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R v Rae (No 2)

R v Rae (No 2)

Case [2024] NSWSC 713 13 June 2024

Criminal Liability

Sentencing

Mens Rea & Intention

Unlawful Act Manslaughter

Aggravating Factors

History of Criminal Conduct

Remorse

Totality Principle

Criminal Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Rae (No 2) [2024] NSWSC 713
Hearing dates: 11 June 2024
Date of orders: 13 June 2024
Decision date: 13 June 2024
Jurisdiction: Common Law
Before: N Adams J
Decision:
For the offence of manslaughter, Michael Rae I convict you and sentence you to:
(1) Imprisonment for a term of 9 years to commence on 1 August 2023 and expire on 31 July 2032.
(2) The non-parole period is 5 years and 9 months commencing on 1 August 2023 and expiring on 30 April 2029. The offender will be eligible for parole on 30 April 2029.
I note that the effective total head sentence is 11 years from 1 August 2021 until 31 July 2032 and the effective non-parole period is 7 years and 9 months to expire on 30 April 2029.
(3) Pursuant to s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the offender is advised of the existence of that Act and of its application to the offences of which he has been convicted. His legal representatives are requested to advise him of the implications of that Act to him.

Catchwords:
SENTENCE – Manslaughter – unlawful and dangerous act – accidental shooting – late guilty plea – extensive criminal history – aggravating factor of committing offence whilst on parole – much of offender’s adult life spent in custody – offence committed whilst offender on parole – genuine remorse established – difficult childhood with family mental health issues – both parents committed suicide – moral culpability reduced – history of illicit substance abuse – totality principle

Legislation Cited:
Crimes Act 1900 (NSW), s 18(1)(b)
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 25E(3), 44(2)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Dungay v R [2020] NSWCCA 209
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Harris v R [2023] NSWCCA 44
Huynh v R [2024] NSWCCA 61
Lloyd v R [2022] NSWCCA 18
Paterson v R [2021] NSWCCA 273
R v Abbas [2014] NSWCCA 188
R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep)
R v Carberry (No 5) [2023] NSWSC 523
R v Forbes [2004] NSWSC 421
R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1
R v Millwood [2012] NSWCCA 2
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Pennisi [2001] NSWSC 461
R v Rae [2013] NSWCCA 9
R v Van Oosterum [2004] NSWSC 532

Category: Sentence
Parties: Rex (Crown)
Michael Rae (Offender)
Representation:
Counsel:
L Carr SC/M Coates (Crown)
P Rosser KC (Offender)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Mandy Hull & Associates (Offender)

File Number(s): 2021/219124
Publication restriction: Orders…

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 Rae (No 2)

Details

AGLC: R v Rae (No 2) [2024] NSWSC 713
Case: [2024] NSWSC 713
Decision Date: 13 June 2024

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the respondent, Rae, who had been convicted of manslaughter by unlawful and dangerous act for accidentally shooting a friend during a drug-related gathering. The incident occurred while Rae was on parole, which significantly impacted the severity of the sentence. The appeal was heard in the Court of Criminal Appeal. The primary legal issues that the court needed to decide involved the appropriate sentence for the respondent, taking into account the circumstances of the offence, Rae's criminal history, and the principles of sentencing.

The court examined the nature of the offence, which involved the use of a firearm in a manner that was inherently dangerous, leading to the death of the victim. The court noted the respondent's late guilty plea and his extensive criminal history, which included much of his adult life spent in custody. A significant aggravating factor was the commission of the offence while on parole, which demonstrated a disregard for the conditions of his release. However, the court also considered mitigating factors such as Rae's genuine remorse, his difficult childhood with family mental health issues, and both parents' suicides. These factors reduced the moral culpability of the offender. Additionally, the court acknowledged Rae's history of illicit substance abuse and the totality principle, which requires consideration of the totality of the offender's circumstances.

The court concluded that while the offence was serious and the aggravating factors were significant, the mitigating factors and the totality principle warranted a sentence that recognised the respondent's unique personal circumstances. The court decided to impose a sentence that balanced the need for punishment and deterrence with the mitigating factors and the respondent's demonstrated remorse. The appeal was allowed, and a new sentence was imposed, taking into account all relevant factors.

Orders