R v Yardley

[2019] NSWCCA 291

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Yardley [2019] NSWCCA 291
Hearing dates:	11 November 2019
Date of orders:	20 December 2019
Decision date:	20 December 2019
Before:	Meagher JA at [1] Bellew J at [2] Lonergan J at [90]
Decision:	(1) The Crown appeal is allowed. (2) The sentence imposed by Acting Judge Conlon SC in the District Court of New South Wales is quashed. (3) In lieu thereof, the respondent is sentenced to a non-parole period of 4 years and 9 months imprisonment commencing on 19 July 2019 and expiring on 18 April 2024. (4) An additional term of 1 year and 7 months imprisonment is imposed commencing on 19 April 2024 and expiring on 18 November 2025.
Catchwords:	CRIME – appeals – appeal against sentence – by Crown on ground of manifest inadequacy – manslaughter – respondent received a non-parole period of 18 months with an additional term of 2 years – sentencing judge made finding of special circumstances – sentencing judge described offence as “falling below mid-range” and “towards lower end of range” – finding of objective seriousness did not reflect characteristics of offending – finding of special circumstances not justified – non-parole period did not reflect seriousness of offending – respondent re-sentenced
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW)
Cases Cited:	Attorney General for NSW v McMahon Mining Services Pty Limited [2019] NSWCCA 8 Butters v R [2010] NSWCCA 1 CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9 Collier v R [2012] NSWCCA 213 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DPP v Darcy-Shillingsworth [2017] NSWCCA 244 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hiron v R [2007] NSWCCA 336 Jonson v R [2016] NSWCCA 286; (2016) 263 A Crim R 268 Maglis v R [2010] NSWCCA 247 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Merrick v R [2017] NSWCCA 264 Pfitzner v R [2010] NSWCCA 314 R v Barker [2016] NSWCCA 193 R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep) R v Bryce (No 5) [2014] NSWSC 1184 R v DH; R v AH [2014] NSWCCA 326 R v Fidow [2004] NSWCCA 172 R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1 R v GWM [2012] NSWCCA 240 R v Munter [2009] NSWSC 158 R v Phelps; R v Zalapa [2018] NSWCCA 191 R v Pullen [2018] NSWCCA 264 R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 R v West [2011] NSWCCA 91 Simpson v R [2019] NSWCCA 137 Stephenson v R [2008] NSWCCA 266 Tepania v R [2018] NSWCCA 247
Category:	Principal judgment
Parties:	Regina – Appellant David Alan Yardley – Respondent
Representation:	Counsel: B Hatfield – Appellant S Howell – Respondent   Solicitors: C Hyland, Solicitor for Public Prosecutions – Crown Mardini Defence Lawyers – Respondent
File Number(s):	2017/357100
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 19 July 2019 Before: Acting Judge Conlon SC

Judgment

1. MEAGHER JA: I agree for the reasons given by Bellew J that the sentence imposed on the respondent was manifestly inadequate, that this Court should exercise the discretion to vary that sentence, and that the respondent should be sentenced as his Honour proposes. The respondent’s actions in unlawfully assaulting the deceased were purposeful, voluntary, unprovoked, involved a number of forceful and violent blows to his head and carried an appreciable risk of serious injury to the deceased. This happened in circumstances where the respondent was aware of the deceased’s frailty due to his medical condition, and the deceased’s reaction to the respondent’s arrival at his bedroom door had not caused the respondent any apprehension of harm and did not present any threat to his safety.

2. BELLEW J: On 1 May 2019, two days after his listed trial date, David Alan Yardley (the respondent) pleaded guilty to an offence in the following terms:

Between 21 March 2015 and 3 April 2015, at Sydney in the State of New South Wales, did unlawfully kill John Raymond Yardley.

3. That offence was contrary to s 18(1)(b) of the Crimes Act 1900 (NSW) (the Act) and carried a maximum penalty of 25 years imprisonment. The Crown accepted the respondent's plea in full discharge of an indictment which included a second count of unlawful assault causing death, contrary to s 25A(1) of the Act.

4. On 19 July 2019 the respondent was sentenced by Acting Judge Conlon SC to a non-parole period of 18 months imprisonment commencing on 19 July 2019 and expiring on 18 January 2021, with an additional term of 2 years imprisonment expiring on 18 January 2023.

5. By notice dated 20 August 2019 the New South Wales Director of Public Prosecutions has brought an appeal to this Court against the sentence imposed upon the respondent, on the ground that such sentence is manifestly inadequate.

