R v Chandler (No. 2)

[2017] NSWSC 1758

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Chandler (No. 2) [2017] NSWSC 1758
Hearing dates:	23 November 2017
Date of orders:	14 December 2017
Decision date:	14 December 2017
Before:	Johnson J
Decision:	For the offence of manslaughter, and taking into account the offences on the Form 1, the Offender is sentenced to imprisonment for 19 years commencing on 12 August 2017 and expiring on 11 August 2036 with a non-parole period of 13 years commencing on 12 August 2017 and expiring on 11 August 2030.  The earliest date when the Offender will be eligible for release on parole is 11 August 2030.
Catchwords:	CRIMINAL LAW – sentence - plea of guilty to manslaughter by unlawful and dangerous act - offender drove stolen vehicle through fence enclosing backyard of residential property to escape police - offender’s vehicle struck and killed 18-month old child in backyard - offender then drove dangerously in a park and on public streets in course of police pursuit - Form 1 offences of take and drive vehicle without consent, driving dangerously during a police pursuit and driving never having been licensed to be taken into account on sentence - offender 22 years old at time of offences - bad criminal history including dangerous driving during police pursuit - offender on bail at time of present offences - manslaughter offence of very high level of objective gravity - offender’s dysfunctional background - institutionalisation - application of principles in Bugmy v the Queen - issues of accumulation and totality given offender’s current sentences for unrelated matters - substantial sentence required with partial accumulation on existing sentences
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Crimes Act 1900 Road Transport Act 2013
Cases Cited:	Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 Beldon v R [2012] NSWCCA 194 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 Cameron v R (2005) 157 A Crim R 70; [2005] NSWCCA 359 Jinnette v R [2012] NSWCCA 217 Ohanian v R [2017] NSWCCA 268 R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102 R v Chandler (No. 1) [2017] NSWSC 1565 R v Falzon [2000] NSWCCA 530 R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 R v Lulham [2016] NSWCCA 287 R v McNaughton (2006) NSWLR 566; [2006] NSWCCA 242 Spark v R [2012] NSWCCA 140 The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22 The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 Wilson v The Queen (1991-1992) 174 CLR 313; [1992] HCA 31 ZA v R [2017] NSWCCA 132
Texts Cited:	----
Category:	Sentence
Parties:	Regina (Crown) Christopher Chandler (Offender)
Representation:	Counsel: Mr M Tedeschi AM QC; Mr A Morris (Crown) Mr PJ McGrath SC (Offender)   Solicitors: Director of Public Prosecutions (Crown) Aquila Lawyers (Offender)
File Number(s):	2017/81974
Publication restriction:	1. Judgment and orders may not be published until non-publication order lifted by the Supreme Court after conclusion of Offender’s District Court trial which commences on 29 January 2018: R v Chandler (No. 1) [2017] NSWSC 1565. The trial was not reached in early 2018 and was stood over to late June 2018. This non-publication order was lifted on 4 July 2018 after the Court was informed that the Offender had pleaded guilty in the District Court on 2 July 2018 and that his matters were no longer proceeding to trial in that Court. 2. The parents of Tateolena Tauaifaga, Hellina Tauaifaga and Topaz Hunia, have given their consent to the publication of Tateolena’s name and their own names for the purpose of s.15A Children (Criminal Proceedings) Act 1987, but not the names of other children (T11.33-37, 20 October 2017).

REMARKS ON SENTENCE

1. JOHNSON J: In the early evening of Thursday, 8 January 2015, the citizens of Constitution Hill in western Sydney were enjoying the pleasant summer weather. The Tauaifaga family (who lived at 5 Bessbrook Way, Constitution Hill) were at home, with four of their children playing in the backyard of the property. A number of children and adults were playing in nearby Richill Park. Little did these people know but their peaceful summer evening was soon to be shattered by a terrifying and homicidal event.

2. The Offender, Christopher Chandler, was behind the wheel of a stolen Audi motor vehicle which he had driven into Bessbrook Way, a dead-end street. The Offender was on the run from police who had located him in Constitution Hill. Unmarked police vehicles entered Bessbrook Way behind the Offender’s Audi vehicle.

3. Rather than surrender to police, the Offender decided to make good his escape. He drove the Audi vehicle through a high front fence and entered the Tauaifaga’s family backyard at speed. The vehicle collided with 18-month old Tateolena Tauaifaga causing her death. Other children in the yard were terrified and two suffered minor injuries.

4. The Offender, followed by the police vehicles, then drove through the fence at the rear of the backyard and entered Richill Park at speed. Children and adults were located in the park and they scattered to avoid the speeding vehicle. The Offender drove through the park and entered a nearby street where he drove at high speed through various suburbs, at times crossing to the wrong side of the road. The police continued the pursuit for a period before it was terminated due to the dangerous driving of the Offender.

5. The Offender continued to drive until he reached Darlinghurst where he left the vehicle and fled. The Offender was arrested six days later on the Central Coast.

History of Proceedings and the Present Offences

6. The Offender was originally to stand trial in the District Court on a charge of manslaughter and other offences and a trial date was set to commence in that Court on 1 May 2017. The Crown determined to present an indictment in the Supreme Court for murder.

7. On 7 April 2017, the Offender was arraigned in this Court on charges of murder and (in the alternative) manslaughter. He pleaded not guilty to each charge and a trial was fixed to commence on 30 October 2017. In due course, the parties both sought a Judge-alone trial and an order to that effect was made.

8. On 20 October 2017, the Offender pleaded guilty to the manslaughter of Tateolena Tauaifaga and the Crown accepted that plea in full discharge of the indictment. The Offender is to be sentenced for manslaughter by unlawful and dangerous act.

9. The maximum penalty for manslaughter is imprisonment for 25 years: s.24 Crimes Act 1900.

10. In passing sentence for the offence of manslaughter, the Offender has asked the Court to take into account on a Form 1 the following further offences:

1. on 8 January 2015, without the consent of the owner, taking and driving the Audi motor vehicle contrary to s.154A(1)(a) Crimes Act 1900;

2. on 8 January 2015, driving a motor vehicle on a road having never been licensed for that purpose contrary to s.53(3) Road Transport Act 2013;

3. on 8 January 2015, whilst driving a vehicle and knowing that police officers were in pursuit, the Offender did not stop and then drove the vehicle in a manner dangerous to others contrary to s.51B(1) Crimes Act 1900.

11. If prosecuted separately for these Form 1 offences, the maximum penalty would have been imprisonment for five years (for the s.154A(1)(a) offence), imprisonment for three years (for the s.51B(1) offence) and imprisonment for six months (for the s.53(3) offence).

