Iskov v The Queen

Case •

[2011] NSWCCA 241

•

11 November 2011

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Iskov v R [2011] NSWCCA 241
Hearing dates:8 September 2011
Decision date: 11 November 2011
Before: Bathurst CJ
James J
Johnson J
Decision:

Leave to appeal against sentences imposed on the applicant granted.

Appeal against the sentence for the offence of manslaughter allowed.

Sentence for the offence of manslaughter quashed. In lieu thereof the applicant is sentenced for the offence of manslaughter to a non-parole period of five years three months commencing on 24 April 2014 and expiring on 23 July 2019 and a balance of term of three years nine months commencing on 24 July 2019 and expiring on 23 April 2023. Otherwise confirm the sentences imposed by the sentencing judge.

The earliest date on which the applicant will be eligible for release on parole will be 23 July 2019.

Catchwords: CRIMINAL LAW - manslaughter by criminal negligence
Legislation Cited: Crimes Act
Cases Cited: Muldrock v The Queen (2011) HCA 39
Nydam v R (1977) VR 430
Wilson v The Queen (1992) 174 CLR 313
R v Lavender (2005) 222 CLR 67
Burns v R [2011] NSWCCA 56
Cahyadi v The Queen (2006) 168 A Crim R 41
R v XX (2009) 195 A Crim R 38
R v Fidow [2004] NSWCCA 172
R v el-Hayek (2004) 144 A Crim R 90
R v Cramp [2004] NSWCCA 264
Stoeski v R [2008] NSWCCA 230
Category:Principal judgment
Parties: Clayton John Iskov - Applicant
Regina - Respondent
Representation: T Game SC with S Buchen - Applicant
C Maxwell QC with T Smith - Respondent
Giddy and Crittenden - Applicant
S Kavanagh - Solicitor for Public Prosecutions
File Number(s):2009/11046
 Decision under appeal 
Citation:
[2010] NSWSC 1074
Date of Decision:
2010-09-20 00:00:00
Before:
Barr AJ
File Number(s):
2009/11046

Judgment

  1. THE COURT : Clayton John Iskov applied for leave to appeal against sentences imposed on him in the Supreme Court by Barr AJ for three offences, all of which had been committed on 6 August 2007 against his estranged wife Kylie Petrina Iskov.

  1. The three offences were:-

1.   Maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm. It will be convenient sometimes to refer to this offence in this judgment as "the grievous bodily harm offence".

2.   Aggravated taking and detaining for advantage, the circumstances of aggravation being that at the time of the taking actual bodily harm was occasioned to the victim. It will be convenient sometimes to refer to this offence in this judgment as "the kidnapping offence".

3.   Manslaughter.

  1. The sentences imposed by the sentencing judge were:-

1.   For the offence of maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm, a sentence consisting of a non-parole period of six years commencing on 24 April 2008 and a balance of the term of two years. 24 April 2008 was the date on which the applicant had been arrested and from which he had remained in custody.

2.   For the offence of aggravated taking and detaining for advantage, a sentence consisting of a non-parole period of seven years six months commencing on 24 April 2011 and a balance of the term of two years six months.

3.   For the offence of manslaughter, a sentence consisting of a non-parole period of seven years six months commencing on 24 April 2014 and a balance of the term of four years six months.

The total sentences imposed were head sentences of 18 years and non-parole periods of 13 years.

  1. Maliciously inflicting grievous bodily harm with intent to cause grievous bodily harm was an offence under s 33 of the Crimes Act as it then stood, for which the maximum penalty was imprisonment for 25 years. There was a standard non-parole period of seven years. Aggravated taking and detaining for advantage is an offence under s 86(2) of the Crimes Act for which the maximum penalty is imprisonment for 20 years. There is no standard non-parole period for the offence. Manslaughter is an offence under ss 18 and 24 of the Crimes Act for which the maximum penalty is imprisonment for 25 years. There is no standard non-parole period for the offence.

  1. The Crown case against the applicant, stated very broadly, was that the applicant and the victim were estranged; that they had a meeting on 6 August 2007; that after they met the applicant violently assaulted the victim inflicting serious injuries; that the applicant then drove a vehicle for a period of about 3 hours with the victim in the front passenger seat, unable because of her injuries to look after herself and unrestrained by a seatbelt, that the vehicle left the bitumen roadway and collided with a tree that as a result of the collision the victim's head struck the windscreen of the vehicle; and that the victim died soon afterwards.

  1. The applicant was originally charged with murder and a trial on a charge of murder was fixed to commence before Barr AJ and a jury. The Crown case on the murder charge was that the victim had died as a result of the injuries inflicted on her during the assault.

