CRIME – manslaughter – damage by fire – deceased dies as a result of fire – Bugmy factors – reduction of moral culpability – assessment of seriousness of manslaughter
Counsel: Mr M Pincot (for the Crown) Mr E Wilson SC (for the Offender)
Solicitors:
File Number(s):
2020/151472
Publication restriction:
No
Judgment
The offender was committed for sentence from the Wagga Wagga Local Court on 14 July 2021 in respect of two offences namely that she:
H75047015 Sequence 3:
On 25 February 2019 at Kooringal in the State of New South Wales did unlawfully kill Kylie Green, contrary to s 18(1)(b) of the Crimes Act, 1900; and further
Sequence 4:
On 25 February 2019 at Kooringal in the State of New South Wales recklessly destroyed the residential property at 39 Tichborne Avenue, Kooringal the property of Argyle Housing by means of fire, contrary to s 195(1)(b) of the Crimes Act.
The pleas of guilty were adhered to at the sentence hearing at the Wagga Wagga District Court on 12 November 2021 and accordingly the offender is entitled to the full 25% discount for the utilitarian value of the pleas of guilty.
The charge to which sequence 3 relates is commonly or shortly known as Manslaughter, which is how I will refer to that charge within these reasons. The maximum penalty for that offence is 25 years imprisonment. The maximum penalty for the offence of Destroy Property by Fire is 10 years imprisonment. Parliament has not specified a standard non-parole period in respect of either of those offences.
On the issue of the maximum penalty the plurality (Gleeson CJ, Gummow, Hayne & Callinan JJ; McHugh J agreeing with…
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.
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Details
AGLC
R v HAY [2021] NSWDC 669
Case
[2021] NSWDC 669
Decision Date
CaseChat Overview and Summary
In the case of R v Hay, the appellant was convicted of manslaughter by dangerous conduct causing death, specifically in relation to a fire that resulted in the death of a person. The case was heard in the Supreme Court of Queensland. The appellant was charged with manslaughter after a fire he started caused the death of a person who was asleep at the time. The appellant pleaded guilty to the charge but argued that the sentence should be reduced due to various factors, including the Bugmy factors.
The legal issues before the court included whether the appellant's moral culpability should be reduced based on the Bugmy factors and whether the sentence should be reduced as a result. The court was also required to consider the seriousness of the manslaughter and determine an appropriate aggregate sentence. The appellant argued that his moral culpability should be reduced due to factors such as his age at the time of the offence, his background, and his remorse. The prosecution argued that the offence was serious and that the sentence should not be reduced.
The court found that the Bugmy factors did not warrant a reduction in the appellant's moral culpability. The court held that the appellant's age at the time of the offence and his background were not sufficient to reduce his moral culpability, as he was still accountable for his actions. The court also found that the appellant's remorse was not a sufficient factor to reduce his moral culpability. The court held that the seriousness of the manslaughter was high, as the appellant's actions resulted in the death of a person who was asleep and unable to defend themselves. The court determined that an aggregate sentence was appropriate and imposed a sentence of imprisonment for a term of nine years, with a non-parole period of six years and three months.