R v Quinlan

[2021] NSWCCA 284

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Quinlin [2021] NSWCCA 284

Hearing dates:

22 September 2021

Date of orders:

22 September 2021

Decision date:

03 December 2021

Before:

Price J at [1];
Hamill J at [123];
Ierace J at [124]

Decision:

Crown appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Manifest inadequacy – manslaughter – Indigenous respondent – whether sentencing judge erred in taking into account bail period as quasi-custody and backdating sentence – whether bail conditions amounted to quasi-custody – consideration of respondent’s background and mental health – whether non-parole period was manifestly inadequate

Legislation Cited:

Bail Act 2013 (NSW), s 20A

Crimes Act 1900 (NSW), s 18(1)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)

Criminal Appeal Act 1912 (NSW), s 5D

Cases Cited:

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45

House v The King (1936) 55 CLR 483; [1936] HCA 45

La v R [2021] NSWCCA 136

Regina v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Regina (Appellant)
Lachlan Quinlin (Respondent)

Representation:

Counsel:
P McGrath SC (Appellant)
T Quilter (Respondent)

Solicitors:
Solicitor for the Office of the Director of Public Prosecutions (Appellant)
Aboriginal Legal Service (Respondent)

File Number(s):

2019/88771

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 June 2021

Before:

Priestley SC DCJ

File Number(s):

2019/88771

Judgment

1. PRICE J: On 22 September 2021, this Court heard a Crown appeal brought by the Director of Public Prosecutions (“the Director”) pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on Lachlan Quinlin (“the respondent”) by Priestley SC DCJ (“the judge”) on 15 June 2021. The Notice of Appeal was filed on 13 July 2021 and was emailed to the Aboriginal Legal Service, the respondent’s solicitors, on the same day. The Notice of Appeal was served personally on the respondent on 20 July 2021.

2. Leave was granted to the Director to rely on an Amended Grounds of Appeal at the commencement of the hearing. The grounds of appeal advanced by the Director were:

1. The sentencing judge erred by taking into account the respondent’s time on bail as quasi-custody when determining the commencement of the sentence.

2. The sentence pronounced is manifestly inadequate.

3. After hearing submissions from the Director and the respondent, this Court dismissed the Director’s appeal with reasons to be provided. Here are my reasons for joining in the judgment to dismiss the appeal.

The sentence proceedings

4. The respondent entered a plea of guilty in the Local Court on 19 August 2020 to a single count of manslaughter by an unlawful and dangerous act contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) which was in the following terms:

“On 20 March 2019, at Nambucca Heads in the State of New South Wales, unlawfully killed Arne Steel.”

5. Following his plea, the respondent was committed for sentence to the District Court at Coffs Harbour but the matter was adjourned a number of times until 15 June 2021 when the respondent was sentenced by the judge.

6. During the proceedings on sentence, a signed statement of agreed facts and the respondent’s criminal and custodial history were tendered by the Director.

7. The respondent’s criminal history disclosed that for offences of resist officer and assault police officer on 12 December 2017 he had been ordered to perform community service, and for an offence of behaving in an offensive manner he had been fined.

8. The written material tendered in the respondent’s case included a psychological report by Ms Vanessa Edwige, a psychiatric report by Dr Richard Furst, a letter of apology from the respondent to the deceased’s family, a letter of support from Mr Bert Gray, an intensive support worker at Ngurrala Aboriginal Corporation, a letter co-signed by three Community Representatives of the Gumbanggirr Nation, two letters from a teacher and Acting Head Teacher at Macksville TAFE, and affidavits of the respondent, Ms Valerie Quinlin (the respondent’s sister) and Mr Gray.

The affidavits

9. In his affidavit, the respondent, who was born on 26 February 1996, detailed his background. He was the youngest of six children. When he was one year old, he was removed from his parents who had been living at Nambucca Heads and was made a ward of the State. He lived with his aunt and uncle in Sydney until he was about six, when he moved with them to live on the mission at Kempsey in his uncle’s sister’s house.

10. The respondent described the house as being very crowded as there were people already living there and seeing people smoke marijuana in the house. He further deposed to people drinking at their house and of witnessing fighting everywhere. He attended school in Kempsey and at Nambucca Heads after his aunt and uncle moved to that town.

11. The respondent’s description of his background included seeing his mother drinking in public and being drunk, his aunt and uncle splitting up when he was about 12 and his attendance at Nambucca Heads High School which he finished but did not get an ATAR. He commenced drinking alcohol when he was 13 and drank more frequently as he got older. He stated that after his mother’s death, which he witnessed when he was 19, he started to drink more often which became routine. He commenced smoking cannabis when he was 14 and tried ice in 2016. He deposed to two admissions to hospital as a consequence of consuming ice.

12. In referring to the offence, the respondent stated that what he did was wrong and he did not realise how serious his actions “would end up being at the time”. He knew that punishment was necessary and he would have to go back to gaol.

13. Since he had been released from custody, the respondent stated he was no longer drinking with his mates. He would keep to himself and go fishing with his brother Martin. He stated that he completed his Certificate II in Construction last year (2020) which took six months at Macksville TAFE and had been practising for his L’s test. His plans for the future included the Road to Homes program courses and his hope was to get a job “after [he] g[o]t out”.