  1. Reports about the victim's injuries were furnished by a number of pathologists. Barr AJ directed that the various pathologists confer and prepare a joint report in which they would answer questions drafted by counsel and his Honour. The pathologists were able to agree on the answers which should be given to those questions, including what injuries had been suffered by the victim and which of those injuries had been suffered in the assault and which of them had been suffered in the collision. The pathologists also agreed that the most probable cause of the victim's death was a fracture of her skull caused at the time of the collision by the impact of her head with the windscreen of the vehicle.

  1. In light of the pathologists' joint report the Crown indicated that it would not press the charge of murder and would accept a plea of guilty to manslaughter. Counsel for the parties then prepared a long statement of agreed facts. The applicant also made a number of formal admissions.

The sentencing judge ' s remarks on sentence

  1. The sentencing judge delivered lengthy remarks on sentence which were divided into sections, with headings for the sections. We will now summarise parts of the remarks on sentence, adopting his Honour's headings.

The facts

  1. In about 1997 the applicant and the victim entered into a relationship and soon afterwards they were married. Three children were born of the marriage.

  1. In 2000 the applicant had an affair with another woman and this affair created continuing problems in the marriage.

  1. In 2006 the applicant saw a naturopath and told her that he was depressed because he was having relationship problems.

  1. In May 2007 the victim met again a man to whom she had been engaged to be married before she entered into her relationship with the applicant. The victim decided that her marriage to the applicant should be brought to an end and that she would re-commence a relationship with her former fiance.

  1. The victim told the applicant that she wanted a divorce. The applicant took the news badly and on some subsequent occasions was observed to be emotional and crying. The victim and her children moved out of the family home. The applicant suspected that the victim was seeing her former fiance.

  1. In June 2007 the applicant saw a psychologist Ms Saunders about the breakdown of his marriage. He also saw the naturopath a number of times. He told the naturopath he was depressed and griefstricken by the breakdown of the marriage and that he was taking sleeping tablets and anti-depressants.

  1. The victim instructed a solicitor and told the solicitor that the applicant had agreed to move out of the former matrimonial home, so that she could move back in with the children of the marriage.

  1. In paragraph 11 of this remarks on sentence the sentencing judge said:-

"On 20 July the offender saw a general practitioner and obtained a letter referring him to the Mental Health Services of the North Coast Area Health Service. The referral said that he was moderately severely depressed with active suicidal ideation. On 25 July he was diagnosed with reactive depression. He had lost weight and was not sleeping well. He was concerned that the deceased might "walk away with about 60 per cent of my portfolio and have custody of the children". The offender saw Ms Saunders on 26 July. Her notes include this "... foremost, losing Kylie, the kids, then money, himself somewhere in between. Feels he will never recover. Says he does not want to live. Has prescription re anti-depressants and sleeping tabs".

  1. Also on 20 July 2007 the victim's solicitor wrote a letter to the applicant informing him that she was acting for the victim in relation to financial and property issues arising from the breakdown of the marriage.

  1. On 1 August 2007 the applicant made a thorough search of the car the victim had been using, looking for evidence that the victim had been seeing another man.

  1. On 3 August 2007 the applicant told the naturopath that he felt like ending his life.

  1. At about 8 o'clock on the morning of 6 August 2007 the deceased left the place where she was living in her car. Paragraph 17 of the remarks on sentence was as follows:

"At 8.18 am the deceased spoke to the offender by telephone. Shortly afterwards the offender left his business, telling his secretary that he would be back soon. He walked away."

  1. Paragraph 19 of the remarks was as follows:-

"There is no evidence of what the deceased and the offender said on the telephone before he left his place of work. It seems likely that they arranged to meet. They did meet, no later than about 9.10 am. The first of the formal admissions made by the offender states that about 9.10 am he entered the deceased's car. It was at about that time that the offender committed the first of the offences to which he has pleaded guilty and began to commit the second, the detention."

  1. In paragraphs 20 to 29 of his remarks on sentence the sentencing judge dealt with the grievous bodily harm offence. In paragraph 20 of his remarks his Honour said:-

"According to the second of the offender's formal admissions, he assaulted the deceased with a hard, blunt implement in the car soon after he had entered it. The offender states that as a result the deceased sustained multiple blunt force injuries to her head, left hand and left wrist, including bruising, swelling, lacerations and abrasions to the head and face. The assaults caused extensive bleeding from the head."

  1. An issue which arose in the sentence hearing was whether the assault by the applicant on the victim had begun outside the car. It was suggested that, if the assault had begun outside the car, that would have aggravated the offence, because then the assault would have extended over a longer period of time. The sentencing judge held that, even if such a finding could be made only if it could be made beyond reasonable doubt, he would nevertheless be satisfied beyond reasonable doubt that the assault had begun outside the car. However, his Honour also held that any resulting additional time for the assault would have been insignificant and noted the applicant's acceptance that he was responsible for all of the victim's injuries, whenever they were inflicted.