Facts of the Offences

12. A more detailed narrative of the facts is required. What follows is drawn from the Statement of Agreed Facts (Exhibit A) and statements tendered by the Crown (Exhibit B) together with a narrative description of some of the events depicted visually in the DVD recording of part of the police pursuit of the Audi vehicle driven by the Offender as it passed through parts of Sydney after leaving Richill Park (Exhibit B, Tab 7). The recording was made by in-car video located in one of the police pursuit vehicles. Reference will be made, as well, to evidence given by the Offender at the sentencing hearing.

Background to the Offences

13. The Offender was born in June 1992. He was 22 years old at the time of the offences.

14. On 13 March 2013, the Offender was remanded in custody on unrelated charges, including aggravated break and enter and commit a serious indictable offence, take or detain a person whilst in company with the intention of obtaining an advantage, steal motor vehicle and receiving stolen property.

15. The Offender was granted bail on these charges by the Supreme Court of New South Wales on 16 July 2014. His bail conditions included reporting twice daily to the Redfern Police Station.

16. The Offender complied with his bail conditions for some months.

17. After 11 December 2014, the Offender ceased reporting to police as required and was in breach of his bail undertaking as a result. In his evidence at the sentencing hearing, the Offender said “I just got lazy and like forgot to report and by that time it was too late” (T25). He agreed that he may have stopped reporting because he was intoxicated with drugs (T25).

The Audi Vehicle is Stolen

18. Some time between 11.00 am and 12.40 pm on 7 January 2015, an Audi sedan was stolen from Kensington. The theft was reported to police.

Police Surveillance of the Offender on 8 January 2015

19. On 8 January 2015, police were conducting surveillance duties relating to the Offender in the area around Constitution Hill. At about noon, police observed the stolen Audi vehicle parked in the vicinity of Sherwood Street, Constitution Hill. The police had reasonable cause to believe that the Audi vehicle was being driven by the Offender. Shortly after locating the vehicle, police observed the Offender driving the vehicle with a female occupying the front passenger seat. This person was Katie Tuite, a friend of the Offender.

20. Police continued to observe the vehicle and followed it to Wentworthville where the car was parked and the Offender and Ms Tuite left the vehicle and entered a shopping centre. At that point, police installed a global positioning surveillance device on the Audi vehicle.

21. At about 7.00 pm, police located the Audi vehicle which was stationary in Bessbrook Way, Constitution Hill. A decision was made by police to apprehend the Offender in the stolen Audi by way of a covert vehicle stop as the vehicle was stationary.

22. Two Toyota LandCruiser 4WD vehicles containing members of the NSW Police Tactical Operations Unit (“TOU”) entered Bessbrook Way. Behind the TOU vehicles were two highway patrol vehicles. Other police were located in the vicinity of Bessbrook Way.

Bessbrook Way, Constitution Hill and the Offender’s Knowledge of the Area

23. Bessbrook Way is a small and narrow dead-end street that provides access to houses located upon it.

24. For part of his youth, the Offender had lived with his mother and brother in a house in Callan Way (near Bessbrook Way) that backed on to Richill Park. The Offender knew the house at 5 Bessbrook Way. It was common, at times when the house was vacant, for people to use the backyard of 5 Bessbrook Way as a thoroughfare between Richill Park and Bessbrook Way. The Offender was aware of the ability to access Richill Park through the backyard of 5 Bessbrook Way.

25. Shortly before 7.00 pm on 8 January 2015, two vehicles were parked parallel to each other on opposite kerbs in Bessbrook Way. As a result, there was a narrow gap created which allowed for the passing of only one vehicle between them on Bessbrook Way.

26. The Offender has a history of illegal drug usage. He gave evidence (which I accept) that he had used “Ice” the day before these events (T24). No doubt this contributed to the Offender being on edge at the time of these offences.

27. The Offender saw the police vehicles approaching and realised they were police vehicles. He started reversing the Audi vehicle out of Bessbrook Way slowly until it came into contact with the lead TOU vehicle.

28. According to the statement of Ms Tuite tendered at the sentencing hearing, as they sat in the Audi and saw the police vehicles, the Offender said to her “Fuck I don’t want to go back to gaol” to which she replied “I don’t want to go back to gaol either” (Exhibit B, Tab 4, paragraph 10). Under cross-examination, the Offender accepted that words to this effect had been said at that time (T24). This serves to explain what happened next.

The Offender Drives at Speed Through the Tauaifaga Backyard

29. After the Audi vehicle had come into contact with the lead TOU vehicle, the Offender accelerated forward harshly and away from the TOU vehicle and made a sharp left-hand turn across Bessbrook Way. He was heading for the fence with the intention of driving through the backyard of 5 Bessbrook Way to escape into Richill Park and beyond. He was thinking sufficiently clearly to decide to use this pathway for escape of which he was aware.

30. The Offender accelerated the Audi up the kerb and across a dirt mound into the six-foot solid Colorbond fence that enclosed the side yard of 5 Bessbrook Way. It was not possible to see through the solid metal fence. At that point, the Audi vehicle appeared to become airborne for a couple of metres.

31. The Offender was asked about his state of mind at this time in cross-examination at the sentencing hearing (T23):

“Q. You couldn't see through the Colorbond fence, could you?

A. No.

Q. You had no idea whether there were any adults, children, dogs, cats, you had no idea what was behind that fence?

A. No, I had no idea.

Q. You didn't care what was behind that fence, you just wanted to get away from the police, is that right?

A. I wanted to get away from the police.

Q. You didn't care what was behind that fence that night, you just wanted to get away from the police?

A. I didn't know what was on the other side of that fence.

Q. But you didn't care, you just wanted to get away from the police?

A. I just wanted to get out of there.

…

Q. You didn't care what was behind that fence, isn't that right?

A. Yeah.”

32. The Audi struck the fence with sufficient force to completely dislodge the fence panels.

33. The house at 5 Bessbrook Way was the home of Hellina Tauaifaga and Topaz Hunia and their children. At the time when the Audi vehicle crashed through the fence, four of their children were playing in the backyard. A four-year old girl was playing inside a cubby house. Six-year old twin girls were playing together. Eighteen-month old Tateolena was playing on her own near a pink and purple child’s bicycle close to the fence.

34. Tateolena was struck by the Audi vehicle which drove over her crushing her between the ground and the undercarriage of the vehicle. The two TOU vehicles followed closely behind the Audi through the backyard at speed. A third police vehicle stopped on the boundary line where the fence had previously been standing.