14. The respondent stated he had a curfew of 7:00pm to 7:00am and had been having a quiet time. He had not been hanging around with his old friends and had not been to any licensed premises. He had been working with Mr Gray at Ngurrala since he was released. He completed a behaviour change program last year (2020) for which he travelled to Coffs Harbour a few times. The program was for three full days over three weeks.

15. The respondent stated that he had lived with his sister Valerie until April 2021 when he had moved to Sandy Beach to live with his aunty.

16. In her affidavit, Ms Quinlin deposed that the respondent had lived with her nearly the whole time whilst he was on bail. She stated that he had started taking responsibility in new ways, including organising his own medication.

17. Ms Quinlin described the respondent as being “an easy-going, kind and gentle person” who would help with her children when he could. She stated that he would spend most of his spare time fishing or with Mr Gray from his men’s group. She stated that he was motivated to study and work.

18. Mr Gray stated in his affidavit that he had met with the respondent in his capacity as a support worker at Ngurrala on 4 October 2019 and had been supporting him ever since. He stated that the respondent reached out to him, telling him about his charges and his feelings of isolation because he was not allowed to go into Nambucca Heads “to see or spend time with friends and family”.

19. Mr Gray deposed that he had provided the respondent with individualised support and helped him get into a TAFE course which the respondent completed. Mr Gray described seeing “a lot of positive changes” in the respondent when he moved from individual to group work. It was during 2020 that the respondent began to talk more in the men’s group, completed the 12 week men’s behaviour change program and had reached out to Mental Health support workers and the local Aboriginal Medical Service. Mr Gray noticed “a real shift in [the respondent’s] attitude and outlook”. He stopped his drinking and drug use, realised his mental state was important and had taken responsibility for what had happened. Mr Gray had seen the respondent in person at least once a week, which had not continued after the respondent moved to Sandy Beach. They continued to have phone contact after this time.

The expert reports

20. Ms Edwige described the respondent’s developmental history as showing “a very difficult childhood, adolescence and early adulthood”. [1] Ms Edwige referred to the respondent’s exposure to parental alcohol misuse from a young age, his removal and separation from his biological parents with access only through supervised visitation, witnessing the death of his mother from a heart attack, his Aunty Donna and Uncle Frank’s separation, exposure to community violence and alcohol and drug issues on the mission, and the frequent incarceration of his older brother.

    1. Report, Ms Edwige, 3 October 2020 at p 10.

21. Ms Edwige considered that the respondent had significant unresolved trauma and grief which had impacted on his psychological wellbeing. Ms Edwige opined that the respondent’s complex developmental trauma and grief caused him significant psychological distress and his abuse of substances since the age of 13 was a means to reduce his symptomatology. In Ms Edwige’s opinion, the respondent’s complex developmental trauma was an antecedent for the emergence of his substance misuse and mental health issues.

22. Dr Furst considered that the respondent suffered from schizophrenia at the time of the offence and was at that time not acutely psychotic. The onset of the illness was when he was around 19 to 20 years of age. He had stopped taking his antipsychotic medication, Abilify, 10 months prior to the offence.

23. In Dr Furst’s opinion, the respondent’s propensity towards drug and alcohol abuse was likely due to poor parental role models in his early life and negative community role models in his adolescence. He considered that the respondent’s early history of parental neglect, maltreatment and removal by child protection authorities was also relevant to understanding the respondent’s propensity to drink excessively and his substance use disorder.

24. Dr Furst opined that although the respondent’s offending was not driven by acute delusions or hallucinations, his schizophrenic illness was a relevant factor. Dr Furst reported that the respondent’s capacity for consequential thinking, capacity to exercise sound judgment and his capacity to exercise appropriate social behaviour (such as desisting from fighting) were probably all impaired, at least to some extent, by his schizophrenia, deficits that were likely exaggerated by his intoxication with alcohol at the time. [2]

    2. Report, Dr Furst, 13 April 2021 at p 9.

25. Dr Furst reported that the respondent had accepted responsibility for his actions and presented as remorseful. Dr Furst considered that the respondent “likely falls amongst a group of offenders considered to be at low-moderate risk of re-offending”. [3]

    3. Report, Dr Furst, 13 April 2021 at p 10.

The respondent’s evidence

26. The respondent gave oral evidence before the judge, which included that in the circumstances in which he grew up, his usual reaction to being invited to fight over something was to have a fight or stand your ground.

27. The respondent agreed he had written a letter to the deceased’s family and that if the family were in court that day, he would say he was sorry for what had happened and he would not have gone to the house that night if he had known what was going to happen.

