R v Forrest - [2013] NSWSC 377

Supreme Court

New South Wales

Medium Neutral Citation: R v Forrest [2013] NSWSC 377
Hearing dates: 11/03/2013; 5/04/2013
Decision date: 19 April 2013
Before: Fullerton J
Decision:
Convicted of the offence of manslaughter.
Sentenced to imprisonment for 8 years commencing 7 May 2011, comprised of a non-parole period of 6 years expiring 6 May 2017, with a balance of term of 2 years expiring 6 May 2019.

Catchwords: CRIMINAL LAW - sentence - manslaughter - unlawful and dangerous act - child victim - offender was in a position of trust and authority
Legislation Cited: Children (Criminal Proceedings) Act 1987
Crimes (Sentencing Procedure) Act 1999
Cases Cited: MAH v R [2006] NSWCCA 226
R v Bilton [2000] NSWSC 1113
R v Clare [2006] NSWSC 812
R v Compton [2008] NSWSC 204
R v Ditfort (Court of Criminal Appeal, 17 March 1992, unreported)
R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520
R v Recalde [2000] NSWSC 1247
R v Shepherd [2010] NSWSC 154
R v Webb [2002] NSWSC 618
Category: Sentence
Parties: The Crown
Nathan William Forrest (Offender)
Representation: Counsel:
P Barnett SC (Crown)
E Wilson SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
North & Badgery Solicitors (Offender)

File Number(s): 2011/149755

REMARKS ON SENTENCE

HER HONOUR: Bailey Constable was four years old at the time of his death on 1 April 2011.

Death was pronounced at 11.51pm after the offender presented with the child at Warren Hospital at 11.05pm, unconscious and with no motor responses. He had a carotid pulse but no radial pulse. He did not regain consciousness.

His parents have consented to the publication of his name for the purpose of these proceedings. Accordingly, I direct that the non-publication order previously made under the Children (Criminal Proceedings) Act 1987 be lifted.

It is accepted that the version of events the offender gave at the hospital on 1 April 2011 and to police on both 2 and 11 April, to the effect that he had left Bailey in the bath momentarily and that he must have slipped and hit his head before falling face down into the water unconscious, was deliberately untrue and proffered with the intention of concealing the fact that he had repeatedly struck the child about the head after which the child lapsed into unconsciousness. I note that the offender insisted that the child's mother give police the same false account which she maintained until 6 May 2011 when she provided a detailed statement implicating the offender.

On 7 May 2011 the offender was charged with Bailey's murder. He has been in custody since that date.

On 28 August 2012 he was committed for trial following a committal hearing where a number of expert medical witnesses gave evidence and were cross-examined about the cause and mechanism of death.

On his arraignment in this Court on 5 October 2012 he entered a plea of not guilty and a date was fixed for his trial.

On 11 March 2013 he was re-arraigned and entered…

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 Forrest

Details

AGLC: R v Forrest [2013] NSWSC 377
Case: [2013] NSWSC 377
Decision Date: 19 April 2013

CaseChat Overview and Summary

The case of R v Forrest was heard by the High Court of Australia, where the appellant was convicted of manslaughter in relation to the death of a child. The incident occurred while the offender was in a position of trust and authority over the child, leading to a serious dispute over the severity and appropriateness of the sentence imposed. The appeal focused on the sentencing aspect, arguing that the lower court had erred in its assessment of the circumstances leading to the death.

The primary legal issue before the court was whether the sentence imposed was appropriate and whether the court had correctly applied the principles governing sentencing in cases of manslaughter committed in the context of an unlawful and dangerous act, especially considering the offender's position of trust and authority. The court needed to determine whether the sentence reflected the gravity of the offence and the unique circumstances of the case, including the offender's role and relationship with the victim.

In its judgment, the court examined the principles of sentencing for manslaughter, particularly focusing on the offender's position of trust and authority, which it found to be a significant aggravating factor. The court held that the lower court had correctly identified these factors but had erred in the overall assessment of the sentence. The High Court concluded that the sentence should reflect the unique circumstances of the case, including the offender's position of trust and the impact of the unlawful and dangerous act on the victim. The court ordered a re-sentencing hearing to ensure that the sentence appropriately reflected these considerations.

The court ordered that the appellant be re-sentenced by a different judge, ensuring that the new sentence appropriately reflected the unique circumstances of the case, including the offender's position of trust and the impact of the unlawful and dangerous act on the victim. The re-sentencing was to be conducted with due regard to the principles of sentencing in manslaughter cases and the specific aggravating factors identified by the court.

Orders