35. The six-year old girls were knocked to the ground and suffered minor abrasions and cuts as a result.

36. In response to the crashing noise, Hellina Tauaifaga entered the backyard. She located Tateolena lying on the ground on her back. Hellina screamed out for help and police performed cardio-pulmonary resuscitation on the child until ambulance officers arrived. Other police officers assisted to secure the crime scene from the crowd of neighbours that gathered.

37. The severely injured and unresponsive Tateolena was taken by ambulance to Westmead Children’s Hospital where she was pronounced dead at 8.34 pm that night as a result of head injuries sustained by her.

The Pursuit Continues Through Richill Park and Beyond

38. After colliding with the little child, the Offender continued to drive across the backyard, knocking down the rear Colorbond fencing which bordered Richill Park. He continued to drive through Richill Park where a number of people were located including children who were playing. Adults and children were forced to move quickly out of the way of the Offender and the pursuing police vehicles to avoid being hit.

39. The two TOU vehicles continued to follow the Audi through Richill Park. Whilst in the park, the TOU vehicles slowed due to the presence of members of the public and this increased the distance between the Audi and the police vehicles.

40. The Offender drove out of Richill Park onto Lurgan Street and collided with an unmarked police vehicle and other vehicles in the street. He continued to drive the Audi vehicle at high speed along streets in Constitution Hill, before driving onto the Cumberland Highway which is a major arterial road through Wentworthville.

41. As the Offender turned left onto the Cumberland Highway, a marked police highway patrol vehicle attempted to stop the Audi. The Offender continued onto the Cumberland Highway and a pursuit was initiated. The Audi vehicle driven by the Offender travelled at speeds of up to 130-140 kms per hour in a 80 kms per hour zone. He drove through several red lights. At Old Windsor Road, the Offender drove the Audi vehicle onto the incorrect side of the road for approximately 800 metres which caused road users coming in the opposite direction to take evasive action.

42. Ms Tuite later told police that, during the whole of the time that she was in the car with the Offender, she was screaming. In his evidence, the Offender confirmed that Ms Tuite was screaming during the course of these events. He said he could not remember if she was asking him to stop as he “was just focused on getting myself out of there, not really what she was doing” (T25).

43. The terrifying nature of the Offender’s course of driving on major roads after leaving Richill Park is demonstrated starkly in the DVD recording taken from the following police vehicle. The recording depicts parts of the high speed chase from Ferndale Close in Constitution Hill to an area near Seven Hills Road and Marina Road at Winston Hills. It is completely clear that the Offender’s course of driving on these roads placed multiple members of the public at great risk of serious harm or worse.

44. The Offender was asked under cross-examination (T20):

“Q. Do you agree that you were putting members of the public who were in the vicinity of those roads in extreme danger?

A. Yes, I do.

Q. It would have been very simple for somebody to have been seriously injured or even killed?

A. Yes, it would have been.

Q. And you knew that at the time, didn't you?

A. Yes.

Q. You were prepared to put your own interest in getting away from the police above the lives of other people?

A. I just wanted to get out of there, yes,.

Q. Were you prepared to put your own interests of getting away and escaping from the police above the lives of other people?

A. I didn't, I didn't think of that at the time. I just wanted to get out of there. I wasn't thinking about hurting anyone or anything like that, I was just thinking about getting out of there as fast as I could.

Q. You realised at the time that you were putting the public at danger?

A. Yeah, I did at some stage, yes.”

45. The pursuit continued onto Seven Hills Road and then Bingara Crescent at Baulkham Hills where the Audi lost the rear driver’s side tyre. At this point, the police pursuit was terminated due to the dangerous driving of the Offender.

46. The Offender continued to drive the Audi vehicle along the M2 Motorway and Warringah Freeway towards Sydney. He drove through Darlinghurst before stopping the vehicle on Bourke Street in the middle of the road. The Offender left the vehicle and he and Ms Tuite ran away through Taylor Square. Police arrived soon after and apprehended Ms Tuite. The Offender was not located. He had fled to Gorokan on the Central Coast.

47. Forensic examinations carried out on the Audi vehicle and the TOU vehicles demonstrated that the undercarriage of the Audi vehicle was of sufficient height to strike the child when lying on the ground whilst the undercarriages of the TOU LandCruisers were too high to have caused the injuries.

45. As a result, the parties accept and I find that it was the Audi vehicle driven by the Offender which struck the child thereby causing fatal injuries.

Arrest of the Offender

49. The Offender was arrested in Gorokan at about 4.30 pm on 14 January 2015. He declined to answer police questions after being advised of his right of silence.

50. The Offender has remained in custody since his arrest on 14 January 2015 for these matters, as well as the other matters for which he had been on bail and in relation to which he has since been convicted and sentenced in the District Court.

The Offender’s Subjective Circumstances

51. As mentioned earlier, the Offender was 22 years old at the time of the offences and is now 25 years of age.

52. Tendered for the Offender at the sentence hearing were a report dated 13 November 2017 from Patrick Sheehan, forensic psychologist, and a number of earlier reports concerning the Offender including background reports prepared by the Department of Juvenile Justice in 2008 and 2009. These reports were utilised for various sentencing decisions to which reference will be made shortly.

53. Mr Sheehan gave evidence at the sentencing hearing as did the Offender.

The Offender’s Dysfunctional Upbringing

54. The Offender is the eldest of four children - there being a younger brother and two younger half-brothers.

55. The evidence of Mr Sheehan, the Department of Juvenile Justice reports and the Offender’s own evidence reveal a family upbringing which was almost entirely devoid of developmental support. The Offender’s parents were drug addicts. He hardly knew his father, a heroin addict and armed robber who abused his mother and left her. The Offender did get to re-establish contact with his father when they shared a prison cell in 2014 at Parklea Correctional Centre. The subsequent partner of the Offender’s mother, who is the father of the Offender’s younger half-brothers, was himself a violent and abusive criminal.

56. The Offender’s mother moved the children around the State, disrupting their schooling and development. She was unable to care for them. The Department of Community Services was often called on to intervene for the welfare of the children. Despite his family upbringing, the Offender connected emotionally with his mother and he was badly affected by her death when he was 16 years old. By that time, the Offender was a regular and heavy user of alcohol and illegal drugs. His abuse of illegal drugs increased following his mother’s death.

57. The only adult with whom the Offender had a stable and positive relationship was his grandmother, with whom he lived when on bail after 16 July 2014.

58. The Offender had a difficult and disrupted education. His school history was marked by periods of suspension and expulsion. He completed his Year 10 certificate through Sydney Distance Education whilst in custody in 2008. He has not undertaken any further studies. In terms of literacy, the Offender informed Mr Sheehan that he reads the newspaper whenever possible and at times reads fiction novels. He demonstrated his capacity to read to Mr Sheehan.