28. The respondent gave evidence that at the time of the offending, he “wasn’t doing much” [4] and was drinking a lot.

    4. Tcpt, 15 June 2021, p 12(1).

29. The respondent said that since his release from custody he had completed a six month TAFE construction course and kept in telephone contact with Mr Gray doing the “men’s program”. [5] He stated that in the year since completing his TAFE course he had been “keeping to [him]self” [6] and that he planned to try to get his licence, do some courses, get work and stay off drugs and alcohol. The respondent also gave evidence that he was getting monthly Abilify injections to treat his mental health issues. [7]

    5. Tcpt, 15 June 2021, p 9(21).

    6. Tcpt, 15 June 2021, p 9(27).

    7. Tcpt, 15 June 2021, p 8(10).

30. During submissions, there was some discussion as to whether the respondent’s bail conditions amounted to quasi-custody. The following exchange took place between the judge and counsel:

“HIS HONOUR: And he was reporting, presumably. How often was he reporting?

OLIVER: No, no reporting.

HIS HONOUR: No reporting condition.

…

PEARSALL: We may have to check that, your Honour, I don’t think that’s correct, with respect.

OLIVER: Reporting – sorry. When was that?

OFFENDER: I was reporting at six months.

…

OFFENDER: Six months after I got out, I reported every day for six months. Then they stopped it.

PEARSALL: I’m instructed he was reporting every day for six months.” [8]

8. Tcpt, 15 June 2021, p 37(10-33).

31. After hearing oral argument, the judge delivered his remarks on sentence ex tempore.

32. The respondent was sentenced to 27 months’ imprisonment with a non-parole period of 12 months after a discount of 25% for the respondent’s guilty plea. The sentence was backdated to commence on 16 June 2020. The non-parole period expired on 15 June 2021 (the same day the sentence was imposed) and the head sentence expires on 15 September 2022.

33. The backdating of the sentence by 12 months was calculated to take into account a period of 6 months in custody when the respondent had been bail refused, as well as a credit towards 6 months in custody for a period of 21 months when the respondent had been on conditional bail, which the judge took into account as “quasi-custody”.

34. The maximum penalty for an offence contrary to s 18(1)(b) of the Crimes Act is 25 years’ imprisonment.

Details of the offence

35. On 18 March 2019, the deceased, aged 36, was living with his partner Ms Frogley in Nambucca Heads. At about 7:00pm that evening, the deceased and Ms Frogley walked together into the Nambucca Heads township and purchased cigarettes and alcohol. Whilst in town, they met up with Ms Douglas and four men including Mr Wilson and the respondent. The group spent some time drinking alcohol in the main street.

36. At about 9:30pm, the deceased, Ms Frogley, Ms Douglas, Mr Wilson and the respondent went to the deceased’s home. The members of the group, except for Ms Douglas, continued to drink for several hours and were significantly affected.

37. An argument broke out between the deceased, the respondent and Ms Frogley after the respondent touched Ms Frogley in an inappropriate way, at which the deceased became upset and Ms Frogley told the respondent to leave her alone. Ms Douglas warned the respondent to “stop being so touchy” and told him to leave as the deceased was becoming upset.

38. The deceased offered to fight the respondent outside and the two men exited the residence and went to a grassed area near the road. The two men “shaped up to each other” and began throwing punches. The men moved onto the road and down in front of the driveway of a neighbour’s property as the fight progressed.

39. At one point, the respondent swung a punch at the deceased which missed, causing the respondent to stumble to the ground, scraping the knuckles of his left hand and his left knee on the road.

40. The deceased waited nearby while the respondent got to his feet. The deceased then threw a punch at the respondent which the respondent was able to duck and avoid. By this time, the two men were standing on the downward sloping concrete driveway of the neighbour’s premises.

41. The respondent then tackled the deceased front-on around the waist. This caused the deceased to fall backwards and downwards, striking the back of his head heavily on the driveway. The deceased remained motionless on the ground. The respondent, who had remained upright, walked home.

42. Shortly before the fight on the street commenced, Ms Douglas and Mr Wilson had left the residence, followed by Ms Frogley. Ms Frogley saw some of the fight, including that the deceased was on the ground, however she did not investigate further and did not return to the area until the next morning.

43. At about 7:00am the following morning, neighbours of the deceased and Ms Frogley found the deceased lying unconscious and face-up on the driveway and called an ambulance. Paramedics arrived soon after.

44. The deceased was taken to Coffs Harbour Base Hospital and then to John Hunter Hospital in Newcastle at 11:00pm that evening. At about 3:00pm the following day, 20 March 2019, the deceased was declared brain dead.

45. On 25 March 2019, an autopsy was conducted by Dr Du Toit-Prinsloo and the cause of death was determined to be sequelae of blunt force head injury. A large area of sub-scalp haemorrhage was found as well as numerous linear fractures in the right parietal and right side of the occipital bone. The post mortem summary also described injuries “indicative of interpersonal violence”, which the judge took to mean injuries resulting from the fight between the deceased and the respondent, as follows: bruising to the neck, arms and right lower leg, superficial abrasions to the right side of the back and haemorrhage in the right hand, right forearm, left forearm, right lower leg, right foot and neck area. The toxicology results showed the presence of midazolam, morphine, paracetamol, alcohol and delta-9-THC acid (the last of which the judge took to indicate cannabis).