THE FACTS

6. The respondent was the non-biological brother of John Raymond Yardley (the deceased). The respondent and the deceased grew up with their adoptive parents in a family home in southern Sydney. [1] On 12 September 2013 their father died, shortly after which the respondent returned to live in the family home with the deceased. Their adoptive father left the entirety of his estate to the deceased which comprised the home (the estimated value of which was then $650,000.00) and cash in the sum of approximately $78,000.00. [2]

   1. ROS 2.

   2. ROS 2.

7. The respondent challenged the fact that no provision had been made for him under his adoptive father’s will. The dispute was ultimately settled by the execution of a Deed of Family Arrangement dated 14 April 2014, pursuant to which the deceased agreed to transfer 35% of the estate to the respondent, with the family home to be sold at the earliest possible date. The deceased further agreed to make an advance payment to the respondent of $10,000.00. [3]

   3. ROS 2.

8. The deceased had an extensive medical history dating back many years which included:

1. a stroke in 1997;

2. a seizure in 1998;

3. a diagnosis of epilepsy in 2000;

4. a diagnosis of Polycythaemia Rubra Vera in 2003;

5. upper limb DVT, gallstones and pancreatitis diagnosed in 2013; and

6. a cerebrovascular incident in 2014. [4]

   4. ROS 7.

9. The Polycythaemia Rubra Vera caused the deceased to develop excessive red blood cells. In 2012 the condition became more aggressive and converted to myelofibrosis which, in turn, caused the deceased's bone marrow tissue to be gradually replaced with fibrosis scar-like material, which led to progressive bone marrow failure. The deceased's medical conditions forced him to cease full-time employment and he thereafter commenced to receive a disability support pension, although he remained independent in terms of daily living.

10. In about August 2014 a real estate agent was engaged by the deceased to market the family home for sale. However, due to the deceased's health issues, the property was not actually placed on the market for sale until 3 March 2015 with an auction date of 26 March 2015. The house was sold at auction for $991,000, some $161,000.00 over the reserve price. [5]

    5. ROS 2.

11. At about 10.00pm on 21 March 2015, five days prior to the auction the deceased was asleep in his bedroom in the family home. The respondent had been out, and upon returning to the premises he went to the deceased’s bedroom and woke him up. The deceased got out of bed and walked towards the bedroom door where the respondent berated the deceased, claiming that the delay in selling the family home had cost him $100,000. [6]

    6. ROS 3.

12. The respondent then punched the deceased several times to the head, causing him to fall backwards onto the floor. Although he was bleeding profusely from a laceration to the bridge of his nose where he had been punched, the deceased managed to ring 000 and told the operator:

I've been attacked in my room and I'm bleeding pretty badly, I'll need an ambulance.

13. When asked who had been responsible for the assault, the deceased said:

My brother [attacked me]

[Did he use a weapon?] No, punching me.

14. The deceased also told the operator that he was bleeding from the forehead and the nose, that there was a fair bit of blood, and that he was lightheaded. [7]

    7. ROS 3.

15. On arrival at the premises, paramedics observed that the respondent was agitated, and was pacing back and forth. The deceased was found to be conscious and breathing and said words to the effect:

I have been beaten up by my brother, I have been punched by my brother, he does this when he has been drinking. I was in bed asleep when he came in and he hit me. [8]

8. ROS 4.

16. One of the paramedics who attended the scene recorded the following history provided by the deceased:

Patient was asleep when his brother stormed in ranting and raving, then assaulted patient by punching him in the face. On arrival of ambulance, patient supine on the floor amongst his clothes with a laceration to the bridge of nose, continuous bleeding, forehead swollen, right ear lobe laceration, left knee abrasion. [9]

9. ROS 3.

17. Photographs taken at the time showed a significant amount of blood on the deceased, over the floor of his room, and on his bed. [10]

    10. ROS 4.

18. The deceased was taken to Sutherland Hospital, where he was noted to have:

1. nasal lacerations;

2. bilateral nasal bone fractures;

3. a laceration to the right ear; and

4. bruising to the forehead.

19. A CT scan of the brain showed acute intracranial bleeding. [11] As a consequence, the deceased was transferred to the neurosurgical unit at St George Hospital. Although his condition was initially stable, it gradually deteriorated, with CT scans of the brain conducted on 24 March 2015 and 27 March 2015 demonstrating a progressively increasing subdural haematoma. [12] As a consequence, the deceased underwent a craniotomy and evacuation on 28 March 2015. There was an acute deterioration in his condition on 30 March 2015 and a CT scan of the brain taken on that day showed further bleeding. The deceased underwent a repeat craniotomy to evacuate the subdural haematoma but there was no neurological improvement and he subsequently died on 3 April 2017. [13]

    11. ROS 8.

    12. ROS 8.

    13. ROS 8.

20. A post-mortem examination of the deceased conducted by Professor Duflou on 7 April 2017 revealed a large subdural haemorrhage within the skull. The cause of death was found to be complications of intracranial haemorrhage. In his report, Professor Duflou stated: [14]

Given the circumstances described, more likely than not the initial subdural haemorrhage is a result of physical force to the head and is therefore less likely to be a spontaneous bleed. Further, although extension or subdural blending is not uncommon, [it is] likely that the deceased's pre-existing condition resulted in this complication which resulted in his death the number of days later.

14. ROS 8-9.

21. In the opinion of Professor Duflou, there was no doubt that the deceased had sustained blunt force injuries to the face in the form of a laceration to the bridge of the nose, nasal bone fractures, and extensive bruising and swelling. In his opinion, those injuries were entirely consistent with blows having been inflicted on the deceased by an assailant. Professor Duflou considered it likely that the deceased's blood thinning medication had significantly contributed to his death. [15]

    15. ROS 9.

22. Dr Flecknoe-Brown, a consultant physician and clinical pathologist, expressed the view that the clinical events and subsequent post-mortem pathology findings confirmed that the underlying cause of the deceased's death was the subdural haemorrhage. [16]

    16. ROS 10.

23. The respondent was arrested on the night of the assault and taken to Miranda Police Station where he participated in an interview with police. In the course of that interview, the respondent acknowledged that he knew that the deceased had a number of medical conditions, saying:

Oh yeah, he's been dying for fucking 30 years. [17]

17. ROS 5.

24. In terms of the offending, the respondent was asked: [18]

    18. Q and A 27-32.

Q27    Where, whereabouts in the house were you when this took place?

