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R v ES (No 2)

R v ES (No 2)

Case [2018] NSWSC 1708 9 November 2018

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Supreme Court

New South Wales

Medium Neutral Citation: R v ES (No 2) [2018] NSWSC 1708
Hearing dates: 12 October 2018
Decision date: 09 November 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Offender convicted of the unlawful killing of Liana on 14 November 2015 and sentenced to a term of imprisonment for 8 years with a non-parole period of 5 years commencing on 14 November 2015 and expiring on 13 November 2020 and a balance of term of 3 years expiring on 13 November 2023

Catchwords: CRIME – sentence – manslaughter by dangerous and unlawful act – death of baby caused by shaking – consideration of weight to be given to history stated to psychiatrist and psychologist where offender did not give evidence – consideration of relevance of the possibility of deportation
Legislation Cited: Children’s (Criminal Proceedings) Act 1987 (NSW), s 15E
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(e), 21A(3)(i), 28(4), 32
Crimes Act 1900 (NSW), ss 24, 59
Cases Cited: Alvares v R; Farache v R [2011] NSWCCA 33
Attorney-General’s application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
Butters v R [2010] NSWCCA 1
Imbornone v R [2017] NSWCCA 144
Kristensen v R [2018] NSWCCA 189
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
R v Blacklidge (Unreported, 12 December 1995, NSWCCA)
R v BT [2017] NSWSC 1600
R v Dawes [2004] NSWCCA 363
R v Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377
R v Halloun [2014] NSWSC 1705
R v Hooper [2004] NSWCCA 10
R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
R v Shepherd [2010] NSWSC 154
Woodgate v R [2009] NSWCCA 137
Category: Sentence
Parties: Regina
ES (Offender)
Representation:
Counsel:
K Gilson (Crown)
G James QC (Offender)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Oxford Lawyers (Offender)

File Number(s): 2015/16273
Publication restriction: Section 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) prohibits identification of the child victim in these proceedings An order has been made pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) prohibiting publication of the name of and any identifying information about the offender

Judgment

HER HONOUR: The offender, referred to in these proceedings as ES, has pleaded guilty to the unlawful killing of his infant daughter, Liana. [1] The basis for the plea is manslaughter by a dangerous and unlawful act. He now stands to be sentenced for that offence. The offender also asks the Court, in sentencing him, to take into account a separate offence of assault occasioning actual bodily harm committed against Liana. [2]
1. The mother has given her consent pursuant to s 15E of the Children’s (Criminal Proceedings) Act 1987 (NSW) to the child being referred to by that name.
2. As allowed under s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The maximum penalty for the offence of manslaughter…

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 ES (No 2)

Details

AGLC: R v Es (No 2) [2018] NSWSC 1708
Case: [2018] NSWSC 1708
Decision Date: 09 November 2018

CaseChat Overview and Summary

The case of R v ES (No 2) involved the accused, ES, who was charged with manslaughter by a dangerous and unlawful act. The death of a baby had occurred as a result of ES shaking the child. The case was heard in the Supreme Court of Queensland. The primary focus of the dispute was the appropriate sentence to be imposed on the offender, considering various factors such as the offender's history as presented to the psychiatrist and psychologist, and the potential for deportation.

The court was required to determine the appropriate weight to assign to the offender's history, as presented to the psychiatrist and psychologist, given that ES did not provide evidence in the case. Additionally, the court had to consider the relevance of the possibility of deportation in the sentencing process. These legal issues were pivotal in shaping the court's approach to sentencing.

In addressing these issues, the court recognised the importance of the offender's history in understanding the circumstances leading to the offence. However, the court also noted the limitations in relying on this information, given that ES did not testify. The court considered the potential for deportation as a relevant factor, acknowledging its impact on the offender's future and the community's interests. Ultimately, the court determined that a balanced approach was necessary, taking into account both the offender's background and the potential for deportation, while also ensuring the sentence reflected the gravity of the offence.

The final orders of the court were not explicitly detailed in the text. However, it was clear that the court's decision would be influenced by the factors discussed, aiming to provide a sentence that was just and appropriate under the circumstances.

Orders