46. On 20 March 2019, prior to the deceased being declared brain dead, the respondent was arrested and taken to Macksville Police Station, where he participated in an ERISP. The statement of agreed facts tendered in the sentencing proceedings stated that the version of events given by the respondent during that interview “essentially forms the basis of these “Agreed Facts.””

47. During the interview, the respondent stated that he had agreed to fight the deceased and had “[t]ackled him like a footy tackle”. He also stated that after the tackle, he thought the deceased was unconscious and he was scared as he did not know whether the deceased was going to get up or not. He told police he left without telling anyone at the house because he “didn’t want nothing to do with it really”. The respondent emphasised numerous times throughout the interview that he had been “pretty intoxicated” and further expressed that he “felt bad for the bloke” and “just didn’t think it would be as serious as it is”.

The remarks on sentence

48. The judge identified the dangerous act of the respondent, the football-style tackle on a downward sloping concrete path, as unlawful as it was not consented to. [9]

    9. ROS Tcpt, 15 June 2021, p 6.

49. The judge observed that the unlawful and dangerous act occurred “in the course of a fight to which both parties consented”. [10] The deceased was approached front on and there was “nothing underhanded in the nature of being struck from behind”. [11] It was noted the offence occurred immediately after the respondent had been on the ground and the deceased had been waiting for him to get up to continue the fight.

    10. ROS Tcpt, 15 June 2021, p 6.

    11. ROS Tcpt, 15 June 2021, p 6.

50. The judge observed no weapon was involved. His Honour found it was not a matter of calm deliberation and the offending act could not be described as “unilateral”.

51. His Honour found there was no “sinister purpose”, noting the respondent’s submissions that there was no pre-existing or ongoing animosity other than the challenge to a fight.

48. The judge said no blow was struck, but observed that the “unavoidable consequence of a tackle has the same effect”. His Honour found that a rugby tackle was within the style of conduct that might be expected when two people agree to go outside to fight and that it was “not unrealistic to describe what has occurred as tantamount to, without actually being, an accident, albeit a tragic one arising from the dangerous act”. [12]

    12. ROS Tcpt, 15 June 2021, p 7.

49. The judge noted that both parties were affected by drugs and/or alcohol, which whilst not a mitigating factor, suggested less if any organisation or planning involved in the offending.

50. The judge found what counted against the respondent was that the conduct fell within the category of “alcohol-fuelled” violence which had led to the death of another person. [13]

    13. ROS Tcpt, 15 June 2021, p 7.

51. The judge assessed the objective seriousness of the offence to be “towards, if not actually in, the lowest range”. [14]

    14. ROS Tcpt, 15 June 2021, p 7.

52. The judge considered that the aggravating factors in s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) did not apply, as whilst violence was involved and there was “arguably some connection to the home of the deceased”, his Honour did not place weight on these aspects due to the consensual nature of what occurred leading up to the unlawful and dangerous act and that some form of violence was integral to the commission of the offence.

53. The judge noted the respondent was entitled to the 25% discount for his guilty plea. His Honour said the respondent had entered his plea at the earliest possible stage and fully cooperated with police from the day of his arrest.

54. The respondent’s criminal record did not deny him leniency. [15] The judge took into account as good character the respondent’s lack of criminal history beyond three offences committed in 2017 which the judge described as “minor…summary or street-style” offending. [16]

    15. ROS Tcpt, 15 June 2021, p 9.

    16. ROS Tcpt, 15 June 2021, p 25.

55. The judge recognised the respondent’s diagnosis of schizophrenia but was not satisfied it had a causal link to the offending.

56. The judge considered that the respondent was not an appropriate vehicle for specific or general deterrence in the same way he would have been had he not suffered from his mental health issues nor had his socially disadvantaged background. Any sentence would reflect an element of general and specific deterrence, the judge said, but it would be ameliorated by the respondent’s state of mental health. The judge found the respondent’s social disadvantage and mental health lessened his moral culpability and lessened, without extinguishing, his suitability for general and specific deterrence. [17] The judge said deterrence would be “the most significant aspect of the sentencing”. [18]

    17. ROS Tcpt, 15 June 2021, p 38.

    18. ROS Tcpt, 15 June 2021, p 27.

57. The judge found the respondent suffered social disadvantage throughout his upbringing which meant he lacked any real skills to deal with “adult issues”. His Honour observed “in the circumstances in which he was brought up, alcohol and violence seems to be the answer to everything”. [19] The judge considered that the respondent’s excessive alcohol consumption was rooted in his disadvantaged upbringing and in some way connected to his mental health condition. [20] His Honour found that the offending stemmed from poor decision-making due to intoxication, which could indirectly be attributed to his background and mental health, though his Honour did not find these factors were causative at the time of offending. [21] The respondent’s intoxication was not a mitigating factor. [22]

    19. ROS Tcpt, 15 June 2021, p 14.

    20. ROS Tcpt, 15 June 2021, p 19.

    21. ROS Tcpt, 15 June 2021, p 38.

    22. ROS Tcpt, 15 June 2021, p 38.

58. His Honour rejected the Director’s submission that the respondent’s level of social disadvantage “could not be too bad because he has not offended”. The judge referred to Bugmy v The Queen (“Bugmy”)[23] and stated an offender’s ability to be pro-social and not offend “does not disentitle them to the considerations that an established case of social disadvantage otherwise entitles them to”. [24]

    23. (2013) 249 CLR 571; [2013] HCA 37.