A.   Well, I was addressing him from the door of his bedroom and then he's come up and, and in my face at the door. I didn't enter his room ‘cause that's his space. That's the way we were bought (sic) up. Our bedrooms were personal space and you didn't go into someone's room unless you asked, you know? But at the door I said to him, right, What the hell’s going on with the sale of the property? Oh, it's all going to happen when it happens. This is what's been going on for two years. It's all right for him; he's got all the cash. He's got the house, the whole lot. We’re looking at an estate that’s worth $1 million, right, and I've received $20,000 in two years. He's hanging onto the rest.

Q 28    When you say that John came at you, what does that mean?

A.   Well, he, he got up out of bed and he said, Well, what are you gunna do about it? What's it to you? I said, Well, we need to sell the place, John. He said, Oh, it's going to sell. This is what I've been copping for two years, this same lip service; Oh, it's going to sell. Oh, yeah, we're going to do, I'm doing everything I can. I'm doing this. All I want to do is I want to get some closure over my father's death, right? When my father died I was working in Queensland and I got a text message that said, Dad has passed away. Details in letter. This is the type of compassion I get from this fellow, you know? I didn't even know dad was crook.

Q29.   I'll ask you again to maybe explain that in a bit more detail the way that you said that John has come at you, like – – –

A.   Well, he got up out of his bed, right, and came to the door and said to me, What’s, what's your problem? What are you going to do about it?

Q30.    Mmm

A.   And he's tried to grab me and that's when I, when I've defended myself. You understand this bloke’s given me terrible hidings over the years; lumps up, lumps all over my head, concussion to the point of vomiting and no support from the parents because they, they wanted, they were in denial that he never did it. Even to this day John doesn't admit that he used to flog me. I asked him to apologise about what he used to do to me and he wouldn't apologise. He goes, I never did it. The guy’s either a complete liar or he's got mental problems. You can't deny the stuff that went on. Like, I've been to a psychologist; so has he. I've' had my, I've tried to lay it all out on the table and get my problems sorted out, my mental issues, you know? Has he? Not once.

Q31.   How did you defend yourself?

A.   Well, he's tried to grab me around the neck and I've just, I just started swinging. That's it. Just started, like, lashing out to, to get him off me. He's a lot bigger than I am, or he was but he's not anymore but he still thinks he's bigger than me.

Q32.    What was going through your mind when you started swinging?

A.   Get him off you. Get him, I had to get him off me. He's always hurt me whenever, whenever I've tangled with him in the past I've always come off second best. Tonight's the first time I've ever got one on him, you know, and I don't think that's a good thing but every other time he's flogged me. I never went running to the coppers. Never went, his mum and dad never reported to the police and I want it to be on the record that I saved his life five weeks ago, six weeks ago; that he collapsed in the kitchen from pancreatitis, right? When I went out there, when I went out there he's laying there covered in blood, the same as he was tonight, and I said, What's happened to you? He said, I don't know. I don't know. Anyhow, I've called the ambulance, they've come, he's got severe pancreatitis and they reckon another four or five hours he'd have been dead.

25. After canvassing other matters, the questioning of the respondent then returned to the circumstances of the offending: [19]

    19. Q and A 72-99.

Q72.   So you said he grab you when – – –

A.   Oh, he's went to grab me and I, I wouldn’t let him. I wouldn’t let him ‘cause every time he grabbed me in the last 20 years I came off second best.

Q73.   OK. So what was he, what did he do?

A.   He came at me and he said, What are you going to do about it? And he went to grab me at the door which, I don't know if he was going to push me out or what – – –

Q74.    Yep.

A.   – – – and I just went, No. I'm not taking it any more.

Q75.   OK. So whereabouts did he try and push you?

A.   From the door out. I, I didn't go into his room. He came to the door.

Q76.    Yep. So whereabouts did he push you?

A.   In the chest, pushed, just pushed me back.

Q77.   Yep. OK. And then what’s happened after that?

A.   I’d just had enough. I just, I just struck out.

Q78.   Ok. So – – –

A.   I can't take a chance with him now. If he gets hold of me I'm gone.

Q79.   What do you mean, what do you mean struck out?

A.   I punched him.

Q80.   OK. Where did you punch him?

A.   I don't know.

Q 81    You don't know?

A.   I don't know.

Q82.   How many times?

A.   Five. Five times. Enough to fuckin’ hurt my hand. You know what I mean? Like, I clicked, mate. I, I was, it was fight or fight.

Q83   Mmm hmm.

A.   If I didn't hit him he was going to hurt me. That's what’s always been the result in the past. He has flogged me hard over the years, right, real hard.

Q84.    So why did you hit him?

A.   Because I thought he was going to hit me. That's always been, that's always been his resort in the past.

Q85.   OK.

A.   Whenever I've asked for a reason I’ve just got bashed.

Q86.    OK.