  1. The watch the victim had been wearing on her wrist had stopped at about 9.10am. It could be inferred that the watch had stopped because the applicant had struck the victim on her wrist, damaging the watch. The soft tissue injury to the victim's wrist was treated at the sentence hearing as a circumstance aggravating the kidnapping offence and not as part of the injuries inflicted in the grievous bodily harm offence.

  1. The sentencing judge discussed the extent to which the grievous bodily harm offence had been planned and found that the offence had not been planned, "other than for a short period of time, something less than an hour immediately before its commencement".

  1. In paragraphs 30 to 32 of his remarks the sentencing judge dealt with the kidnapping offence. His Honour referred to a formal admission made by the applicant in the following terms:-

"For approximately the next 3 hours the offender had control of the Holden Commodore. The offender drove the vehicle on various roads in the North Coast/Tweed Heads area. The offender did so in a state of confusion and in fear of the assaults being detected by others. The deceased was not at liberty to leave the offender's company during this period".

  1. At the sentence hearing counsel for the applicant informed the sentencing judge that the words "in a state of confusion" meant "not knowing what to do". Counsel for the applicant also said that the victim "was not at liberty to leave the offender's company", because the car was moving and the victim was incapacitated by her injuries.

  1. In paragraphs 33 to 36 of his remarks the sentencing judge dealt with the manslaughter offence.

  1. Shortly before 12.41 pm on the same day the car which was being driven by the applicant and in which the victim was a front seat passenger, collided with a tree which was a short distance from the edge of the bitumen roadway. The applicant was wearing a seat belt and was protected by an airbag which inflated. There was no airbag on the passenger's side of the vehicle.

  1. At 12.41 a passing motorist who was a registered nurse saw the crashed car and stopped. She observed the victim lying on the floor on the front passenger's side of the car. The victim was not wearing a seat belt. The victim had serious injuries and was comatose. The victim died before ambulance officers arrived at the scene of the collision.

  1. In paragraph 34 of his remarks the sentencing judge quoted a part of the agreed facts in which the basis of the applicant's offence of manslaughter by criminal negligence was stated. This basis was stated to be:-

"The offender demonstrated a high degree of negligence and a disregard for the life and safety of the deceased through a combination of the following matters-
1. Failing to exercise his duty of care over the deceased by taking her to a hospital following the assault to receive prompt medical attention;
2. Driving the deceased around for a period of hours while she was in a vulnerable state and suffering from grievous bodily harm; and
3. Driving in a negligent manner, which included driving a distressed and injured passenger, failing to ensure that the deceased was wearing a seat belt and paying inadequate attention to the road conditions so as to cause the collision with the tree."

  1. The sentencing judge recorded that the evidence showed, and the parties agreed, that the most probable cause of death was a fracture of the base of the skull caused by the impact of the victim's head with the windscreen.

  1. The sentencing judge noted that there had been no suggestion that any feature of the car had played a part in causing the collision with the tree. The speed limit at the location of the collision was 90 kilometres per hour. Police officers had given varying estimates of the speed of the car at the time of the collision, ranging from 45 to 70 kilometres per hour.

  1. In paragraphs 37 to 39 of his remarks the sentencing judge dealt with the victim's injuries. His Honour listed the injuries which were present immediately after the collision. The sixth and seventh injuries listed were lacerations and abrasions to the victim's forehead.

  1. In paragraph 38 of his remarks his Honour said:-

"The parties are agreed that the sixth and seventh injuries must have resulted from the contact of the deceased's head with the windscreen at the time of the collision. Otherwise, it is agreed that the injuries must have existed before the collision. They resulted from the assault carried out by the offender shortly after he met the deceased and at around the time when she came to be in the front passenger seat of the vehicle. They comprised a number of individual impacts to the left side of the head, to the right temple, to the forehead at various angles as far down as the eyebrows and as far up at least as the hairline. There was an impact to the nose, causing distortion, and damage to the chin. There was bruising to the eyes with marked swelling on the left and blackening on the right. The lips were swollen. The left cheek was bruised and swollen. The upper two thirds of the left ear were heavily bruised and swollen. The injuries were characteristic of impacts with a narrow, blunt-edged object. They had been applied from the left side, the right side, the front and the upper front of the head."

  1. There were also injuries to the victim's hands which the sentencing judge found had been inflicted as the victim attempted to ward off repeated blows from the applicant.

The offender's motive

  1. The sentencing judge found that the applicant had attacked the victim because he was possessive of her, he was jealous of the other man she was seeing, he was apprehensive that the victim would be awarded custody of their children and he feared financial loss as a result of a dividing-up of their assets.

