The offender is convicted. The offender is sentenced to a non-parole period of 2 years and 3 months imprisonment commencing on 26 June 2013 and ending on 25 September 2015, with an additional term of 2 years and 3 months imprisonment, commencing on 26 September 2015 and ending on 25 December 2017. The total term of imprisonment is one of 4 years and 6 months. The offender will be eligible for parole on 26 September 2015 and her sentence will expire on 25 December 2017.
Counsel: Mr C Maxwell QC - Crown Mr W Terracini SC - Offender
Solicitors: Director of Public Prosecutions - Crown Kernaghan and Associates, Lawyers - Offender
File Number(s):
2013/194634
Publication restriction:
Nil
Judgment
INTRODUCTION
On 2 February 2015 the offender pleaded not guilty to an indictment alleging that between 30 July 2012 and 3 August 2012, at Berkeley in the State of New South Wales, she did unlawfully kill her son, to whom I shall refer as “Z”.
Z was 2 years and 7 months of age at the time of his death.
On 26 February 2015 the offender was convicted by a jury. I heard submissions on sentence on 29 May 2015.
THE OFFENCE OF MANSLAUGHTER
Manslaughter is an offence contrary to s. 18(1)(b) of the Crimes Act1900. It carries a maximum penalty of 25 years imprisonment. The maximum penalty provides a sentencing yardstick because it represents the legislature’s assessment of the seriousness of the offence: Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483 at [27]. However, careful attention to the maximum penalty does not mean that it will necessarily play a decisive role…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v A (No 5) [2015] NSWSC 670
Case
[2015] NSWSC 670
Decision Date
CaseChat Overview and Summary
In this case, the offender was convicted of manslaughter by gross criminal negligence in relation to the death of her 2 year and 7 month old son, Z. The offender had breached her duty of care to Z by failing to obtain medical treatment for him during the period in which he was obviously unwell. The offender was sentenced by Bellew J in the Supreme Court of New South Wales. The legal issues in the case related to the objective seriousness of the offending, the offender's subjective circumstances, and the appropriate sentence to be imposed. The court found that the objective seriousness of the offending fell below the mid-range, and that the offender's subjective circumstances, including her deprived upbringing, mental illness, and prospects of rehabilitation, warranted a finding of special circumstances. The court imposed a sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months.
In reaching its decision, the court considered the evidence of the offender's deprived upbringing, which included sexual, physical, and emotional abuse at the hands of her stepfather. The court found that this background had contributed to the mental illnesses from which the offender continued to suffer, including depression, anxiety, and post-traumatic stress disorder. The court also found that the offender's mental illness rendered her an inappropriate vehicle for general deterrence and that considerations of personal deterrence were of little or no significance. The court found that the offender's prospects of rehabilitation were favourable, and that the circumstances of the case warranted a finding of special circumstances.
In imposing sentence, the court considered the principles of sentencing in cases of manslaughter by gross criminal negligence, and the need for sentences in such cases to reflect considerations of general and personal deterrence. The court also considered the principles applicable to the sentencing of mentally ill offenders, and found that the offender's mental illness rendered her an inappropriate vehicle for general deterrence and that considerations of personal deterrence were of little or no significance. The court imposed a sentence of 4 years and 6 months imprisonment, with a non-parole period of 2 years and 3 months. The court found that this sentence was appropriate in the circumstances of the case, and that it served the purposes of punishment and deterrence.