    24. ROS Tcpt, 15 June 2021, p 16.

59. The judge found a custodial sentence would weigh more heavily on the respondent. [25]

    25. ROS Tcpt, 15 June 2021, p 14.

60. The judge found the risk posed by the respondent to the community to be “fairly low” and the risk of reoffending to be “low”. [26] His Honour said that a “significant amount” of counselling and support would be necessary to address his history. [27]

    26. ROS Tcpt, 15 June 2021, p 15.

    27. ROS Tcpt, 15 June 2021, pp 15-16.

61. The judge found that whilst there was no evidence before the Court as to why the matter took so long to come to sentence, the respondent had had a period of two years and three months in which to worry about what sentence might be imposed. [28]

    28. ROS Tcpt, 15 June 2021, p 22.

62. In these circumstances, the judge observed the respondent had “taken positive steps towards rehabilitation and treatment for his mental health and substance abuse”. [29] The judge found the respondent had shown insight and real progress towards his rehabilitation over the previous two years and his prospects for rehabilitation were “good”. [30]

    29. ROS Tcpt, 15 June 2021, p 40.

    30. ROS Tcpt, 15 June 2021, p 34.

63. The judge found there was a “great need to promote rehabilitation” though the behaviour needed to be denounced. [31]

    31. ROS Tcpt, 15 June 2021, p 27.

64. The judge observed the respondent’s expressions of remorse were “plentiful”. [32]

    32. ROS Tcpt, 15 June 2021, p 25.

65. The judge made a finding of special circumstances based on the respondent’s relative youth and immaturity (he was 23 years old at the time of offending and 25 at the time of sentence), his need for appropriate supervision and treatment for his mental health and drug abuse history, the fact it would be his first time in custody and because custody would be more onerous for him. [33]

    33. ROS Tcpt, 15 June 2021, pp 26-27.

66. The judge observed the respondent had spent six months in custody followed by 21 months on conditional bail. His Honour found the 21-month period spent on bail constituted quasi-custody, stating the bail conditions established in the course of submissions to be:

1. A curfew from 7:00pm to 7:00am unless he was in the presence of his sister, Ms Quinlin;

2. A prohibition on going to licensed premises; and

3. A prohibition on drinking. [34]

   34. ROS Tcpt, 15 June 2021, p 33.

71. The judge considered these three matters to be impingements upon the liberty of the individual that the respondent would not otherwise be subject to, amounting over a 21-month period to a form of punishment which should be taken into account. His Honour said:

“I am going to allow a period of 6 months for the 21 months as what can be called quasi-custody, so that the total amount of time in custody will be as to date, considered to be 12 months.” [35]

35. ROS Tcpt, 15 June 2021, p 33.

72. His Honour later on in his sentencing remarks, said:

“The [respondent] was released from custody, having spent six months on remand, in September 2019. In the one year and nine months that has passed since then, he has kept to himself, adhered to bail conditions, which include not leaving his home for 12 hours of each day between 7pm and 7am without his sister Valerie, prohibits him from drinking alcohol or attending licensed premises or entering the area of Nambucca Heads. As already noted, I have found that constitutes quasi-custody, which can be reflected in attributing it as a six-month period of imprisonment.” [36]

36. ROS Tcpt, 15 June 2021, p 39.

73. The judge said that the respondent whilst on bail had undertaken steps towards rehabilitation and found that the respondent’s rehabilitation was occurring, “a view strengthened by his compliance with the above bail conditions”. [37] The judge said: “It also strengthens my view that the prospects of reoffending are low.” [38]

    37. ROS Tcpt, 15 June 2021, p 39.

    38. ROS Tcpt, 15 June 2021, p 39.

74. His Honour questioned the need for any further period of custody; however remarked “that legislation excludes an intensive correction order result in this case”. [39] His Honour said that did not “dispel or extinguish the concern of some further period in custody, in fact, being counterproductive. Even more so, where the [respondent] is being sentenced for events now 2 years and 3 months ago, when he gave the version of events on which the [Director] rely on the day he was arrested on the day of offending. In that time, his future has been uncertain, yet he has taken positive steps towards rehabilitation and treatment for his mental health and substance abuse.” [40]

    39. ROS Tcpt, 15 June 2021, p 40.

    40. ROS Tcpt, 15 June 2021, p 40.

75. The judge ultimately concluded that “this case represents an occasion where a case low in objective seriousness and strong subjectively results in a modest term of imprisonment”. [41] His Honour arrived at an undiscounted starting point of a 3 year term of imprisonment which amounted to 27 months after the 25% discount was applied.

    41. ROS Tcpt, 15 June 2021, p 41.

76. His Honour considered the minimum term the respondent should spend in custody was 12 months. Given the length of time spent on bail had been found to equate to six months in custody, the judge found that the non-parole period in effect expired on the date of sentence and the respondent was eligible for release on that day.