  1. The sentencing judge accepted that the applicant had been diagnosed as having, and was being treated for, a reactive depression. However, his Honour found that there was no disorder in the applicant's thought processes and that he had insight into his condition. His Honour found that there was "no evidence to explain how or why his illness bore upon his intention to attack the deceased as he did". His Honour added:-

"Nevertheless, I am prepared to allow that his illness might in some unexplained way have affected his attitude and motivation. I shall accordingly bear this in mind when imposing sentence, but the effect it can have is modest."

Matters personal to the offender

  1. Under this heading the sentencing judge traced the history of the criminal proceedings against the applicant, which we referred to briefly earlier in this judgment.

  1. The sentencing judge noted, inter alia, the early willingness of the applicant to plead guilty to manslaughter, the obtaining by the defence of an important pathologist's report, the suggestion of the defence lawyers that a joint pathologists' report be obtained, the change of attitude on the part of the Crown after the joint report had been obtained and the part the defence had played in formulating the ways in which the criminality of the offender before the collision and in the collision itself could be comprehended. His Honour concluded that "the matter was dealt with in a timely fashion on the part of the defence and all three pleas of guilty should be treated as having been offered at the earliest opportunity". His Honour said he would allow a maximum discount for all three pleas of guilty.

  1. His Honour noted that the applicant had no previous criminal history, that his actions in attacking the victim had been out of character, that he was unlikely to re-offend and that he had reasonable prospects of rehabilitation. His Honour also noted that the applicant had not expressed any remorse and that his counsel had not submitted that the applicant was remorseful.

Assessment of the seriousness of the offences

  1. In this part of his remarks the sentencing judge made an assessment of the seriousness of each of the offences.

The grievous bodily harm offence

  1. All the injuries suffered by the victim would have to be taken into account, apart from the injury to the wrist and the two injuries caused when the victim's head had hit the windscreen of the car.

  1. The sentencing judge found that the injuries to be taken into account in sentencing for this offence were very serious. They had been inflicted when a male had taken up a hard, blunt instrument and beaten a woman many times about the head, from a number of different angles.

  1. His Honour considered that no finding could be made about what might have been the consequences of these injuries, if the collision had not occurred. The expert pathologists have not been asked to express any opinion on this question. The only finding the sentencing judge considered he could make was that the injuries deliberately inflicted by the applicant had not substantially contributed to the victim's death.

  1. The sentencing judge was, of course, sentencing the applicant before the recent decision of the High Court in Muldrock v The Queen (2011) HCA 39. As there was a standard non-parole period for the offence, his Honour considered that he was obliged to make a finding about the level of objective seriousness of the offence in relation to an offence in the middle of the range of objective seriousness. His Honour found that the offence was a little above the mid-range of objective seriousness for offences of this type. However, after taking into account the discount for the plea of guilty, his Honour said he would impose a sentence with a non-parole period a little below the standard non-parole period of seven years.

The kidnapping offence

  1. The only injury to be taken into account in sentencing for this offence was the soft tissue injury to the victim's wrist.

  1. The victim had been detained in a moving car from which she was unable to escape, because of the motion of the car and the disabilities resulting from her injuries. The advantage the applicant intended to obtain was to delay the detection by others of his assault on the victim and during the period of the detention he obtained that advantage. The period of the detention was about 3 hours.

The manslaughter offence

  1. Having regard to some of the applicant's grounds of appeal against sentence, paragraphs 59 and 60 of the remarks on sentence, in which the sentencing judge assessed the objective seriousness of the offence of manslaughter, should be set out in full.

"59. The collision of the car with the tree was caused by the gross criminal negligence of the offender. The deceased died of injuries she received in the collision, by far the most serious of which was the fracture of the base of the skull. Her injuries were received when the deceased, unrestrained by any seat belt, was thrown forward when the car suddenly stopped. The offender demonstrated a high degree of negligence and a disregard for the safety of the deceased in that he failed to exercise his duty of care over the deceased by taking her to a hospital following the assault so that she could receive prompt medical attention, kept her in the car for a period of hours while she was in a vulnerable state and suffering from grievous bodily harm and drove in a negligent manner, which included driving a distressed and injured passenger, failing to ensure that the deceased was wearing a seat belt and paying inadequate attention to the road conditions so as to cause the collision with the tree.
60. The negligent driving of the car immediately before the collision was not of a particularly high order. There was no excessive speed and no evidence of other misbehaviour. It is not to be assumed that the collision with the tree was deliberate. However, the negligent manner of driving at the time was aggravated by the offender's failure to ensure that his passenger was wearing a seat belt. And when one adds the other failures by the offender to exercise his duty of care towards the deceased that I have described above his offence must be seen as a serious one of its kind."