59. The Offender has had no appreciable period of paid employment. He worked for a removalist company for a period of two months whilst on bail in about 2014. However, he was dismissed as he could not comply with his reporting conditions and attend for work on time.

60. The Offender has a long history of use and abuse of drugs. He started using cannabis at the age of 11 years and was consuming substantial quantities of alcohol by the time he was 13 years old. He commenced smoking methylamphetamine (“Ice”) from the age of 19 years.

61. Mr Sheehan noted that the Offender had been exposed to antisocial influences from an early age in his local social milieu and in the family home. His early formative experiences led him to believe that unemployment, uncontrolled substance use, violence and crime were a normal part of life. This is an accurate summary of the Offender’s family life. With the exception of his grandmother, he has had no nexus to conventional and responsible social groups in the community.

62. Mr Sheehan reports (and I accept) that the Offender has never been in a stable and enduring relationship or cohabited with a partner, tending towards brief tumultuous relationships with other substance-using partners. The Offender has no children.

63. The Offender has an extended history of involvement with mental health services since his childhood. He has been diagnosed at different times with ADHD, schizophrenia, bipolar disorder, schizoaffective disorder and drug-induced psychosis. Various medications have been utilised in his treatment over the years.

64. Mr Sheehan expressed the opinion that, whilst the Offender is vulnerable to major mental illness as evidenced by his family history, it is more likely that the bulk of his past psychotic symptoms have been in the context of heavy substance abuse. The Offender exhibits no psychotic phenomena at present. In expressing these opinions, Mr Sheehan had regard to a psychiatric report of Dr Gerald Chew, forensic psychiatrist, dated 5 June 2015 which supported these opinions.

65. The present diagnosis of the Offender includes major depressive disorder and antisocial personality disorder.

The Offender’s Previous Offences

66. Despite his relative youth, the Offender has a substantial criminal history. In addition to the criminal history itself, the facts of a number of the Offender’s previous offences were placed before this Court on sentence for the present charges. Of course, the Offender is not to be sentenced once again for his past offences which were disposed of before other courts. However, the past offences have relevance to sentence for the present matters in a manner which will be explained later in these reasons.

67. It will be apparent that sentencing courts (particularly the Children’s Court) provided the Offender with opportunities for rehabilitation, supervision and treatment on a number of occasions, no doubt in recognition of his poor family history and dysfunctional upbringing.

68. It should be kept in mind that the Offender has never held a licence to drive a motor vehicle.

69. On 21 April 2007, the Offender (then aged 14 years) committed offences of taking and driving a vehicle without the consent of the owner and driving the vehicle in a dangerous manner. The matters came before the Parramatta Youth Drug Court and in due course, the Offender was dealt with by way of probation for these offences. These offences involved the Offender driving a stolen Toyota Camry motor vehicle on the evening of 21 April 2007 on the Cumberland Highway at Canley Heights in circumstances where a police pursuit resulted. The vehicle driven by the Offender reached speeds of 100 kms per hour at times whilst swerving between different lanes with other vehicles being required to take evasive action. The Offender left the vehicle and was arrested a short time later by police.

70. A few days later on 24 April 2007, the Offender committed further offences of taking and driving a vehicle without the consent of the owner and driving the vehicle dangerously. These offences involve the Offender driving a stolen vehicle on various roads in Constitution Hill in an erratic fashion which drew the attention of police. The Offender was apprehended soon after in that area. In due course, on 17 December 2007, the Offender was dealt with by way of control orders and probation for these offences.

71. On 12 May 2007, the Offender committed further offences of taking and driving a vehicle without the consent of the owner, driving the vehicle dangerously, being an unlicensed driver and possession of implements to enter and drive a vehicle. On 17 December 2007, the Offender was sentenced at the Parramatta Youth Drug Court to custodial sentences involving control orders. The Offender was sentenced at the same Court on 17 December 2007 for other offences involving break and enter with intent to steal, entering a building with intent to commit an indictable offence and common assault, for which a combination of a control order and probation periods were ordered.

72. The driving offences committed by the Offender on 12 May 2007 were the subject of submissions at the present sentencing hearing because of substantial similarities between those offences and the present offences committed by the Offender on 8 January 2015. It is appropriate to refer to the circumstances of the 12 May 2007 offences, whilst noting that those events occurred some eight years prior to the present matters and at a time when the Offender was almost 15 years of age.

73. On the evening of Saturday, 12 May 2007, a Toyota Camry motor vehicle was stolen from a car park at Wentworthville. Later that evening, that vehicle (driven by the Offender) was involved in a police pursuit around Wentworthville. The Offender drove the stolen vehicle at times at high speeds on the incorrect side of the road including driving through a red light as well as driving into a dead-end street. After driving into the dead-end street, the Offender drove at speed over a gutter and through a steel barricade and copper log area at the end of the street and entered Arrunga Reserve at Wentworthville causing moderate front-end damage to the stolen vehicle and extensive damage to the barricade.

74. The Offender then drove through the Reserve, a grassed area that backed onto a Housing Commission estate in Wentworthville. Police estimated that the Offender drove at a speed of 70-80 kms per hour through the Reserve and was driving from side to side in a fishtail motion on wet grass through the Reserve. At one point, the Offender’s car became airborne after driving over a crest in the Reserve. The Offender continued through another metal pole fence leading to Portadown Road where he braked heavily, sliding for some distance. At this point, a set of copper logs blocked the Offender driving the stolen vehicle from entering nearby Keady Way, a street off Portadown Road.

75. By this stage, police had stopped about three metres behind the stolen vehicle, at which point the Offender reversed, colliding with the police vehicle. The Offender attempted to drive away. Police approached the Offender (who was in the driver’s seat of the vehicle) and attempted to open the driver’s door. The Offender then drove away from police through a metal fence and back along Arrunga Reserve at an estimated speed of 70 kms per hour. Whilst doing this, the Offender’s driving was erratic due to his inability to control the vehicle on the wet grass.

76. The Offender then approached Harris Street, Wentworthville and lost control of the stolen vehicle which spun 180 degrees and slid into a fence. Police stopped their vehicle about three metres from the stolen Toyota Camry and the Offender drove and collided head on with the police vehicle. This collision wedged the stolen vehicle between the police car and a nearby fence. The police then approached the Offender who was in the driver’s seat and arrested him. Inside the stolen vehicle at the time of the Offender’s arrest were two young female passengers.

77. On 20 March 2008, the Offender was dealt with at the Campbelltown Children’s Court for an offence of assault occasioning actual bodily harm committed in November 2007, for which a control order was made.

78. On 29 May 2008, the Offender was dealt with at Parramatta Children’s Court for offences of break, enter and steal committed in October 2007 for which control orders were made.