Ground 1: The sentencing judge erred by taking into account the respondent’s time on bail as quasi-custody when determining the commencement of the sentence

The Director’s submissions

77. The Director submitted it was not open to the judge to find that the respondent’s bail conditions amounted to quasi-custody, nor was it open upon that finding to backdate the commencement date of the sentence by a further six months (in addition to six months previously served in custody).

78. The Director submitted there was insufficient evidence to establish, on the balance of probabilities, that the respondent’s liberty was “so curtailed that he should receive credit in respect of the commencement date of his sentence”.

79. The Director submitted the evidence, disregarding oral submissions, was limited to the fact that the respondent had a curfew from 7:00pm to 7:00am and was not allowed to go into Nambucca Heads, and the respondent had stated in his affidavit that he had not been to any licensed premises but did not refer to this as being a bail condition.

80. The Director submitted the other conditions of bail were the subject of oral submissions by the parties and consisted of: an exception to the curfew allowing the respondent to leave home at night if accompanied by his sister, daily reporting for six months, not being allowed to contact prosecution witnesses, not to drink alcohol or take drugs unless prescribed and not to enter licensed premises.

81. The Director pointed out that whilst on bail for 21 months, the respondent had completed a six month TAFE course at Macksville, was practising for the L’s test on his phone, had been attending a men’s group and receiving one-on-one support from Mr Gray, participated in a behaviour change program requiring him to go to Coffs Harbour a few times, spent time with his sister’s children and went fishing with his brother in his spare time. The Director argued these features of the evidence suggested the respondent had enjoyed a degree of liberty whilst on bail and was able to engage in rehabilitation.

The respondent’s submissions

82. The respondent submitted there was evidence that the respondent’s liberty was restricted for 21 months awaiting sentence. This included: a curfew from 7:00pm to 7:00am with an exception allowing him to leave home at night if accompanied by his sister, not allowed to go into Nambucca Heads, daily reporting for six months, not to contact prosecution witnesses, not to drink alcohol or take drugs unless prescribed, and not to enter licensed premises.

83. The respondent highlighted the respondent’s age of 23 to 25 years during this time.

84. The respondent submitted this Court should not approach this ground as if there is a pre-requisite for an offender being sentenced to articulate all the ways in which an interference with their liberty has affected them.

85. It was submitted there was evidence, in the report of Ms Edwige and from Mr Gray, that the respondent was socially isolated from family and friends, the significance of which “should not be discounted”.

86. The respondent submitted the judge’s approach to quasi-custody was “generous but not erroneous”.

Consideration

87. Section 20A of the Bail Act 2013 (NSW) provides the general rules for the imposition of bail conditions to address identified bail concerns. Bail conditions imposed in accordance with s 20A will not ordinarily be considered to be “quasi-custody” so as to justify a lesser sentence or the backdating of a sentence as the condition(s) imposed will ordinarily be reasonably necessary to address a bail concern (s 20A(2)(a)), and reasonable and proportionate to the offence (s 20A(2)(b)), and appropriate to the bail concern identified (s 20A(2)(c)), and no more onerous than necessary to address the bail concern identified (s 20A(2)(d)), and reasonably practicable for the accused person to comply with the condition (s 20A(2)(e)). Most bail conditions restrict a person’s liberty in some way.

88. Nevertheless, there will be occasions when bail conditions are so harsh or restrictive that they may require a conclusion that at least some part of the period on bail should be treated as the notional equivalent of custody, conveniently referred to as “quasi-custody”. The onus of establishing whether an offender’s bail conditions amount to quasi-custody falls on the offender on the balance of probabilities. As Garling J explained (with the concurrence of Basten JA and myself) in La v R:[42]

“[43] A sentencing court is entitled to take into account any conditions of bail granted to an offender awaiting sentence where those conditions may be particularly harsh or restrictive. Such terms are often referred to as “quasi-custody”. Prior to a court taking into account conditions of quasi-custody as a basis for reducing a sentence, or commencing a sentence from an earlier date than it otherwise would have, there has to be an evidentiary foundation to establish the nature, kind and effect of any restrictions: see Bonett v R [2013] NSWCCA 234 at [50] where Adamson J said:

“Whether restrictions outside of gaol amount to quasi-custody is a question of fact: see for example R v Cartwright (1989) 17 NSWLR 243 at 258 per Hunt and Badgery-Parker JJ and R v Serratore [2000] NSWSC 696 per Kirby J at [31]-[35]. The weight to be given to any such quasi-custody in reducing the sentence imposed is a matter for the discretion of the sentencing Judge. Although quasi-custody may be a relevant consideration it is not a mandatory relevant consideration. However, in circumstances where there is an evidentiary foundation for its being taken into account, the sentencing Judge may be obliged, in some circumstances, to have regard to it even when not specifically asked to.”” (emphasis in original)

42. [2021] NSWCCA 136.

89. An assessment of whether a person’s bail conditions amount to quasi-custody and whether and to what extent an allowance is made by backdating the sentence is a discretionary decision to be made by the sentencing judge in light of the particular facts and circumstances of the case. Such a decision is only reviewable by this Court in accordance with the principles of House v The King. [43]

    43. (1936) 55 CLR 483; [1936] HCA 45.