A.   Well, I have a history of domestic violence with this guy, right?

Q87.   What was the distance – – –

A.   And none of it’s documented because the family wouldn't do it.

Q88.   OK. What was the distance between you and him?

A.   When?

Q89.   When that happened; when that incident occurred when you struck out – – –

A.   Oh, I suppose a foot.

Q90    A foot?

A.   Like, he's come to his door.

Q91.    Yep.

A.   I don't enter his room. We were brought up we don't enter each other's rooms.

Q92.   Yeah, mate, so a foot, yeah?

A.   Yeah, about a foot.

Q93.    Yep. OK. So then after you've hit him five times what's happened?

A.   I walked back and I said, Do you need me to help you, John? I said, Do you want me to call you an ambulance?

Q94    All right.

A.   I said, You're bleeding. You’re hurt.

Q95.   All right.

…      

Q96.   You say he's gone out to grab you. Did he actually touch you?

A.   Yeah. Yeah, around the chest here he's gone to grab the and I just pushed him away and whack. That's it. Because I know the consequences of getting grabbed by this fellow. He's, youse don't want to know about the past anyway. A lot of history. This isn't a one-off. This isn't just, I've bashed my brother ‘cause I don't like him. This is, He's terrorised me all my life and he's put me, and he's threatened me tonight and I've had enough.

Q97.   You said that John, when he got the bed and came walking towards you – – –

A.   Yeah.

Q98.    – – –he said, quote, What are you going to do about it? What's that in relation to?

A.   Well he's trying to bully me. He has all my life. He's trying to bully me. What am I going to do about it? I am the little brother. What am I going to do about it? Well, he doesn't know. I stick up for myself. That's it.

Q99.    What did you say before that, that – – –

A.   I said, What's going on with a house, John? I said, You’ve lost us nearly $100,000.00 so far. I said, This needs to get sorted out real quick, mate. Oh, it will happen when it happens. That's what he's been saying for two years. He's cost as more than $100,000. We have a house valued at 920; now we getting quotes for low 800s. We had over, about 12 months ago we had it valued for 920. You know, like, we’re losing 100,000, right, and I'm not, I wanted to keep the house, the family house. We’re both adopted, me and John, from different families, all right? So there's no blood, you know, like, but the thing is I spent all my life trying to be his brother and he knew his whole life I wasn't because he was six when I was adopted he had it explained to him. I never, I found that I was adopted when I was 27 years old.

26. The respondent was then asked: [20]

    20. Q and A 132-147.

Q132.   When you said, let me just see, so when you said he's tried to push you – – –

A.   He tried to grab me, not push me.

Q133.   – – – sorry, grab you, you've, just to clarify, did you say then you've then pushed him back to get him away? Is that what you – – –

A.   No. I can't match him for strength. He's bigger than me.

Q134.   OK so what have you done once he's tried to do that to you?

A.   I've hit him.

Q135.    OK. All right.

A.   It's the only way I can get him off me. It's the only, and like, try and defend myself, like, with all this shit, it's never worked for me in the past.

Q136.   So what's happened in that incident once, when you've been hitting him – – –

A.   I kept going until he stopped, till he, till he falls. Then I went away.

Q137.   Was he still standing up or on the floor?

A.   Oh, no. He reeled back and I left him in his room. I never went into his room and kept hitting him, hitting him or any of that shit.

Q138. So how many, so you've hit how many times?

A.   Four or five times.

Q139.   Yeah. So how many times did you hit him for him to fall on the ground?

A.   Well, I don't think he did. He, he went and laid on his bed first.

Q140.   OK. So you then – – –

A.   You know – – –

Q141. So you then hit him on his bed or – – –

A.   I never touched him on his bed.

Q142.   OK. So when – – –

A.   I never touched him in his room.

Q143.   At what, I just want to know what point you hit him?

A.   At the door.

Q144    At the door?

A.   Yeah. While he was coming at me.

Q145.   All right.

A.   I did what I had to do to stop him coming at me.

Q146.   OK.

A.   And, and he was, he was on the bed and he was all good – – –

Q147.   Mmm hmm.

A.   – – – till he made his phone call and he went and laid on the floor with all the blood and the, you just don't get it, hey? This guy's a bloody drama queen, you know?

THE PERSONAL CIRCUMSTANCES OF THE RESPONDENT

27. At the time of sentence the respondent was 54 years of age. He had what the sentencing judge described as a “limited criminal record", with convictions for possessing prohibited drugs in 1983 and 1985 (in respect of each of which he was fined) and a conviction for assault occasioning actual bodily harm in 1991 (in respect of which he received a deferred sentence).

28. A report of Dr Patrick Sheehan was before the sentencing judge. Dr Sheehan stated[21] that the respondent had reported relatively persistent problems with substance abuse during his life, which had commenced with smoking cannabis from the age of 15 years and which had progressed to the use of methylamphetamine in 2016. [22] The respondent reported to Dr Sheehan[23] that he had never participated in any significant treatment intervention. Dr Sheehan expressed the view that the respondent would benefit from such intervention “of at least moderate intensity".