79. On 4 March 2009, the Offender was sentenced at the Parramatta Children’s Court to probation for offences of break and enter with intent to steal and possession of an implement to enter and drive a vehicle.

80. On 31 August 2009, the Offender was sentenced at the Parramatta Youth Drug Court for an offence of driving a vehicle dangerously. In addition, he was disqualified from driving for a period of one year. At the same time, he was sentenced for an offence of taking and driving a vehicle without the consent of the owner, with a control order being made for that offence. Those offences were committed on 6 April 2009 (when the Offender was 16 years old). The Offender was driving a stolen Holden motor vehicle in an erratic fashion and exceeding the speed limit and was pursued by police on the streets of Toongabbie, before eventually being arrested by police. Those sentences were confirmed on appeal at the Parramatta District Court on 18 September 2009.

81. Also before the Parramatta District Court on 18 September 2009 were appeals against sentence by the Offender with respect to offences of driving a vehicle taken without the consent of the owner, a mid-range PCA offence and driving a vehicle when never licensed to do so. The District Court varied the sentence by way of control order so as to allow the Offender an opportunity for extended supervision by the Department of Juvenile Justice with drug and alcohol counselling, grief and loss counselling and educational and vocational programs to be applied to assist the Offender.

82. On 6 April 2010, the Offender was sentenced in the Bidura Children’s Court by way of control orders for offences of aggravated break and enter and commit serious indictable offence, driving a vehicle dangerously and driving whilst disqualified together with probation for an offence for driving a conveyance taken without the consent of the owner. The Offender was disqualified for a further period of two years from 31 August 2010 for these offences.

83. On 25 May 2011, the Offender was sentenced at the Wollongong Local Court to terms of imprisonment for offences of taking and driving a conveyance without the consent of the owner and driving whilst disqualified, with these offences having been committed in November 2010. For these offences, the Offender was disqualified for a period of two years commencing on 31 August 2012.

84. On 23 August 2012, the Offender was sentenced to terms of imprisonment at the Parramatta District Court for offences of aggravated break and enter and commit serious indictable offence, break enter and steal and break and enter with intent to steal with these offences having been committed in April 2011. The Offender was sentenced to imprisonment for two years and seven months commencing on 5 May 2011 with a non-parole period of one year and five months expiring on 4 October 2012.

85. As mentioned earlier, the Offender was arrested on 13 March 2013 and charged with several serious offences and remained in custody until his release on bail on 16 July 2014.

86. After being arrested on the present matters on 14 January 2015, the Offender proceeded to trial on the earlier charges and was found guilty in the Parramatta District Court where he was sentenced on 26 February 2016 for offences of aggravated break and enter and commit serious indictable offence and take or detain in company with intent to obtain an advantage. The total effective sentence for these offences involved imprisonment for a period of 11 years commencing on 12 August 2013 and expiring on 11 August 2024 with a non-parole period of seven years and three months commencing on 12 August 2013 and expiring on 11 November 2020. The facts of those offences are not before this Court, but it is clear from the magnitude of the sentences that they were very serious offences.

87. The Offender is serving these sentences at the present time and it will be necessary to have regard to this feature with respect to issues of accumulation, totality and special circumstances when passing sentence for the present offence.

Objective Gravity of the Offences

The Manslaughter Offence

88. The Crown submitted that this offence of manslaughter lay within the worst category of the crime of manslaughter. Senior Counsel for the Offender acknowledged that this was an objectively serious offence of involuntary manslaughter, but he submitted that the offence did not lie in the category advanced by the Crown.

89. It is important to keep in mind the nature of this offence. The Offender is to be sentenced for involuntary manslaughter in the form of manslaughter by unlawful and dangerous act. The Offender’s plea of guilty admits that it was his unlawful act that caused death and that it was dangerous in the sense that a reasonable person (in the position of the Offender) would have realised that the act exposed another person to an appreciable risk of serious injury: Wilson v The Queen (1991-1992) 174 CLR 313; [1992] HCA 31 at 333; The Queen v Lavender (2005) 222 CLR 67; [2005] HCA 37 at 70 [2], 82 [38].

90. It is necessary to keep in mind the distinction between manslaughter and murder by reckless indifference to human life - where, at the time the accused person committed the act causing death, he or she foresaw or realised that the act would probably cause the death of a person but the accused continued to commit the act regardless of that consequence: The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22 at 469-470.

91. The Crown submitted that a finding should be made that the Offender himself (and not just a reasonable person) actually realised that his act of driving through the fence and into the backyard exposed another person or persons to an appreciable risk of serious injury. This was the basis upon which the Crown argued that this offence fell into the worst category of manslaughter. Senior Counsel for the Offender submitted that the Court would not be satisfied beyond reasonable doubt that the Offender had such a realisation in this case, with the finding rising no higher than the Offender wishing single-mindedly to escape without thinking of others.

92. In approaching this issue, I keep in mind the distinction between manslaughter and murder by reckless indifference to human life (see [89]-[90] above). The issue here is whether the Court should be satisfied beyond reasonable doubt that the Offender himself realised, at the time he drove through the fence, that his actions exposed another person to an appreciable risk of serious injury. The question is not whether he foresaw or realised that the act would probably cause death but continued with it anyway.

93. I make the following findings concerning the manslaughter offence:

1. the Offender was familiar with the vicinity of Bessbrook Way, Constitution Hill as at 8 January 2015 - he had lived in the area in the past and he knew that it was possible to get from Bessbrook Way to Richill Park by travelling through the backyard of residential premises at 5 Bessbrook Way;

2. the Offender knew that the area was populated by many young families and was aware that there was a prospect that children and others may be in the residential backyard of 5 Bessbrook Way as at 7.00 pm on a warm summer evening - however, I do not find that he had actual knowledge of that fact at that time - he could not see into the backyard because of the fence;

3. the Offender drove in this way in the early evening of 8 January 2015 whilst it was still daylight and sunny - he was not driving through a residential backyard in the middle of the night when residents may be expected to be lying safely in their beds or driving through a private commercial or industrial property after working hours;

4. in an effort to avoid apprehension by the police, the Offender determined to drive at high speed through the high Colorbond fence at the front of the private residential property for the purpose of then travelling through the rear fence and into Richill Park to facilitate his getaway;

5. the Offender had been using “Ice” the day before this event although he had managed to drive quite long distances that day - his judgment was affected to some extent, but he was no stranger to the use of illegal drugs so that this fact should have come as no surprise to him;

6. the Offender had never held a driver’s licence in his life and had demonstrated in the past a propensity to drive dangerously;

7. the Offender’s subsequent course of driving in Richill Park and beyond demonstrates the Offender’s gross course of conduct and sheds some light upon his state of mind immediately before he drove through the backyard of 5 Bessbrook Way - the Offender did not care for the safety of persons whom he could see in the park and public streets - he did not care for the safety of persons who may have been in the residential backyard at 5 Bessbrook Way;

1. I do not find that the Offender was aware that he had struck the little girl in the backyard - his passenger, Ms Tuite, noticed children in the backyard, but did not see that a child had been struck - the Offender was effectively hell bent on his own escape without any concern for other persons on private property or in public places and public streets - however, I do not find that he drove away from the backyard with actual knowledge that he had struck a child.

