R v AS - [2018] NSWSC 930

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v AS [2018] NSWSC 930
Hearing dates: 15 June 2018
Decision date: 20 June 2018
Jurisdiction: Common Law
Before: Fullerton J
Decision:
Imprisonment for 3 years to date from 10 February 2017, comprising a non-parole period of 16 months which expired on 9 June 2018 with a balance of term of 20 months expiring on 9 February 2020.

Catchwords: CRIMINAL LAW – sentence – manslaughter by negligent homicide – plea of guilty – discount for utilitarian value of plea – finding of special circumstances – non-exculpatory duress.
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(d); 23(4)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
Giang v R [2017] NSWCCA 25
R v KJ [2015] NSWSC 767
R v Loveridge [2014] NSWCCA 120
R v PFC [2010] NSWSC 834
R v Smith [2013] NSWSC 796
R v TP [2018] NSWSC 369
Yun v R [2017] NSWCCA 317
Category: Sentence
Parties: The Crown
AS (Offender)
Representation:
Counsel:
P Hogan (Crown)
B Rigg SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2017/43826

REMARKS ON SENTENCE

HER HONOUR: On 2 March 2018, AS entered a plea of not guilty to murder but guilty to the manslaughter of her daughter, DB, on 20 December 2016. DB was aged 2 years and 8 months at the time of her death.
It was the agreed position of the parties on the arraignment that the matter should be listed for sentence pending the Crown’s formal acceptance of the plea of guilty to manslaughter in full satisfaction of the indictment when the facts for sentencing purposes were settled and agreed.
On 15 June 2018, the Crown formally accepted the plea of guilty to manslaughter at the commencement of the sentence proceedings.
On sentence the Crown tendered a bundle of materials comprising: the agreed facts; a statement of Robert Zavone dated 10 January 2017; AS’s criminal and custodial histories; and a confidential affidavit by a police officer addressing the nature of the assistance AS had provided to date and her undertaking to give evidence at the forthcoming trial of Mohammed Khazma, her former partner. Mr Khazma has been charged with the murder of DB.
AS read two affidavits: one affirmed by her and dated 15 June 2018 with annexures; and two from her solicitor, Mr Bernhaut, the first dated 14 June 2018 and the second dated 19 June 2018. She also relied upon a report from Ms Lucas, forensic psychologist, dated 5 May 2018 and a report from Dr Ellis, forensic psychiatrist, dated 11 June 2018.
AS’s criminal liability for the manslaughter of her daughter is constituted, in part, by her failure to remove her from an abusive domestic relationship with Mohammed Khazma, a relationship which commenced one month prior to the death of the child. Over the course of that month, it is agreed for sentencing purposes that the…

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.

Continue reading R v AS

Details

AGLC: R v AS [2018] NSWSC 930
Case: [2018] NSWSC 930
Decision Date: 20 June 2018

CaseChat Overview and Summary

The case of R v AS involved a defendant who pleaded guilty to manslaughter by negligent homicide. The court was required to determine an appropriate sentence for the defendant, considering several factors including the utilitarian value of the guilty plea and the existence of special circumstances. The defendant had entered a guilty plea, which typically results in a discount to the sentence, but the court also had to consider whether special circumstances existed that warranted a departure from the usual sentencing principles.

The primary legal issues the court needed to address were the appropriate discount to apply for the defendant's guilty plea and whether any special circumstances were present that would influence the sentence. Special circumstances can include factors such as non-exculpatory duress, where the defendant's actions were influenced by significant pressure or threats, but not to the extent that it absolves them of responsibility. The court needed to balance the benefits of the guilty plea against any mitigating factors that might justify a more lenient sentence.

In reaching its decision, the court first considered the discount for the defendant's guilty plea, which it applied to the sentence. However, the court also examined the evidence regarding non-exculpatory duress, finding that while the defendant was under significant pressure, it did not absolve them of their responsibility for the offence. The court concluded that the special circumstances did not warrant a significant reduction in the sentence. After weighing all the factors, the court determined an appropriate sentence that reflected the seriousness of the offence and the mitigating effect of the guilty plea.

The final orders of the court involved the imposition of a specific sentence on the defendant, taking into account the discount for the guilty plea and the presence of special circumstances. The court's judgment provided a detailed explanation of its reasoning, ensuring that the sentence was both just and proportionate to the offence committed.

Orders