    21. At [12].

    22. At [14].

    23. At [15].

29. The respondent reported an otherwise unremarkable health history to Dr Sheehan. He denied any childhood disorders or history of symptoms consistent with psychosis, and said that he had never been admitted to a psychiatric hospital. [24] The respondent described a pattern of low psychological resilience to stress, loss or conflict. He reported a strong grief reaction to the death of his adoptive mother in 2004, and said that although he had been prescribed anti-depressant medication at the time, he ceased using it because it had made him feel anxious. He similarly reported that although he had been prescribed various anti-depressant medications since 2010, he had never persisted with them due to unpleasant side-effects. [25] He denied that he had been particularly depressed at the time of the offending, but said that he had fallen into a deep depression in its aftermath, to the point where he reported serious suicidal ideation. [26]

    24. At [16]-[17].

    25. At [17].

    26. At [18].

30. Dr Sheehan carried out an assessment of the respondent’s personality functioning and psychological adjustment and reported as follows: [27]

27. Mr Yardley's response style suggested a valid profile, but did reveal a tendency towards self-debasement that may have resulted in over-inflation of his disorders.

28. His score profile yielded mild elevations on the personality scales for Depressive, Dependent Antisocial, Sadistic and Masochistic Personality, suggesting broad personality pathology. Most notably, a mild elevation was present under the severe personality syndrome scale for Borderline Personality, suggesting serious problems with affective regulation, interpersonal relationships and unstable sense of self.

29. In terms of more transient and acute emotional/psychiatric functioning (i.e., clinical psychopathology), his responses produced moderate elevations for Anxiety, Dysthmia (now known as Persistent Depressive Disorder) and Drug Dependence. On the severe syndrome scales, Mr Yardley yielded a moderate elevation under the indicia of Major Depression. The overall constellation of scores is consistent with Mr Yardley's presentation, suggesting compromised personality function, mood dysregulation, substance abuse and high levels of current stress.

27. At [27]-[29].

31. Dr Sheehan concluded his report with the following: [28]

31. Mr Yardley reports largely favourable childhood circumstances. He reports a reasonable education and has not been grossly disordered in his earlier life, but his adjustment would appear to have been undermined by personality vulnerabilities and substance misuse. He has been unable to establish stability in employment and relationships, which are key indicators of adjustment. He has attracted prior convictions related to substance use and interpersonal conflict, but nothing close to being as serious as the current matters. Mr Yardley's personality orientation would seem the most relevant factor contributing toward his offence, having strong disproportionate emotional reactions to conflict, anger, perseveration on grievances, strong beliefs of persecution and poor appraisal of his options to resolve the situation in an emotionally mature manner.

32. Mr Yardley's self-regulation has only been further aggravated by the stress and difficulties related to the offence. His methylamphetamine abuse is a particular concern. He requires stabilisation with regard to residence, medication, abstinence from illicit substances and psychological support. If a custodial sentence is imposed, there would likely be some form of psychological collapse and an escalating risk of self-injurious behaviour. I would recommend close and immediate attention through Justice Health on admission to custody. On stabilisations, relevant institutional programs would include EQUIPS (Foundations, Aggression and Addictions) and Real Understanding and Self Help (RUSH).

THE FINDINGS OF THE SENTENCING JUDGE

28. At [31]-[32].

The disputed facts

32. In the course of the sentence proceedings, two factual issues arose for the determination of the sentencing judge. The first of those issues stemmed from evidence given by Karen Strickland and Craig Ruddiman, both of whom were paramedics who had attended the scene. Ms Strickland gave evidence that when she arrived at the deceased's premises the respondent was agitated, and that when asked if he was the patient he had replied:

No he is in there, I did it, call the cops, he deserved it.

33. Mr Ruddiman gave evidence that whilst Ms Strickland was treating the deceased, the respondent said:

Yeah …. he deserved it, call the cops.

34. It was an issue on sentence as to whether or not the respondent had ever said that the deceased “deserved it”, in respect of which the sentencing judge made the following finding: [29]

Now whilst the timing of that statement differs as between the two paramedics I am satisfied beyond reasonable doubt that the accused indeed said that his brother (the deceased) deserved it.

29. ROS 4.

35. The second factual issue arose from the respondent’s assertion when interviewed that shortly prior to the assault the deceased had pushed or grabbed him, producing an apprehension of fear. In respect of this issue his Honour found: [30]

On the balance of probabilities I can accept that the deceased went to push the offender to move him from the doorway of his room. However, I am satisfied beyond reasonable doubt that that action do not produce any apprehension of fear in the offender.

I am satisfied the offender attacked his brother out of frustration and anger arising from the continuing dispute and delay concerning the sale of the house.

30. ROS 6.

The objective seriousness of the offending

36. In assessing the objective seriousness of the offending, his Honour made reference[31] to the fact that the circumstances which may give rise to an offence for manslaughter are many and varied, and that of all criminal offending, manslaughter presents the greatest variations of circumstances, and degrees of culpability. Having done so, his Honour said: [32]

These principles reflect the significant difficulty confronting courts when attempting to make an assessment of the objective gravity of the circumstances constituting the particular offence of manslaughter under consideration. The instant case is no different and is marked by its own unique brand of facts and circumstances.

The Crown does not take issue with the offender’s motivation for waking up the deceased and confronting him, being the delay in the sale of the family home following the offender’s successful challenge to his father's will.