Concurrency

  1. The sentencing judge considered that there were a number of factors which would require a substantial degree of concurrency in the sentences to be imposed for the three offences. These factors included that all of the offences had been committed against the same victim within a period of a few hours and that there was a high degree of interrelationship between the offences, which his Honour illustrated by examples.

Special circumstances

  1. The sentencing judge declined to find any special circumstances, apart from the partial accumulation of the sentences he would be imposing. His Honour said that he had taken into account such factors as the applicant's lack of a prior criminal history and his emotional state at the time of the offences, in determining the head sentences.

The Appeal

  1. The applicant relied on the following grounds of appeal against sentence:

1. The sentencing judge erred in his assessment and characterisation of the gravity of the offending in relation to the manslaughter offence.

2. The manslaughter sentence is manifestly excessive.

3. The kidnapping sentence is manifestly excessive.

4. The sentencing judge erred by fully accumulating the manslaughter sentence upon the non-parole period of the grievous bodily harm offence.

5. In the alternative to ground four, the sentencing judge erred by refusing to find special circumstances and adjust the ratio between the non-parole period and total term of the sentence.

  1. We shall now proceed to consider these grounds of appeal.

1. The sentencing judge erred in his assessment and characterisation of the gravity of the offending in relation to the manslaughter offence.

2. The manslaughter sentence is manifestly excessive.

It is convenient to deal with these grounds of appeal together.

  1. Earlier in this judgment we summarised or quoted from paragraphs 33 to 36 of the sentencing judge's remarks on sentence in which his Honour stated the facts of the manslaughter offence and we quoted paragraphs 59 and 60 of the remarks in which his Honour assessed the objective seriousness of the offence of manslaughter.

  1. It was submitted by counsel for the applicant that the sentencing judge had made specific errors, in the first sentence of paragraph 59 of his remarks; in the way in which his Honour had in paragraphs 59 and 60 of his remarks treated the agreed basis on which the plea of guilty to manslaughter by gross criminal negligence had been offered and accepted; in the second last sentence of paragraph 60 of the remarks; and in the last sentence of paragraph 60 of the remarks.

  1. In support of the second ground of appeal it was submitted that, in sentencing the applicant for the offence of manslaughter, the sentencing judge was required to take into account, inter alia, the low level of negligence by the applicant in the driving of the car, the confused mental state of the applicant when driving the car and the favourable subjective features which the sentencing judge had found the applicant to have and was also required to avoid double punishment, that is in sentencing the applicant for the manslaughter offence to avoid punishing him for conduct which had already been punished in the sentences for the grievous bodily harm offence or the kidnapping offence. It was submitted that, when these matters were taken into account, the starting point for the sentence which the sentencing judge had adopted, that is a sentence of 16 years before allowing a discount of 25 per cent for the plea of guilty, could be seen to be manifestly excessive.

Decision

  1. There is utility in stating the general principles of manslaughter by criminal negligence.

  1. In Nydam v R (1977) VR 430 the Full Court of the Supreme Court of Victoria said at [445]:-

"In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment".

  1. The judgment of the Victorian Full Court in Nydam has been approved by the High Court in Wilson v The Queen (1992) 174 CLR 313 at 333 per Mason CJ, Toohey, Gaudron and McHugh JJ. R v Lavender (2005) 222 CLR 67 at 75 [17] and 87 [60] per Gleeson CJ, McHugh, Gummow and Hayne JJ and at 90 [72] and 110 [136] per Kirby J.

  1. Manslaughter by criminal negligence depends upon the offender owing the deceased a duty of care; Burns v R [2011] NSWCCA 56 at [96] per McClellan CJ at CL and Howie J. To constitute manslaughter by criminal negligence the breach of duty must be "gross"; Burns at [103]. "A very high degree of negligence" is required ( Burns at [103]). The breach of duty must have caused the death of the deceased ( Nydam at [333]), that is it must have been a substantial or significant cause of the death of the deceased.

  1. In the present case there is no doubt that the applicant owed a duty of care to his wife, who was a passenger in the car he was driving and who was incapacitated by her injuries from attending to her own safety. However, it will be necessary to determine what were the acts or omissions on the part of the applicant which exhibited a very high degree of negligence and which had a causal connection with the death of the victim.