94. I am satisfied beyond reasonable doubt that the Offender realised that there was an appreciable risk of serious injury to persons in the backyard when he drove through the fence of the property. Accordingly, it was not just a reasonable person who had such a realisation in this case. The Offender himself had this realisation as well. It is important to keep in mind that this finding is one of realisation of appreciable risk of serious injury. It is not a finding that he realised that a person was probably in the backyard.

95. It has been said that manslaughter can take an infinite number of forms with varying degrees of gravity: R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 at 27 [133]-[134].

96. I am well satisfied that this offence of manslaughter is at the gravest end of the spectrum of crimes of involuntary manslaughter. A little child died because the Offender chose to use the vehicle he was driving as a battering ram to enter private property to assist his escape from police in the course of a desperate and self-obsessed course of conduct on his part. He realised there was an appreciable risk of serious injury to another person when he did so.

The Form 1 Offences

97. In passing sentence for the manslaughter offence, the Court is to take into account the three further offences referred to earlier in these remarks (at [10] above).

98. In doing so, the Court will have regard to these further offences with a view to increasing the penalty that would otherwise be appropriate for the manslaughter offence. The Court gives greater weight to the need for personal deterrence and the community’s entitlement to exact retribution for serious offences: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at 425-426 [22]. This approach would generally lead to the imposition of a longer sentence (and in some cases, a significantly longer sentence) than would otherwise be required if the Form 1 offences were not taken into account: Abbas v R at 426 [23].

99. The Court does not impose a distinct penalty for the Form 1 offences to be taken into account and it is not appropriate to quantify the period or periods which may attach to these offences in taking them into account on sentence for manslaughter: Abbas v R at 421 [14], 425-426 [22].

100. In proceeding in this way, the Court is, of course, limited by the maximum penalty for the primary offence of manslaughter. The principle of totality also has some application: Attorney General’s Application Under Section 37 of the Crimes (Sentencing Procedure) Act 1999 (No. 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518 at 158-159 [39]-[42].

101. An assessment of the objective gravity of the Form 1 offences will assist the process of taking these matters into account on sentence. Each of the Form 1 offences is objectively serious.

102. The offence of taking and driving the Audi vehicle without the consent of the owner was a serious offence committed by a person with a significant history for this class of offence.

103. The Offender had multiple offences of driving whilst never having been licensed or driving whilst disqualified so that the offence of driving never having been licensed was a serious example of an offence of this type.

104. The offence of driving dangerously during the course of a police pursuit is especially grave. The Offender’s course of driving in this case was dangerous in the extreme and involved driving through a park whilst persons were present and then on various public streets in ways that imperilled multiple members of the public. The Offender had a significant history for this class of offence despite his relative youth.

105. The manslaughter offence involved driving onto private property where the fatality occurred. The police pursuit Form 1 offence involved highly dangerous driving on public streets and in a public place. Although the police pursuit offence formed part of the same course of conduct as the manslaughter offence, there was a significant difference between the location of the two offences so that the police pursuit offence (in particular) will operate to increase the sentence for the manslaughter offence.

106. The Form 1 offences in this case will play a significant part on sentence for the manslaughter offence.

Statutory Aggravating and Mitigating Factors

107. It was common ground that the offence of manslaughter was aggravated as it was committed in the backyard of the premises which constituted the home of the victim: s.21A(2)(eb) Crimes (Sentencing Procedure) Act 1999. This was a violation of the reasonable expectation of members of the Tauaifaga family that their children would be safe and secure in their own backyard: R v Lulham [2016] NSWCCA 287 at [5]-[6].

108. It was accepted that the manslaughter offence was aggravated by the fact that it was committed in the presence of three of the siblings of Tateolena, each of whom was aged well under 18 years (namely, four years and the six-year old twins): s.21A(2)(ea). Not only did three young children witness the offence, they were undoubtedly terrified by what they saw and the consequences of the crime upon their little sister.

109. The Crown submitted that the Offender’s prior criminal history was such as to constitute the aggravating factor under s.21A(2)(d) and Senior Counsel for the Offender accepted that this was so in this case. The Offender’s prior convictions (including his prior offences of dangerous driving during police pursuits) are pertinent to deciding where, within the boundary set by the objective circumstances of the present offences, a sentence should lie: R v McNaughton (2006) NSWLR 566; [2006] NSWCCA 242 at 574 [26]. This operates, in particular, by reference to the Offender’s attitude of disobedience to the law and to the increased weight to be given to retribution, personal deterrence and protection of society. The use of the prior record is not restricted only to the Offender’s claim for leniency: R v McNaughton at 573 [20]. However, the prior record cannot be given such weight as to lead to imposition of a penalty which is disproportionate to the gravity of the offence.

110. As the Offender was on bail and thus subject to conditional liberty at the time of the present offences, it was accepted that this was a further aggravating factor on sentence: s.21A(2)(j). However, this was not simply a case of an offence committed whilst subject to conditional liberty. The Offender committed these offences in an effort to escape justice and the consequences of his bail breaches. This heightens the gravity of this factor on sentence.

111. It was common ground that the offence was not part of a planned or organised criminal activity: s.21A(3)(b). It should be kept in mind, however, that the Offender was on the run from the police at the time and that he effectively made a spur-of-the-moment decision (using his local knowledge) to drive through the fence and the backyard to assist his escape. Although he had not made an earlier plan to utilise this method of escape, it constituted a particular step which he decided quickly to take to advance his overall desire to escape the police.

The Offender’s Plea of Guilty

112. It was submitted for the Offender that he should receive a significant discount for his plea of guilty to reflect both its utilitarian value and his remorse and contrition.

113. The Crown submitted that the plea of guilty was late and was made in the face of a very strong Crown case so that, although there was some utilitarian value, the plea did not provide any real evidence of remorse.

