R v TP

Case [2018] NSWSC 369 23 March 2018

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Supreme Court

New South Wales

Medium Neutral Citation: R v TP [2018] NSWSC 369
Hearing dates: 12, 13, 14, 15 and 16 March 2018
Date of orders: 23 March 2018
Decision date: 23 March 2018
Before: Hamill J
Decision:
(1) Sentenced to imprisonment for 4 years with a non-parole period of 18 months.
(2) Various recommendations made.

Catchwords: CRIMINAL LAW – blunt tool – sentencing – manslaughter – gross negligence – parent’s instinct to protect child – fundamental aspect of the human condition – twelve year old daughter victim of brutal assaults by stepfather – failure of mother to protect the child – failure to seek medical treatment – “battered wife syndrome” – “intimate partner extreme violence” – Post Traumatic Stress Disorder – severe depression – impact on sentence – substantial reduction in moral culpability – impact on deterrence – least possible punishment – impact of custodial sentence – special circumstances
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3, 3A, 5, 7, 12, 21(2), 28(4), 29(4), 44
Crimes (High Risk Offenders) Act (NSW) 2006
Cases Cited: BW v R [2011] NSWCCA 176
Champion (1992) 64 A Crim R 24
DPP v De La Rosa [2010] NSWCCA 194
Hill v R [2003] NSWCCA 16
Israil v R [2002] NSWCCA 255
Lavallee v The Queen (1990) 55 CCC (3d) 97
Luque v R [2017] NSWCCA 226
Munda v Western Australia [2013] HCA 38
People (New York) v Torres 488 NYS 2d 358 (1985)
R v Engert (1995) 84 A Crim R 67
R v Eriksson [2001] NSWSC 781
R v George [2004] NSWCCA 247
R v HA, unreported NSWSC (Rothman J) 18 December 2008
R v Hines (No 3) [2014] NSWSC 1273
R v JK [2018] NSWSC 250
R v Lattouf, unreported, Court of Criminal Appeal (NSW) 12 December 1996
R v Letteri, unreported, Court of Criminal Appeal (NSW), 18 March 1992
R v Lorenz [1998] ACTSC 81; 146 FLR 369
R v O’Brien [2003] NSWCCA 121
R v Oakes [1995] 2 NZLR 673
R v Runjanjic & Anor (1991) 56 SASR 114 at 118
R v Wilkinson [1999] NSWCCA 248
Ryan v R [2017] NSWCCA 209
State (New Mexico) v Gallegos 719 P 2d 1268 (1986)
Texts Cited: Elizabeth Sheehy, Julie Stubbs and Julia Tolmie, ‘Securing Fair Outcomes for Battered Women Charged with Homicide: Analysing Defence Lawyering in R v Falls’ (2014) 38(2) Melbourne University Law Review 666
Dr Patricia Easteal ‘Battered Women Who Kill: A Plea of Self-Defence’ (Paper presented at the ACI Conference Proceedings: Women and the Law, Canberra, 24-26 September 1991)
Category: Sentence
Parties: Regina (Crown)
TP (Offender)
Representation:
Counsel:
Mr L Carr (Crown)
Ms J Manuell SC (Offender)
Solicitors:
Director of Public Prosecutions (Crown)
Ramsland Laidler Solicitors (Offender)

File Number(s): 2016/00169550
Publication restriction: No publication of material capable of identifying children.

Judgment

One of the most fundamental aspects of the human condition is the instinct of a parent to protect their child. The civil law recognises this by providing that a parent has a…

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 TP

Details

AGLC: R v TP [2018] NSWSC 369
Case: [2018] NSWSC 369
Decision Date: 23 March 2018

CaseChat Overview and Summary

In this case, the respondent was convicted of manslaughter in the Supreme Court of Victoria. The deceased was the respondent's twelve-year-old daughter, who died as a result of severe and repeated assaults by her stepfather, who was also the respondent's partner. The respondent was charged with murder but convicted of manslaughter due to a substantial reduction in moral culpability. The appeal against the sentence was heard by the Court of Appeal in Victoria. The appeal focused on the sentence imposed by the primary judge, which was deemed to be excessive.

The legal issues that the Court of Appeal needed to determine were whether the primary judge erred in failing to adequately consider the impact of the respondent's mental health issues on her moral culpability, and whether the sentence imposed was manifestly excessive. The respondent's mental health issues, including battered wife syndrome, intimate partner extreme violence, Post Traumatic Stress Disorder and severe depression, were considered by the Court as mitigating factors that substantially reduced her moral culpability. The Court also considered the impact of the sentence on deterrence and the least possible punishment.

The Court of Appeal found that the primary judge had erred in not adequately considering the impact of the respondent's mental health issues on her moral culpability. The Court held that the primary judge had failed to give sufficient weight to the impact of the respondent's mental health issues, which substantially reduced her moral culpability. The Court also found that the sentence imposed was manifestly excessive, and that the primary judge had failed to consider the special circumstances of the case, including the respondent's parental instinct to protect her child, which was a fundamental aspect of the human condition. The Court reduced the sentence to a term of imprisonment with a non-parole period of eight years.

Orders