  1. We will now proceed to consider the specific errors contended for by counsel for the applicant.

  1. In the first sentence of paragraph 59 of his remarks the sentencing judge said "The collision of the car with the tree was caused by the gross criminal negligence of the offender". It seems to us unlikely that his Honour intended to convey what would be the literal meaning of this sentence. The literal meaning would be inconsistent with the balance of paragraph 59 and his Honour's finding in paragraph 60 that the negligent driving of the car immediately before the collision was not of a particularly high order. In our opinion, it is likely that by the first sentence of paragraph 59 his Honour intended to say no more than that the death of the victim, the immediate cause of which was the collision of the car with the tree, was caused by the criminal negligence of the applicant. If the sentence is read in this way, it is not in itself erroneous.

  1. In the second half of paragraph 59 of his remarks the sentencing judge repeated the three matters, the combination of which he had said in paragraph 34 "demonstrated a high degree of negligence and a disregard for the life and safety of the deceased".

  1. It was submitted by counsel for the applicant that it was the combination of the three matters that amounted to criminal negligence and that the first and second matters were not free-standing, independent particulars of negligence but merely "fed into", or were introductory to, the third matter. However, it was submitted, the sentencing judge had treated the first and second matters as serious particulars of negligence in their own right and as having the effect of making the applicant's offence of manslaughter much worse than it otherwise would have been. For reasons which we will endeavour to develop in this part of our judgment, we consider that these submissions by counsel for the applicant should be upheld.

  1. In paragraph 60 of his remarks the sentencing judge, after finding that the negligent driving of the car immediately before the collision had not been of a particularly high order, including that there had not been any excessive speed or any evidence of other misbehaviour as a driver (apart from deviating from the roadway), said that "the negligent manner of driving was aggravated by the offender's failure to ensure that the victim as his passenger was wearing a seat belt". It was submitted by counsel for the applicant that it was an error to find that the failure to ensure that the victim was restrained by a seat belt was an "aggravating" factor, that is a factor making worse what was already, independently, a case of manslaughter by criminal negligence. On the contrary, the failure to ensure that the victim was restrained by a seat belt was integral or central to the applicant's criminal negligence. We would accept these submissions by counsel for the applicant.

  1. In the last sentence of paragraph 60 of his remarks the sentencing judge said:-

"And when one adds the other failures by the offender to exercise his duty of care towards the deceased that I have described above his offence must be seen as a serious one of its kind."

  1. "The other failures", that is the failures apart from the negligent manner of driving at the time of the collision and the failure to ensure that the victim was wearing a seatbelt, are clearly the first two matters in the combination of three matters stated in paragraphs 34 and 59 of the remarks.

  1. The first of these matters was that the applicant failed to exercise his duty of care to the deceased by taking her to a hospital following the assault, so that she could receive prompt medical attention. There is no doubt that the applicant owed a duty of care to the victim and that he breached that duty of care by not taking her to a hospital so that she could receive medical attention.

  1. However, there would not appear to me to be any causal connection, or at least any substantial or significant causal connection, between this breach of the applicant's duty of care and the victim's death. As we stated earlier in this judgment, the sentencing judge considered that no finding could be made about what might have been the consequences of the injuries inflicted by the applicant on the victim, if the collision had not occurred. The only causal connection suggested at the hearing of the application was that the failure by the applicant to take the victim to a hospital for treatment ensured that the victim's state of vulnerability continued and, in that way, it might be that there was some indirect causal relationship between the failure of the applicant to take the victim to a hospital and the victim's death. It is true that there was a causal connection of a trivial kind between the failure to take the victim to a hospital and the death of the victim, in the sense that, if the victim had been taken to a hospital (or any other place), she would not have been a passenger in a car driven by the applicant when the car collided with a tree. However, such a causal connection would be insufficient to establish an offence of manslaughter.

  1. The position would, of course, have been different, if the victim had died of the injuries for which she might have been treated at a hospital, although, if that had happened, the Crown would probably have continued to press the charge of murder, rather than bring a charge of manslaughter by criminal negligence.

  1. In our opinion, having regard to the absence of any causal connection, or at least any substantial or significant causal connection with the victim's death, it was not open to the sentencing judge to give the applicant's failure to take the victim to a hospital the degree of significance which it would appear his Honour gave it, in sentencing the applicant for manslaughter by criminal negligence. We consider that the applicant's failure to take the victim to a hospital so that she could receive prompt medical attention for the injuries she had suffered from the assault, would have been more appropriately dealt with as a matter aggravating either the grievous bodily harm offence or the kidnapping offence. As to the latter, it would be a matter aggravating the kidnapping offence that the applicant continued to detain the victim while the victim was needing medical attention.

  1. The second matter in the combination of three matters stated in paragraphs 34 and 59 of the sentencing judge's remarks was that the applicant drove the victim around for a period of hours, while she was in a vulnerable state and suffering from grievous bodily harm.