114. The Offender did not offer to plead guilty to manslaughter until a period not long prior to his trial which was listed to commence on 20 October 2017. Initially, he had pleaded not guilty to the charge of manslaughter in the District Court. When the proceedings were transferred to the Supreme Court with the charge of murder being added (with manslaughter in the alternative), the Offender pleaded not guilty to both charges. The timing of his plea of guilty to manslaughter was very late. This is not a case where there was an earlier offer to plead guilty to manslaughter which was rejected by the Crown before being accepted just prior to the scheduled trial.

115. It was submitted for the Offender that it was not until the service by the Crown of an expert report of Mr Renzo Alessi dated 20 April 2017 that it was demonstrated clearly that it was the Offender’s vehicle which fatally struck the child and not one of the police vehicles. I accept the Crown submission that the Offender was liable to conviction for manslaughter in the circumstances of this case which ever vehicle struck the child. The Offender drove through the fence to escape police vehicles. I am satisfied that he foresaw the possibility that the police vehicles would follow him as they did. But for the Offender’s actions, no vehicle would have entered the backyard. As a matter of law, it did not matter which vehicle struck the child. In my view, the Offender was always liable to conviction for manslaughter.

116. The utilitarian value of the Offender’s very late plea of guilty to manslaughter is limited. In all the circumstances, I propose to allow a five per cent discount for the Offender’s plea to reflect its utilitarian value.

Remorse, Contrition, Moral Culpability and Likelihood of Reoffending

117. I am not persuaded that the plea of guilty is of any great assistance to the Offender on issues of remorse and contrition.

118. I do accept that the Offender has developed some insight into the enormity of his crime although it has taken some considerable time for that process to occur. The Offender was, at all times, legally and morally responsible for the death of the child in the form of manslaughter. His plea of guilty manifests contrition and remorse to a limited extent only, in particular given the strength of the Crown case against him.

119. The Offender read a letter of apology to the family of the victim in his evidence at the sentencing hearing. He accepted responsibility for what he had done.

120. Having observed the Offender giving evidence, and having regard to the totality of the evidence before the Court, I accept that the course which he has taken here involves a belated acceptance of responsibility on his part. It reflects, as well, an understanding on his part that a substantial term of imprisonment will be imposed for these offences which will increase very significantly his present sentences. The extreme gravity of his present position has dawned on him, although it has taken the death of a child for the Offender to reach this point.

121. I accept that the Offender’s moral culpability is modified to an extent by application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Ohanian v R [2017] NSWCCA 268. The Offender has a dysfunctional background which has operated to a degree to compromise his capacity to mature and learn from experience. It is necessary to have regard to these considerations in undertaking the sentencing process in this case. At the same time, it is necessary to keep in mind the need for protection of the public in imposing sentence: Bugmy v The Queen at 595 [44]. Where the Offender has starkly exposed many members of the public to the risk of harm and one person to the reality of death, then these considerations are pertinent as well in the process of instinctive synthesis.

122. The submissions made on his behalf acknowledge the fact that the Offender, at the age of 25 years, “is an institutionalised criminal”. I agree with this description which accords, as well, with Mr Sheehan’s report. It is the unhappy fact that the Offender has only been out of custody for a total of less than 15 months between the ages of 17 and 25 years.

123. The Offender's bleak history was summarised (accurately) by Mr Sheehan in the following way:

"His background is of extreme deprivation and disadvantage in childhood, undermining his ability for suitable personality formation, emotional-regulation, stable attachment and socialisation. Severe behavioural disturbance emerged in childhood and despite external (medication and counselling) intervention, his domestic milieu was so damaging that his adjustment only worsened into adolescence, further aggravated by polysubstance use disorder and then the sudden loss of his mother when aged 16 years. He has engaged in a nihilistic lifestyle involving criminality in adolescence and early adulthood, with no understanding of how to go about navigating community life in a positive way, learning to manage his own unstable affect with substance use. In this way he has followed the sad example set for him in his childhood environment. He acknowledges the index offence in a way that suggests that he appreciates the terrible gravity of the loss, but is at this stage unable to withstand the psychological burden."

124. It may be seen that features of the Offender’s conduct have been self-destructive (as well as destructive of others), this being conduct which is sometimes observed in institutionalised persons: Jinnette v R [2012] NSWCCA 217 at [99]-[101].

125. If the Offender is already institutionalised (and I accept that he is to a considerable extent), then he is dependent upon an institution such as prison to the point that he cannot live successfully outside it. If this is already the case, then the position can only become worse by way of the lengthy term of imprisonment which must be imposed for these offences as well as the sentences he is presently serving. It is no answer to the Offender’s situation to consider the imposition of a sentence which does not reflect the objective gravity of his offences.

126. At the same time, the Court is required to take into account the Offender’s dysfunctional upbringing and compromised moral culpability on issues including personal and general deterrence, whilst at the same time keeping in mind the powerful need for protection of the community.

127. Senior Counsel for the Offender submitted that protection of the community would be served here by the Offender being given opportunities for rehabilitation and a longer than usual balance of parole period. I accept that the Offender wishes to take steps at this point in his life to change things for the future. However, what he must do is demonstrate (and not just say) that this is his plan. It is hoped that programs may be available to the Offender in prison which will allow him an opportunity to prove to correctional authorities, and ultimately the State Parole Authority, that he is capable of living lawfully in the community.

128. An objective conclusion with respect to the Offender’s risk of reoffending is, at best, uncertain. The Offender’s past history provides no comfort in this respect. The position is compounded further by the fact that the Offender is already serving a lengthy term of imprisonment which will be extended significantly by the sentence to be imposed upon him for the present offences.

129. The Courts have recognised the imprecise nature of the process which involves an assessment of an offender’s risk of reoffending, in particular where a lengthy sentence is to be imposed so that there is no prospect of the offender being released into the community at an early time: Beldon v R [2012] NSWCCA 194 at [53]. Of course, it is the risk of reoffending which the Court must consider and that risk can only be regarded as a significant one with respect to the Offender.

Other Factors on Sentence

130. It was submitted for the Offender that the Court should have regard to the fact that he has been a target of violence and retaliation in custody because of the nature of the offence he has committed. The Offender is in a form of restricted custody for these reasons which limits the programs, facilities and benefits to which he may otherwise be entitled. I take this aspect into account on sentence.

131. I have regard, as well, to the need for personal and general deterrence to be reflected in the sentence. Some modification is required in this respect by operation of the principles in Bugmy v The Queen.

Victim Impact Statements

132. The Court received victim impact statements from Tateolena’s parents, Hellina Tauaifaga and Topaz Hunia.

133. The Crown made application under s.28(4) Crimes (Sentencing Procedure) Act 1999 that the victim impact statements be considered and taken into account by the Court, in determining punishment for the offence of manslaughter, on the basis that the harmful impact flowing from Tateolena’s death on the members of the family constitutes an aspect of harm done to the community. I am satisfied that the contents of the victim impact statements should be taken into account in this way: s.3A(g) Crimes (Sentencing Procedure) Act 1999.