31. ROS 10 citing Stephenson v R [2008] NSWCCA 266; R v Forbes [2005] NSWCCA 377; (2005) 160 A Crim R 1; R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, unrep); R v Bryce (No. 5) [2014] NSWSC 1184.

32. ROS 11.

37. Having summarised the background to the offending, his Honour continued: [33]

On the evening of Saturday 21 March 2015 the offender went to his brother's bedroom and awoke the deceased from his sleep, causing him to get out of bed and go to the bedroom door. The offender struck the deceased a number of forceful and violent punches to the head causing the deceased to fall backwards and onto the floor. The manner in which that assault was occasioned carried with it an appreciable risk of serious injury.

The offender was clearly aware of the deceased's various medical conditions and, as earlier indicated, I am satisfied the deceased did not present any threat to the personal safety of the offender, nor did the deceased cause any apprehension of fear in the offender. The deceased bled profusely from the injury sustained and then developed an acute, rapidly progressing subdural haemorrhage which was the underlying cause of the deceased's death.

The blows were voluntary, intentional and unprovoked. Bearing in mind the difficulties that I have referred to above confronting courts when called upon to make assessments of objective gravity and manslaughter cases, in respect of the present matter, having considered all the circumstances, I do regard it as falling below mid range, indeed more towards the lower end of the range.

33. ROS 11-12.

The respondent's subjective case

38. Having summarised the respondent's background as recorded by Dr Sheahan, his Honour said: [34]

Upon my consideration of this material and the fact that for the majority of his life he has not demonstrated antisocial tendency, and has managed to maintain reasonably consistent employment, I am satisfied he has positive prospects of rehabilitation.

34. ROS 16.

39. In terms of the respondent’s remorse, his Honour said: [35]

The Crown has made a submission that although the offender has expressed some regret during his consultation with a psychologist there would appear to be insufficient evidence of genuine remorse for the purpose of section 21A(3)(i) of the Crimes (Sentencing Procedure) Act such as to qualify as a mitigating factor. There may be some merit in that submission, however, I do regard what he said to the psychologist as some evidence of his contrition.

35. ROS 17.

40. Having applied a “discount of about 10%” to reflect the respondent's plea of guilty, [36] and having observed [37] that in considering the appropriate penalty "the starting point is that manslaughter involves the unlawful taking of a human life”, his Honour said: [38]

Having already noted that the crime of manslaughter covers a magnitude of circumstances the sentence to be imposed must respect the sanctity of human life. Clearly no penalty other than imprisonment is appropriate.

I have already referred to the final recommendation of the psychologist. This, in conjunction with the fact that at 54 years of age he will be serving a custodial sentence for the first time, is sufficient reason to make a finding of special circumstances and to vary the statutory ratio.

36. ROS 17.

37. ROS 17.

38. ROS 17-18.

41. His Honour then imposed the sentence to which I have previously referred.

SUBMISSIONS OF THE PARTIES

Submissions of the Crown

42. Although the Crown relied upon a single ground of appeal, namely that the sentence imposed was manifestly inadequate, it was submitted that his Honour's reasons for sentence were also infected by:

1. an erroneous assessment of the objective seriousness of the offending; and

2. the imposition of a non-parole period that failed to reflect the seriousness of the offending.

43. Whilst the essence of the Crown’s principal submission was that there was an inconsistency between the characteristics of the offending which his Honour had identified and his ultimate conclusion as to objective seriousness, the Crown also submitted that, but for referring to the protean nature of this offence and the associated difficulties in assessing its objective criminality, the sentencing judge had failed to expose the reasoning for that conclusion. The Crown submitted that having noted the characteristics of the offending, his Honour had then moved directly to his conclusions, absent any expression or exposition of his reasoning process.

44. It was pointed out that in written submissions provided to his Honour during the sentence proceedings, the Crown had submitted that the offending fell “well inside” the middle range of objective seriousness by reference to a series of identified factors. It was submitted that the sentencing judge had failed to properly address, and have regard to, such factors.

45. The Crown further submitted that there were no mitigating factors which served to reduce the objective seriousness of the offending. In this regard, the Crown emphasised that the assault was not spontaneous, and was constituted by multiple blows. Whilst the Crown acknowledged that it had not been necessary for the sentencing judge to reach a conclusion about where the offending fell within a putative range, it was submitted that having done so, his Honour had fallen into error.

46. The Crown also emphasised that the respondent's plea of guilty carried with it an acceptance of the fact that a reasonable person would have foreseen that repeatedly and forcefully punching a person with a compromised medical condition would necessarily expose that person to risk of serious injury. The Crown submitted that the evidence supported a conclusion that the respondent knew of the deceased's ongoing health issues, and that in circumstances where he must have known that the deceased would not be able to defend himself, he had nevertheless violently assaulted him.

47. The Crown submitted that the erroneous conclusion reached by the sentencing judge as to the objective seriousness of the offending had led to the imposition of a manifestly inadequate sentence, particularly having regard to the fact that:

1. the respondent had gone to the deceased's bedroom and woken him so that he could berate him, in frustration and anger, about the delay in the sale of the family home;

2. the confrontation was not spontaneous, but had been “sought out” by the respondent;

3. the respondent was well aware of the parlous state of deceased’s health;

4. the respondent had repeatedly punched the deceased in the head with sufficient force to break the deceased’s nose, thus differentiating the offending from a so-called “one punch” case;

5. the blows inflicted by the respondent were unprovoked and violent, and it was only when the deceased fell down that the respondent had stopped;

6. the respondent showed no concern or care for the deceased, as evidenced by the fact that it was the deceased who called the ambulance, as well as by the fact that the respondent asserted that the deceased had “deserved it”; and

7. the assault had occurred in the deceased’s home, where he was entitled to feel safe.

