R v DF - [2022] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation: R v DF [2022] NSWSC 762
Hearing dates: 6 May 2022
Date of orders: 28 June 2022
Decision date: 28 June 2022
Jurisdiction: Common Law - Criminal
Before: Garling J
Decision:
See [66]

Catchwords:
CRIME — manslaughter — sentence after guilty plea — objectively very serious crime — offence committed by mother of deceased — no mitigating circumstances

Legislation Cited:
Crimes (High Risk Offenders) Act 2006
Crimes (Sentencing Procedure) Act 1999 ss 3A, 21A, 30E(3), 44(2)

Cases Cited:
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
R v Isaacs (1997) 41 NSWLR 374
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54

Texts Cited:
Not Applicable

Category: Sentence
Parties: The Crown
DF (Offender)
Representation:
Counsel:
M Kumar (Crown)
I McLachlan (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Aquila Lawyers (Offender)

File Number(s): 2019/57048
Publication restriction: Suppression order made by Hulme J on 9 April 2021. Suppression order made by Garling J on 8 April 2022.

Judgment

On 16 February 2022, DF (“the Offender”) pleaded guilty to the manslaughter of her son AAF (“the Deceased”) who was then aged 2 years and 5 months.
The Offender was arrested on 20 February 2019 and has remained in custody since that time. The trial of the Offender, who was arraigned on a charge of murder, was due to commence before me on 15 February 2022. The Offender had pleaded not guilty to this charge at all times. On 16 February 2022, the Offender pleaded guilty to manslaughter which was accepted by the Crown in full discharge of the indictment.
It is now time for the Offender to be sentenced for her crime. The maximum penalty for the offence of manslaughter is 25 years. No standard non-parole period is applicable. The maximum term of imprisonment is a guidepost which a court must have regard to when imposing a sentence: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27].

The Statutory Regime

The Parliament of NSW has fixed in s 3A of the Crimes (Sentencing Procedure) Act 1999 the purposes for which a court may impose a sentence on an offender. Those purposes are: to ensure adequate punishment of an offender; to prevent crime by deterring others and the offender from committing similar offences; to protect the community from an offender; to promote an offender’s rehabilitation; to make an offender accountable for his or her actions; to recognise the harm done to the victims of the crime and the community; and to denounce publicly the conduct of an offender.
These purposes obviously overlap and are often in tension: Muldrock at [20]. The purposes of ensuring adequate punishment of an offender and promoting an offender’s rehabilitation, for example, are not always compatible. None of the purposes of sentencing can be considered in…

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 DF

Details

AGLC: R v DF [2022] NSWSC 762
Case: [2022] NSWSC 762
Decision Date: 28 June 2022

CaseChat Overview and Summary

The case of R v DF was heard in the Supreme Court of Victoria, where DF was charged with manslaughter. DF, the mother of the deceased, had entered a guilty plea to the charge, leading to a sentencing hearing. The court needed to determine an appropriate sentence, considering the nature of the offence and the circumstances surrounding the crime. The legal issues the court needed to address included the severity of the crime and whether there were any mitigating factors that could influence the sentence.

The court assessed the circumstances of the crime, concluding that it was objectively very serious. The court found that there were no mitigating factors that could lessen the culpability of DF. The court considered the impact of the crime on the deceased's family and the broader community. Given the absence of mitigating circumstances and the gravity of the offence, the court decided that a custodial sentence was necessary. The court ultimately determined that DF should be sentenced to a term of imprisonment, reflecting the seriousness of the crime and the need for deterrence and retribution.

The court ordered that DF be sentenced to a term of imprisonment, with specific details regarding the length of the sentence to be determined by the court. The court also noted that any appeals against the sentence would need to address the objective seriousness of the crime and the lack of mitigating factors. This decision highlights the court's approach to sentencing in cases of manslaughter, particularly where the offender is related to the victim.

Orders