134. The terrible consequences of this offence for the Tauaifaga family were described graphically in the victim impact statements. The terror of Tateolena’s mother at finding her little daughter injured fatally was accompanied by the horror of the children in the backyard who witnessed the terrifying events which constituted this crime.

135. I approach the sentencing of the Offender upon the basis that these children will never forget the terrible images and memories left with them as a result of what they saw in what should have been their safe family backyard on this evening. Each of the children has ongoing problems which are described in the victim impact statements. The family has suffered as a whole as a result of this offence and the loss and grief which they are experiencing will be permanent. The Offender’s crime has caused substantial harm to the community.

136. As stated during the sentencing hearing, I once again express the condolences of the Court and the community to the whole family for the loss of their daughter and sister. In saying this, I realise that words are of limited comfort to the family in their grief.

Other Manslaughter Sentencing Cases

137. The Court was provided with sentencing decisions in other motor manslaughter cases: R v Falzon [2000] NSWCCA 530; Cameron v R (2005) 157 A Crim R 70; [2005] NSWCCA 359; R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102; Spark v R [2012] NSWCCA 140. These cases illustrate the sentencing outcome in the particular circumstances of each case. A range of sentence is not demonstrated by these cases.

138. To the extent that comparison with the facts of other cases bears upon the assessment of sentence in this case, I express the view that the objective gravity of the present case is greater than in any of the cases to which reference has been made, the closest being Spark v R. The present case, however, involves manslaughter committed on private property (a suburban residential backyard) followed by highly dangerous driving during a police pursuit in a public park and then on public streets. This is an unusual and especially grave combination of events. To be added to these aspects was the fact that the Offender had never been licensed and was driving a stolen vehicle at the time.

139. I do not regard these other decisions as being useful guideposts on sentence so that it is not necessary to outline the facts of those cases in these remarks.

Determining an Appropriate Sentence

140. The starting point is that every crime of manslaughter involves the criminal taking of a human life. However, the actions of this Offender represent unlawful and dangerous manslaughter of the gravest type.

141. For reasons explained earlier in these remarks, this was an offence of manslaughter at a very high level of gravity. A number of statutory aggravating factors operate against the Offender on sentence for this crime.

140. The Form 1 offences to be taken into account on sentence are themselves very serious ones. The Offender has displayed a propensity for high-speed chases involving police pursuits. Although his earlier offences were committed when he was a young person, he was an adult by the time he committed manslaughter followed by the offence of dangerous driving during a police pursuit. The gross irresponsibility of his actions is compounded by the fact that he has never held a driver’s licence in his life. The fact that once again he was driving a stolen vehicle indicates an entrenched pattern of criminal conduct.

141. The Offender had been treated with some leniency on earlier occasions as a juvenile offender and then as an adult offender. Sentencing courts have demonstrated a degree of understanding and sensitivity with respect to his dysfunctional upbringing. He was given opportunities by sentencing courts by orders involving conditional liberty which did not seem to make any real difference.

142. At the time of the present offences, the Offender was on bail for very serious offences for which he has since been convicted and sentenced to a lengthy term of imprisonment.

143. It is necessary for the Court to take into account the Offender’s deprived upbringing and dysfunctional family life. The principles in Bugmy v The Queen have considerable operation in this case. I have taken these matters into account with respect to the Offender’s moral culpability and the lesser role of personal and general deterrence and the strong desirability of rehabilitative measures being undertaken.

144. At the same time, the Court must keep in mind the protection of the community. The Offender has demonstrated a sustained pattern of serious crimes which has placed the community at risk and has culminated in the death of a young child at his hands.

145. It is to be hoped that the Offender will have an opportunity to participate in custodial programs which he has indicated a desire to undertake. It will be up to the Offender to make the most of opportunities in custody to lay the groundwork for a lawful return to the community. No one else can do this for him.

146. If the Offender is truly minded to change his entrenched pattern of criminality, then the parole authorities will have an opportunity to assess his progress in the years to come.

147. Having regard to the objective gravity of the offence of manslaughter (and taking into account the serious Form 1 matters), and having considered the Offender’s subjective circumstances and all other factors that bear on sentence, the starting point head sentence will be 20 years’ imprisonment. After application of the five per cent discount for the plea of guilty, the head sentence will be imprisonment for 19 years.

148. I have had regard to principles concerning accumulation and totality. The sentence to be imposed will extend very significantly the Offender’s existing sentence. I have considered submissions made concerning the avoidance of a “crushing” sentence. In this respect, I have applied the principles in ZA v R [2017] NSWCCA 132 at [68]-[88]. The imposition of a lengthy sentence is unavoidable in this case. It is appropriate that the sentence be accumulated to a significant extent upon the Offender’s present sentence. I note that the present sentence operates from 12 August 2013. I am satisfied that the sentence I am about to pass should commence on 12 August 2017.

149. Having regard to the degree of accumulation upon the present sentence which commenced on 12 August 2013, I find special circumstances by reference to that accumulation. The non-parole period will comprise a term of 13 years commencing on 12 August 2017.

150. The finding of special circumstances will see a non-parole period of 13 years and a head sentence of 19 years, with the non-parole period being 68.4% of the head sentence. Upon the basis that the total effective term of the Offender’s sentences will be an effective non-parole period of 17 years and an effective head sentence of 23 years, then the non-parole component will be 73.9% of the full term.

151. As the Offender has been convicted of manslaughter by unlawful and dangerous act, a “serious violence offence” for the purpose of s.5A(2A)(b) Crimes (High Risk Offenders) Act 2006, the Court is required by s.25C of that Act to warn him of the existence of the Crimes (High Risk Offenders) Act 2006. I ask that the solicitor for the Offender undertake that task on the Court’s behalf.

152. Will the Offender please stand.

153. Christopher Chandler, for the offence of manslaughter of Tateolena Tauaifaga, and taking into account the offences on the Form 1, I sentence you to imprisonment for 19 years commencing on 12 August 2017 and expiring on 11 August 2036 with a non-parole period of 13 years commencing on 12 August 2017 and expiring on 11 August 2030.

154. The earliest date when the Offender will be eligible for release on parole is 11 August 2030.

155. With respect to the back-up and related offences on the certificate under s.166 Criminal Procedure Act 1986, noting the three matters which have been taken into account on the Form 1, I dismiss the charges contained in Sequences 4, 7 and 8 of H56612505 under s.167 Criminal Procedure Act 1986.

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Decision last updated: 04 July 2018