90. The judge found the 21-month period the respondent spent on conditional bail constituted quasi-custody. His Honour specifically referred to the prohibition on drinking and going to licensed premises and a curfew from 7:00pm to 7:00am unless in the company of his sister, Ms Quinlin. In the passage quoted at [72] above, his Honour further referred to the prohibition from entering Nambucca Heads. Surprisingly, no mention was made of the respondent’s daily reporting for six months after his release from custody.

91. The evidence before the judge as to the impact of the bail conditions on the respondent’s liberty disclosed that he no longer went drinking with his friends and spent most of his time alone. He had experienced feelings of isolation as he was not allowed to go into Nambucca Heads to see or spend time with friends and family. He had found the time waiting to be sentenced to be difficult. He had been living with his sister who did not really want him there but as he had no choice, he had stayed.

92. When discussing the respondent’s psychiatric history, Ms Edwige referred to his need to talk to someone “as he feels lonely and isolated”. [44] She reported that the respondent had been suicidal and had thoughts of killing himself.

    44. Report, Ms Edwige, 3 October 2020 at p 6.

93. Mr Gray deposed to the respondent’s feelings of isolation as he was not allowed to go into Nambucca Heads to see or spend time with friends and family.

94. On the other hand, there was evidence that the respondent whilst on bail had completed a six month TAFE construction course, had worked with Mr Gray at Ngurrala since his release and had completed a behaviour change program for which he travelled to Coffs Harbour a few times. He would also go fishing with his brother, lived with his sister Valerie and his curfew conditions did not prevent him from leaving the home at night with her.

95. In assessing whether the bail conditions operated in such a way as to amount to quasi-custody, it should not be overlooked that the respondent was a relatively young man between the age of 23 and 25 with a history of schizophrenia and significant trauma, loss and grief. He had a strong connection to his Aboriginal culture and identity and members of his family and friends lived at Nambucca Heads.

96. Another matter is the length of time he was on conditional bail. Although the delay between his arrest, the plea of guilty in the Local Court and sentence in the District Court is unexplained, it appears that the judge accepted that the delay was not the fault of the respondent.

97. As a matter of common sense, mental health issues in combination with a lengthy period of time that an offender is on conditional bail may increase the burden of restrictive bail conditions.

98. The bail conditions that were imposed would normally not have justified the judge’s finding of quasi-custody. However, in the circumstances of this case, when regard is paid to the respondent’s mental health issues and the 21-month period he was subject to conditional bail, I am not persuaded that the judge erred.

99. It was open to his Honour to make the findings that he did. Although the backdating of the sentence by six months might be regarded as generous, it fell within his Honour’s discretionary judgment. As in many aspects of the difficult task faced by sentencing judges, reasonable minds might otherwise differ.

100. Accordingly, I would dismiss Ground 1 of the appeal.

Ground 2: The sentence pronounced was manifestly inadequate

The Director’s submissions

101. The Director noted the judge’s findings that the objective seriousness of the offence was towards, if not actually in, the lowest range, what occurred was alcohol fuelled violence, and the deceased’s death occurred during a fight which was consensual.

102. The Director pointed to the judge’s finding that deterrence would be the most significant aspect of the sentencing and submitted the ultimate sentence failed to give effect to this purpose.

103. The Director contended that the non-parole period of 12 months was manifestly inadequate, noting that it amounted to 44% of the head sentence of 27 months. By way of comparison, the Director indicated that the statutory ratio of 75% would have resulted in a non-parole period of 20 months and a notional ratio of 60% in 16 and a half months.

101. This was compounded, the Director submitted, by the erroneous finding in relation to quasi-custody, which meant the respondent had spent only six months in custody (reflecting 22% of the head sentence). The Director contended that there were no extraordinary circumstances or exceptional features of this case justifying the extent to which the statutory ratio was departed from, particularly in light of the erroneous finding in relation to quasi-custody.

102. The Director did not submit that the undiscounted starting point of the head sentence of three years was manifestly inadequate but argued that the non-parole period of 12 months was.

The respondent’s submissions

106. The respondent submitted the judge’s favourable objective and subjective findings, which the Director did not challenge, required a lenient sentence.

107. The respondent submitted any argument the sentence failed to satisfy the requirements of specific deterrence should be rejected as the respondent had a minor criminal record, showed remorse, was found to have good rehabilitation prospects and was considered unlikely to reoffend.

108. Whilst acknowledging the judge had described deterrence as the “most significant aspect of sentencing”, the respondent submitted the sentence did not fail to satisfy the requirements of general deterrence as:

1. The judge made clear his Honour did not intend to give “full weight” to general deterrence as the respondent’s upbringing and mental health meant he was “not the most appropriate vehicle to convey” a message of deterrence.

2. The weight given to general deterrence had to be balanced against what the judge found to be a “great need” to promote rehabilitation.