48. The Crown further submitted that quite apart from the fact that the sentence imposed failed to reflect such factors, the sentence also failed to properly recognise:

1. the maximum penalty of 25 years imprisonment;

2. the fact that such maximum penalty serves as a guidepost; and

3. the utility of that guidepost in arriving at a sentence that properly took into account the need to uphold public confidence in the administration of criminal justice.

49. The Crown’s submissions then turned to the non-parole period. The Crown submitted, in effect, that the respondent’s subjective case was largely unremarkable. Whilst conceding that a finding of special circumstances was open, it was submitted that the favourable variation of the ratio between the head sentence and non-parole period which had been adopted by the sentencing judge following that finding was excessive, to the point of being wholly disproportionate. This, it was submitted, had resulted in the imposition of a non-parole period that failed to reflect the objective seriousness of the offending, as well as the need for general and specific deterrence. In this regard the Crown emphasised that the non-parole period imposed by the sentencing judge represented just 43% of the total term. The Crown further submitted that the fact that this was the respondent's first time in custody did not, at least of itself, justify a finding of special circumstances, and that in any event, such a factor substantially overlapped with other factors identified by Dr Sheehan.

50. It was acknowledged that in the event this Court was satisfied that the sentence imposed was manifestly inadequate, it was incumbent upon the Crown to satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised. [39] In support of its submission that it had discharged that onus the Crown pointed out that:

    39. CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [33] per French CJ and Gageler J and [56], [66] per Kiefel, Bell and Keane JJ.

1. the imposition of the sentence was not the result of any conduct on the part of the Crown at first instance;

2. there had been no delay in the institution of the present appeal;

3. the respondent's earliest date of release from custody was currently 18 January 2021, a significant period of time into the future;

4. there was no post-sentence evidence supporting a conclusion that this Court should not intervene; and

5. the increase in the sentence which was warranted was a substantial one.

51. It should be noted that in the course of oral submissions the Crown took the Court to sentences imposed in other cases of manslaughter. [40] However, the Crown expressly acknowledged the limited utility of using such decisions for comparative purposes.

    40. Merrick v R [2017] NSWCCA 264; Stephenson v R; R v Bryce (No 5).

Submissions of the respondent

52. Counsel for the respondent emphasised the principles governing Crown appeals against sentence. He also emphasised that the assessment of objective seriousness of an offence involves a discretionary process calling for a value judgment. Counsel submitted that such an assessment, particularly in a case of manslaughter, did not readily admit of precision, and that in particular, fine gradations in the assessment of objective seriousness are not a basis for asserting error.

52. Counsel acknowledged that the sentence imposed was (as he described it) “lenient” and that the non-parole period was (again as he described it) “markedly so”. However, counsel emphasised that this Court’s task was to determine whether the sentence was so far outside the range of the proper exercise of the sentencing discretion that it should be regarded as manifestly inadequate. Counsel stressed the experience of the sentencing judge, and submitted that his Honour’s assessment of objective seriousness was open having regard to all of the circumstances of the case. It was specifically submitted that the sentencing judge was not obliged to provide elaborate reasons for his conclusions as to objective seriousness[41] and this Court would not conclude that his Honour was in error in that respect because (inter alia):

    41. Simpson v R [2019] NSWCCA 137 at [32] per Davies J (Leeming JA and Button J agreeing).

1. the case was marked, as the sentencing judge had observed, by “its own unique brand of facts and circumstances";

2. although the respondent’s plea accepted that a reasonable person in his position would have realised that he was exposing the deceased to an appreciable risk of serious injury by assaulting him, the deceased’s death could not be, and was not, foreseen by the respondent;

3. the immediate consequences of the respondent's assault on the deceased were “relatively minor”;

4. the respondent's inability to foresee the ultimate consequences of his conduct tempered the significance of his comment that the deceased had “deserved it”;

5. the respondent’s knowledge of the deceased's pre-existing medical conditions did not aggravate the offending because the ultimate outcome of the assault could not be, and was not, foreseen;

6. although the respondent struck the deceased several times, the blows which were inflicted were not such as would, in the normal course of events, have had such tragic consequences;

7. the respondent's actions were born out of frustration with a difficult and pressured situation which prevailed at the time; and

8. the respondent had reacted to those pressures by actions that were impulsive and unplanned.

54. Counsel for the respondent submitted that specific deterrence had little part to play in determining an appropriate sentence, and that although general deterrence was a relevant consideration, the circumstances of this case did not make the respondent a particularly good vehicle for any wider community message. In advancing that submission, counsel sought to distinguish the present case from similar offending committed in the context of domestic violence.

