ought be “higher than 15%”, it was accepted that it was open to her Honour to specify a discount of less than that figure for the purposes of s 22 of the Crimes (Sentencing Procedure) Act.

Ground 5: alleged error in assessing discount for plea of guilty

43. The applicant relied on her Honour’s statement, which was accepted to be incorrect, that the Crown had submitted that the discount for the plea ought be in the order of 10-15%.

44. There is no indication in her Honour’s reasons that her Honour considered herself bound to find a percentage discount within the range submitted by the parties. Indeed, her Honour, when stating (albeit incorrectly) that the Crown’s suggested range was 10-15%, observed that that range was “more consistent with the relevant principles”. We consider it to be plain, having regard to her Honour’s involvement in the proceedings (as the judge to whom the trial of the matter had been allocated) and her Honour’s reasons at [39]-[40], that her Honour considered the utilitarian value of the applicant’s plea to be relatively low. As the narrative set out above indicates, the plea was entered a mere four days before the trial was due to commence. Although there had been discussions in 2017, which had resumed in 2018, there was no guarantee that they would result in a plea until this actually occurred on 26 July 2018.

45. Mr James submitted that the applicant had “at all relevant times offered a plea to manslaughter and a willingness to accept the facts as they were eventually agreed upon”. There is no evidence to support that submission. Indeed, the available evidence is to the contrary. As the narrative set out above indicates, the Crown’s offer to accept the applicant’s plea to manslaughter in 2017 was conditional upon his acceptance of the Crown’s draft agreed facts, which were unacceptable to the applicant. Nor was the Crown prepared to accept a plea to manslaughter on the basis of the applicant’s draft agreed facts.

46. A plea can be taken in the absence of agreed facts. In such a case the facts can be determined at the sentence hearing. However, such a course was not open to the applicant since the Crown pressed the charge of murder unless and until the facts for manslaughter in a form acceptable to the Crown had been agreed. This did not occur until 26 July 2018. The agreed facts underpinning a manslaughter plea may be regarded as singularly important since manslaughter is, as has often been observed, a “protean” offence. As Gleeson CJ (Grove and Ireland JJ agreeing) said in R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, Grove and Ireland JJ, 12 December 1995, unrep):

“The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as ‘involuntary’, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.”

47. Once it was accepted that the sentencing judge was not bound by the range put forward by the respective parties, the discretion to assess the discount for the plea was not constrained by the parties’ submissions. We discern no error in her Honour’s assessment of the utilitarian value of the plea in the selection of the discount at 12%. Accordingly, ground 5 has not been made out.

Ground 7: alleged denial of procedural fairness

48. Ground 7 raises a separate point relating to the discount: alleged denial of procedural fairness. Mr James submitted that the sentencing judge ought to have alerted the applicant, in the course of the sentencing hearing, to the prospect that her Honour might assess the discount for the utilitarian value of the applicant’s plea of guilty at a figure less than the bottom of the Crown’s range. He submitted that, to fail to do so, the sentencing judge denied procedural fairness to the applicant. In support of this submission, Mr James relied on Baroudi v R [2007] NSWCCA 48 (Baroudi) and Button v R [2010] NSWCCA 264 (Button).

49. Whether there has been a denial of procedural fairness is matter of substance which must be determined by reference to the circumstances. The question is not whether the applicant feels disappointed because his reading of the decision-maker’s likely decision has not come to pass; rather the question is whether there has been actual unfairness: Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [34] per Gleeson CJ. Actual unfairness, if it arises, will generally involve a party either being deprived of the opportunity to make submissions or refraining from making submissions by reason of an indication, which ultimately proves to have been false, from the decision-maker.

50. In Baroudi (which was decided before Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2), the Crown effectively nominated an appropriate sentence in the course of the sentence hearing by indicating that a further twelve months in custody would be sufficient for the non-parole period. The sentencing judge asked the offender’s representative whether he wished to say anything in opposition to that submission. The offender’s counsel made no submissions seeking to dissuade the sentencing judge from imposing an effective non-parole period of no more than a further twelve months. Price J (Sully and Howie JJ agreeing) said in Baroudi at [31]:

“His Honour’s question to Mr Hamill SC in the passage quoted above: ‘…do you wish to say anything at all in view of that?’ (emphasis added [in original]) could only be understood to mean that he did not wish to hear from Mr Hamill SC unless he disagreed with the Crown submission. This was a clear indication by the Judge of his acceptance of the length of the non-parole period conceded by the Crown. In the course of the ensuing argument by Mr Hamill SC for a shorter non-parole period, there was no indication by the Judge foreshadowing the possibility that he might impose a non-parole longer than a further 12 months.”