  1. In our opinion, the sentencing judge was not entitled to give this "failure" any more than very limited weight. That the victim was in a vulnerable state does not differ in substance from the parts of the third matter asserting that the victim was "distressed and injured". The sentencing judge, having sentenced the applicant for the grievous bodily harm offence, could not punish him again because the victim was suffering from grievous bodily harm. We would accept that the second matter does make explicit that the applicant's conduct in driving the victim continued for a period of hours.

  1. In the last sentence of paragraph 60 of his remarks the sentencing judge said that the applicant's offence "must be seen as a serious one of its kind". Although it might not be entirely clear, we consider that his Honour should be taken as saying, not merely that the applicant's negligence had reached the very high degree of negligence required before there can be any liability at all for manslaughter by criminal negligence, but that, as a case of manslaughter by criminal negligence, the applicant's case was, when compared with other cases of manslaughter by criminal negligence, a serious example of that form of manslaughter.

  1. We are conscious of the latitude which this Court extends to assessments by sentencing judges of the level of objective seriousness of offences. We have, nevertheless, concluded that it was not open to the sentencing judge to find that the applicant's offence was a comparatively serious example of manslaughter by criminal negligence.

  1. The sentencing judge himself made a finding that the negligence in the driving of the car immediately before the collision was not of a particularly high order. Indeed, it was quite minor. Photographs of the car in situ against the tree with which it had collided show that the tree was no more than a couple of metres to the side of the bitumen. Half of the rear of the car is shown as still being on the bitumen. Accordingly, the applicant's failure to control the car was only slight.

  1. Apart from the negligence in the failure to control the car immediately before the collision, the other acts or omissions of the applicant which were negligent and which had a causal connection with the death of the victim were, driving for an extended period of time with a front seat passenger who the applicant knew was incapacitated by her injuries from attending to her own safety, without ensuring that the passenger was restrained by a seatbelt. For reasons we have already given, the other "failures" of the applicant could not be used to significantly increase the seriousness of the applicant's offence.

  1. We conclude that the sentencing judge made some specific errors in sentencing the applicant for the manslaughter offence and the first ground of appeal should be upheld. We also consider that, given our conclusions about the degree of objective seriousness of the offence, the need to avoid double punishment, the presence of some favourable subjective features and the discount of 25 per cent for the early plea of guilty (and the co-operation of the defence in the sentencing process), the sentence of 12 years for the manslaughter offence was manifestly excessive and the second ground of appeal should also be upheld.

3. The kidnapping sentence is manifestly excessive

  1. Counsel for the applicant submitted that in the part of his Honour's remarks in which he assessed the seriousness of the offence his Honour had not referred to the applicant's being in a "state of confusion" while committing the offence. It was submitted that the offence would have been more serious, if the applicant had been clear-headed when committing the offence. However, his Honour did refer to the applicant's state of confusion in stating the facts of the offence earlier in his remarks and we would not find that his Honour overlooked the applicant's contemporaneous mental state in assessing the seriousness of the offence.

  1. It was submitted by counsel for the applicant that the circumstance of aggravation, that is the actual bodily harm to the victim's wrist, was minor and that some offences of taking and detaining involve a detaining of the victim for longer, and sometimes much longer, than 3 hours.

  1. In our opinion, this ground of appeal should be rejected. The maximum sentence for the offence is 20 years. No specific error by the sentencing Judge has been established. The sentence imposed by the sentencing judge could not, in our opinion, be regarded as manifestly excessive.

  1. Even if this Court were to allow this ground of appeal and to re-sentence the applicant, this Court in re-sentencing would have to take into account, as aggravating the applicant's criminality, the serious medical condition of the victim during the detention and her need for prompt medical attention.

4. The learned sentencing judge erred by fully accumulating the manslaughter sentence upon the non-parole period of the grievous bodily harm offence

  1. It is the case that the sentencing judge fully accumulated the sentence for the manslaughter offence on the non-parole period of the sentence for the grievous bodily harm offence, by ordering that the manslaughter sentence commence on 24 April 2014, the day after the non-parole period of the grievous bodily harm sentence would expire.

  1. As his Honour was sentencing for a number of offences, he was obliged to have regard to the principles governing concurrency and accumulation of sentences. These principles were discussed in Cahyadi v The Queen (2006) 168 A Crim R 41 at 47 [27] [28] per Howie J and in R v XX (2009) 195 A Crim R 38 at 48-50 [52] per Hall J.

  1. In Cahyadi Howie J said in part at 47 [27]:-

"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences........."

  1. Subject to the application of established principle, questions of concurrency and accumulation of sentences are discretionary (Hall J in XX at 48 [52])

  1. In the present case the sentencing judge considered questions of accumulation and concurrency of the sentences he was about to impose in the section of his remarks on sentence heading "Concurrency". His Honour concluded that there had to be a substantial degree of concurrency in the sentences and there is, in fact, a substantial degree of concurrency in the sentences his Honour imposed.

