R v HAY

Case [2021] NSWDC 669


District Court


New South Wales

Medium Neutral Citation: R v HAY [2021] NSWDC 669
Hearing dates: 12 November 2021
Date of orders: 13 December 2021
Decision date: 13 December 2021
Jurisdiction:Criminal
Before: Lerve DCJ
Decision:

Aggregate sentence – see [94] to [99]

Catchwords:

CRIME – manslaughter – damage by fire – deceased dies as a result of fire – Bugmy factors – reduction of moral culpability – assessment of seriousness of manslaughter

Legislation Cited:

Crimes Act, 1900

Crimes (Sentencing Procedure) Act, 1999

Cases Cited:

Betts v R [2015] NSWCCA 39

Brown v R [2014] NSWCCA 214

Bugmy v The Queen [2013] HCA 37

Carr v R [2014] NSWCCA 202

Elyard v R [2006] NSWCCA 43

Greenwood v R [2014] NSWCCA 64

Hampton v R (1998) 44 NSWLR 729

Hili & Jones v The Queen [2010] HCA 45

Magro v R [2020] NSWCCA 25

Makarian v The Queen (2005) 208 CLR 357

Mbele v R [2021] NSWCCA 182

Perrone (1989) 43 A Crim R 366

Porter v The Queen [2008] NSWCCA 145

R v Barnett [2016] NSWDC 302

R v Elzakhem [2008] NSWCCA 31

R v Lee [2019] NSWDC 601

R v Magro [2019] NSWSC 343

R v Mazur (2000) 113 A Crim R 67

R vMD, BM, NA & JT (2005) 156 A Crim R 372; [2005] NSWCCA 342

Tepania v R [2018] NSWCCA 247

Toller v R [2021] NSWCCA 204.

Valentine v R [2020] NSWCCA 116

Category:Sentence
Parties: Regina
Jennifer Louise HAY
Representation:

Counsel:
Mr M Pincot (for the Crown)
Mr E Wilson SC (for the Offender)

Solicitors:
File Number(s): 2020/151472
Publication restriction: No

Judgment

  1. 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.

  1. 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.

  2. 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.

  3. On the issue of the maximum penalty the plurality (Gleeson CJ, Gummow, Hayne & Callinan JJ; McHugh J agreeing with…

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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.

Orders

Orders of the court

Aggregate sentence – see [94] to [99]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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