R v A (No 5)

Case [2015] NSWSC 670


Supreme Court


New South Wales

Medium Neutral Citation: R v A (No 5) [2015] NSWSC 670
Hearing dates:29 May 2015
Date of orders: 09 June 2015
Decision date: 09 June 2015
Jurisdiction:Common Law
Before: Bellew J
Decision:

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.

Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Briouzguine v R [2014] NSWCCA 264
Bugmy v R [2013] HCA 37; (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Elias v The Queen [2013] HCA 31; (2013) 248 CLR 483
Iskandar v R [2013] NSWCCA 235
R v A (No. 2) [2015] NSWSC 76
R v Christoff [2003] NSWCCA 52; (2003) 38 MVR 218; (2003) 140 A Crim R 45
R v Engert (1995) 84 A Crim R 67
R v Fernando (1992) 76 A Crim R 58
R v Fidow [2004] NSWCCA 172
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Foster (No 2) [2001] SASC 154
R v Isaacs (1997) 41 NSWLR 374
R v Kama (2000) 110 A Crim R 47; [2000] NSWCCA 23
R v Sam; R v Sam [2011] NSWCCA 36
R v Tuuta [2014] NSWCCA 40
R v Wilkinson [1999] NSWCCA 248
Category:Sentence
Parties: Regina - Crown
A - Offender
Representation:

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

  1. 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”.

  2. Z was 2 years and 7 months of age at the time of his death.

  3. On 26 February 2015 the offender was convicted by a jury. I heard submissions on sentence on 29 May 2015.

THE OFFENCE OF MANSLAUGHTER

  1. Manslaughter is an offence contrary to s. 18(1)(b) of the Crimes Act 1900. 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…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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