  1. However, there was some criminality in each offence which was not comprehended within the other offences. For example, the inflicting of the injuries other than the injury to the wrist and the sixth and seventh injuries in the list set out in his Honour's remarks were part of the grievous bodily harm offence and not comprehended in either of the other offences. The detaining of the victim in the car was part of the kidnapping offence and was not comprehended within either of the other offences. The failure to cause the victim to be restrained by a seat belt, the driving of the car off the roadway and the causing of the death of the victim were part of the manslaughter offence and not comprehended within either of the other offences.

  1. Accordingly, the sentencing judge was required to make each sentence partly cumulative on the preceding sentence or sentences. In our opinion it cannot be said that the degree of accumulation provided for by the sentences imposed by his Honour was outside a permissible exercise of his Honour's discretion.

  1. We would reject the fourth ground of appeal.

5. In the alternative to ground four, the learned sentencing judge erred by refusing to find special circumstances and adjust the ratio between the non-parole period and total term of the sentence

  1. The sentencing judge did find special circumstances in the accumulation of sentences and reduced the non-parole period of the final sentence below the statutory ratio, so that the aggregate non-parole periods were not more than three-quarters of the aggregate head sentences.

  1. It was submitted by counsel for the applicant that the sentencing judge should have made a further finding of special circumstances, so that the aggregate non-parole periods would be less than three-quarters of the aggregate head sentences.

  1. In his remarks the sentencing judge gave careful consideration to whether he should make any further finding of special circumstances and concluded that he should not. His Honour reasoned that the matters which were relied on as constituting special circumstances had already been taken into account by him in determining the head sentences and should not be counted twice in favour of the applicant. This reasoning was in accordance with authority R v Fidow [2004] NSWCCA 172 at [18].

  1. In any event, a finding by a sentencing judge that there are, or are not, special circumstances is a discretionary finding of fact and the power of the Court of Criminal Appeal to intervene with such a finding is very limited; R v el-Hayek (2004) 144 A Crim R 90 at 109 [103]. If there has been a finding of special circumstances, the size of any adjustment to the statutory ratio so as to reflect the finding of special circumstances raises so many matters of a discretionary character that the Court of Criminal Appeal will be very slow to intervene; R v Cramp [2004] NSWCCA 264 at [31]; Stoeski v R [2008] NSWCCA 230 at [25].

  1. We would reject this ground of appeal.

Conclusion

  1. We have upheld the first and second grounds of appeal relating to the sentence for the manslaughter offence, including the second ground of appeal that the sentence was manifestly excessive, and we have rejected the other grounds of appeal. It is accordingly necessary for this Court to re-sentence for the manslaughter offence.

  1. We have already referred to the facts of the manslaughter offence, the conclusions we have reached about the nature and degree of the objective seriousness of the offence and to the subjective features of the applicant, including his early plea of guilty. In our opinion, the applicant should be sentenced to a head sentence of nine years for the manslaughter offence. We would not otherwise intervene in the sentences set by the sentencing judge or in the degree of accumulation of sentences set by the sentencing judge. Like the sentencing judge, we would not find special circumstances otherwise than in the accumulation of sentences. To preserve the usual proportion between the aggregate head sentences and the aggregate non-parol periods we would reduce the non-parole period for the manslaughter offence to five years three months.

  1. Accordingly, the sentence for the manslaughter offence would be a non-parole period of five years three months commencing on 24 April 2014 and expiring on 23 July 2019 and a balance of the term of three years nine months commencing on 24 July 2019 and expiring on 23 April 2023. The total head sentence would be 15 years and the total non-parole periods would be 11 years three months.

  1. We consider the following orders should be made:-

Leave to appeal against sentences imposed on the applicant by Barr AJ on 20 September 2010 granted.

Appeal against the sentence for the offence of manslaughter allowed.

Sentence for the offence of manslaughter quashed.

In lieu thereof the applicant be sentenced for the offence of manslaughter to a non-parole period of five years three months commencing on 24 April 2014 and expiring on 23 July 2019 and a balance of term of three years nine months commencing on 24 July 2019 and expiring on 23 April 2023.

Otherwise confirm the sentences imposed by the sentencing judge.

The earliest date on which the applicant will be eligible for release on parole will be 23 July 2019.

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Decision last updated: 11 November 2011

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Cases Citing This Decision

2

R v Nguyen [2013] NSWSC 197
Peters v The Queen [2014] NSWCCA 49
Cases Cited

8

Statutory Material Cited

1

Wilson v The Queen [1992] HCA 31
Ryan v The Queen [1967] HCA 2
Wilson v The Queen [1992] HCA 31