3. The deterrent value of imposing a custodial sentence should not be understated.

109. The respondent accepted that the length of the non-parole period is the minimum period of imprisonment that justice requires to be served. The respondent contended that justice, in this context, should be taken to mean having regard to all relevant factors that inform the sentencing exercise. A non-parole period of 12 months, it was submitted, satisfied those requirements considering the judge’s unchallenged assessment of the seriousness of the offence and favourable subjective findings.

110. In oral submissions, Mr Quilter, the respondent’s counsel, argued that if, as he understood the Director to concede, a non-parole period of 60%, or 16 months, was not inadequate, it was not much of a stretch to speak of 12 months as not being inadequate. [45]

     45. Tcpt, 22 September 2021, p 5(12-18).

Consideration

111. In order to succeed on this ground, the Director must establish that the judge imposed a sentence that was well below the range of sentences that could be justly imposed for the offence, consistent with sentencing standards. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence: Bugmy at [24].

112. Neither party placed reliance on either comparative sentencing decisions or Judicial Commission sentencing statistics. This is hardly surprising given the protean character of the crime of manslaughter. However, manifest inadequacy may be shown by consideration of all of the matters that are relevant to fixing the sentence: Hili v The Queen; Jones v The Queen. [46] The maximum penalty for manslaughter is 25 years’ imprisonment.

     46. (2010) 242 CLR 520; [2010] HCA 45 at [60].

113. The focus of the Director’s complaint was not on the head sentence but the non-parole period. It is well established that the non-parole period is the minimum period of actual incarceration that an offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the offence and the offender’s subjective case. As Spigelman CJ observed in Regina v Simpson [47] at [63]:

“More significantly, there is the ultimate constraint that the non-parole period must itself appropriately reflect the criminality involved in the offence.”

47. (2001) 53 NSWLR 704; [2001] NSWCCA 534.

114. Other than the finding of quasi-custody, the Director did not challenge the judge’s characterisation of the facts, the assessment of the objective gravity of the offence and the findings on the respondent’s subjective case.

115. His Honour’s characterisation of the facts included:

1. What occurred leading up to the tackle was consensual.

2. The deceased, in going outside, expected a fight and that a rugby style tackle was within the scope of what the deceased expected.

3. The tackle was unlawful as it was not consented to.

4. There was no pre-existing or ongoing animosity, other than the challenge that preceded the fight.

5. The offence might be described as an accident, albeit a tragic one, arising from the dangerous act.

6. The conduct was an example of ‘alcohol-fuelled violence’ which counted against the respondent.

7. There were no aggravating factors.

116. His Honour assessed the objective gravity of the offence as falling “towards, if not, actually in, the lowest range.”

117. His Honour’s findings on the respondent’s subjective case included:

1. On the day of his arrest, the respondent told the police a version of events completely inculpatory of him, to the extent that the agreed facts were based on what the police were told by the respondent. This was an indicator of the respondent’s cooperation and remorse.

2. The respondent suffers from schizophrenia. However, his schizophrenia did not contribute to the actual offending.

3. The key sentencing principle was deterrence. The respondent’s social disadvantage and mental health issues lessened his moral culpability and lessened, without extinguishing, his suitability for general and specific deterrence.

4. The respondent suffered social disadvantage throughout his upbringing which meant he lacked any real skills to deal with “adult issues”. The respondent’s excessive alcohol consumption was rooted in his disadvantaged upbringing and was in some way connected to his mental health condition. The respondent’s intoxication was not a mitigating factor.

5. The respondent’s minor criminal history did not deny him leniency.

6. The respondent’s relative youth was a matter in his favour.

7. A custodial sentence would weigh more heavily on the respondent.

8. The risk posed by the respondent to the community was “fairly low” and the risk of reoffending was low.

9. He had good prospects of rehabilitation.

10. The respondent’s expressions of remorse were plentiful.

11. Special circumstances were found being his relative youth and immaturity, his need for appropriate supervision and treatment for his mental health and drug abuse history, his first time in custody and custody being more onerous for him.

118. The Director did not complain about the finding of special circumstances.

119. In his ex tempore sentencing remarks (which extended to 42 pages of transcript), the judge gave careful consideration to the objective gravity of the offence and the respondent’s subjective case. His Honour did not merely pay lip service to the need for deterrence but decided that the respondent’s social disadvantage and mental health issues lessened his moral culpability and lessened the weight to be given to general and specific deterrence.

120. His Honour was well aware that the non-parole period must reflect the criminality of the offence when he stated that he considered “the minimum term be spent in custody to be 12 months”. [48]

     48. ROS Tcpt, 15 June 2021, p 41.

121. Whilst I am of the opinion that the non-parole period of 12 months might be regarded as lenient, I am not persuaded that the sentence fell outside the range of sentences which could properly have been imposed by the judge. In my view, the sentence was not manifestly inadequate.

122. Accordingly, I would dismiss Ground 2 of the appeal.

123. HAMILL J: The judgment of the Presiding Judge encapsulates with complete clarity the reasons I joined in the order dismissing the Director’s appeal against the purported inadequacy of the sentence imposed on this young and contrite respondent. I can add nothing to his Honour’s comprehensive reasons.

124. IERACE J: I also agree with Price J.

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Endnotes

Decision last updated: 03 December 2021