51. On this basis, this Court in Baroudi found that there had been a denial of procedural fairness.

52. In Button, the sentencing judge indicated to the parties in submissions (in a country circuit) that he was considering an aggregate sentence of three years’ imprisonment with a non-parole period of one year. His Honour reserved his decision. When the judge imposed sentence 11 days later, he imposed an aggregate non-parole period of 18 months. This was held to be a denial of procedural fairness on the grounds that there had been “practical injustice” in the sentencing judge effectively announcing the sentence what would be imposed and imposing a greater non-parole period when his Honour actually imposed the sentence. Latham J (Simpson and Kirby JJ agreeing) said, at [18]:

“…The judge went beyond a mere indication of sentence and announced the sentence he was going to impose. The applicant is entitled to receive the sentence that was accepted by the Judge and the parties as an appropriate sentence in all the circumstances….”

53. The present case is to be distinguished from cases such as Baroudi and Button. All her Honour did in the present case was to make a neutral observation of the extent of the issue between the parties. The sentencing judge did not indicate to the parties that she would find a figure within the range. Indeed, the sentencing judge gave no indication whatsoever of what discount she was considering. All that her Honour observed, of present relevance, was that the Crown’s top figure (20%) was the bottom of the applicant’s range (20%-25%). This was not an indication of what her Honour proposed to do, but rather a reflection on the parties’ submissions. There has been no procedural unfairness. Ground 7 has not been made out.

Ground 6: alleged manifest excess

54. Manifest excess, like manifest inadequacy, is a conclusion which does not require the identification of any specific error in the sentencing process but may rest on the unreasonableness of the result: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

55. The applicant made a number of specific complaints about the sentence. He submitted that the sentence “gave undue weight to specific deterrence”. He also submitted that the sentence failed to “properly reflect” her Honour’s findings that the applicant’s mental illness (PTSD) contributed to the offending conduct, that he had reasonable prospects of rehabilitation and that his time in custody would be more onerous. The applicant also contended that her Honour failed to “properly reflect” his disadvantaged upbringing and reduced moral culpability and that he was an unsuitable “vehicle for specific deterrence”. The complaint about the discount for the plea was also included as a particular of manifest excess. In so far as these matters are based on any of the grounds set out above, they have not been made out.

56. All of the specific complaints made by the applicant with respect to ground 6 fall into the category of the weight given by the sentencing judge to particular factors identified as relevant by her Honour. The only possible exception is the reference to the applicant’s “disadvantaged upbringing”, which was also the subject of ground 2 and which has been addressed above.

57. It is necessary, when considering ground 6, to look at the sentence as a whole to determine whether it is manifestly excessive, having regard to all relevant factors. We are unable to conclude that it is. The applicant’s unlawful taking of Liana’s life was a serious example of the offence of manslaughter by unlawful and dangerous act. She was entirely defenceless and had no capacity to protect herself from his violence. The injuries she sustained which led to her death must have been terribly painful, as the cries which her mother heard indicated. Sentences for such offences ought be sufficient to reflect the unlawful taking of human life. In the context of a maximum penalty of 25 years, a starting point in the order of 9 years (before the discount for the plea), cannot be regarded as excessive, particularly as her Honour was to take into account the Form 1 offence in sentencing for the manslaughter count. The non-parole period of 5 years cannot, in the circumstances, be regarded as excessive in itself, or in the context of the overall sentence. The sentence imposed by her Honour reflected the significant findings in favour of the applicant, which included that the PTSD had contributed to the offending conduct, that he was remorseful and that he had reasonable prospects of rehabilitation. Ground 6 has not been made out.

Whether leave ought be granted

58. Ground 1 raised a matter which arose squarely from the Form 1 offence which the applicant asked the sentencing judge to take into account. Ground 2 raised a matter which was not put to the sentencing judge and, in any event, concerned weight, which does not give rise to a matter for this Court’s intervention. Ground 5 sought to take opportunistic advantage of a slip in her Honour’s reasons to challenge an assessment for the discount which was, in the context of the chronology, plainly open. Ground 6 was, in the context of the objective seriousness of the offence, barely arguable. Ground 7 raised no arguable denial of procedural fairness.

59. Notwithstanding the deficiencies we have identified in the grounds, we are persuaded that leave ought be granted, having regard to the fact that, as appears from our reasons, we have given due consideration to each ground.

Orders

60. For the reasons set out above, we make the orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 01 November 2019