55. Counsel for the respondent further submitted that the extent of any adjustment to the statutory ratio between the head sentence and the non-parole period was also a discretionary matter for the sentencing judge, and was subject only to the constraint that the non-parole period appropriately reflected the criminality involved in the offending. Counsel emphasised that there was no general rule or formula for the determination of an appropriate ratio once a finding of special circumstances had been made, and that the variation adopted by the sentencing judge in the present case was open as a matter of discretion, taking into account both objective and subjective considerations.

56. Ultimately, counsel for the respondent submitted that this Court should bear firmly in mind that determining an appropriate sentence in cases of manslaughter is notoriously difficult. It was submitted that this Court should reject the proposition that the sentence imposed was manifestly inadequate because:

1. the circumstances justified the conclusion reached by the sentencing judge as to objective seriousness;

2. the respondent had a modest criminal history;

3. the respondent's life had largely crumbled in the aftermath of the deceased’s death, a fact which was reflective of the grief that he had experienced in trying to come to terms with what had occurred;

4. the respondent was, as the sentencing judge found, remorseful;

5. specific deterrence had little, if any, role to play;

6. general deterrence, although relevant, was similarly of little significance; and

7. the finding of special circumstances was appropriate and supported by the evidence.

57. In terms of the residual discretion, counsel for the respondent submitted that offences of manslaughter were invariably committed in the context of facts and circumstances which were unique to the particular case. It was submitted that the present case was, as the sentencing judge had specifically said, no exception, and that in these circumstances any judgment of this Court would be of limited precedential value. It was submitted that no principles for guidance of sentencing courts had been identified by the Crown, and that in circumstances where the correct sentencing principles were applied by the sentencing judge, little further guidance was called for. It was submitted that in these circumstances, the Crown had failed to discharge the onus of establishing that this Court should decline to exercise the discretion not to intervene.

58. Finally, counsel for the respondent also took the Court to sentences imposed in other cases of manslaughter,[42] as well as to sentencing statistics. However, like the Crown, counsel also acknowledged the limited utility of such material.

    42. R v Munter [2009] NSWSC 158.

CONSIDERATION

59. In light of the assertion of manifest adequacy, the Crown must establish that the sentence imposed was unreasonable or plainly unjust, bearing in mind firstly that there is no single correct sentence, and secondly that a sentencing judge is to be allowed as much flexibility in sentencing as is consonant with the application of proper principle, and consistency of approach. [43] The principles governing Crown appeals were set out in R v Barker [44] by Hoeben CJ at CL (with whom Bathurst CJ and Price J agreed):

    43. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45.

    44. [2016] NSWCCA 193 at [52]-[55].

52. Crown appeals pursuant to s 5D of the Criminal Appeal Act 1912 must be brought for the primary purpose of this Court providing governance and guidance to sentencing courts. That requirement operates as a “limiting purpose” for such appeals and, by contrast with the Court’s jurisdiction in sentence appeals brought by offenders, so circumscribes the jurisdiction of this Court on Crown appeal as to prevent intervention (other than on the ground that the sentence is “plainly unjust” by reason of its manifest inadequacy) for the mere “correction of error in the individual sentencing proceedings” Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Tuala [2015] NSWCCA 8).

53. Accordingly, in a s 5D Crown appeal which asserts some errors of sentencing principle (apart from the ground that the sentence is “plainly unjust”) the Crown must:

(i)   establish the existence of error(s) by the sentencing judge    within one or more of the first four categories referred to in    House v R [1936] HCA 40; 55 CLR 499 at 505 (R v Tuala at [99]);

(ii)   Identify the sentencing principle which is engaged by such    errors: (R v Tuala at [99]);

(iii)   establish that the sentence under appeal is manifestly    inadequate: (Regina v Janceski per Hunt AJA at [25] with    whom Spigelman CJ and Howie J agreed).

…

55. Crown appeals pursuant to s 5D might also be brought for the purpose of this Court providing governance and guidance to sentencing courts where the sentence under appeal is so manifestly inadequate that it is “plainly unjust” and is thereby likely to undermine public confidence in the proper administration of criminal justice in the sentencing of offenders: (Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24]). Such appeals involve the fifth category of error referred to in House v R.

60. These principles have since been restated with approval. [45] They form the basis of this Court’s approach in the present case, accepting that manifest inadequacy of sentence is a conclusion which does not depend upon attribution of identified specific error in the reasoning of a sentencing judge. [46]

    45. See for example R v Phelps; R v Zalapa [2018] NSWCCA 191 at [50] per Hoeben CJ at CL (Bathurst CJ and Fagan J agreeing); R v Pullen [2018] NSWCCA 264 at [34] per Harrison J (Johnson and Schmidt JJ agreeing); Attorney General for NSW v McMahon Mining Services Pty Limited [2019] NSWCCA 8 at [48], [49] per McCallum and Fullerton JJ (Beazley P relevantly agreeing).

    46. Dinsdale at [6] per Gleeson CJ and Hayne J.

61. In my view, for the reasons that follow, the Crown's complaint of manifest inadequacy has been made out.

62. To begin with, the sentencing judge found [47] that the offending was characterised by the fact that the respondent had:

    47. ROS 11-12.

1. gone to the deceased's bedroom;

2. awoken the deceased from his sleep, causing him to get out of bed and go to the bedroom door;

3. struck the deceased with a number of forceful and violent punches to the head which were voluntary, intentional and unprovoked, and which caused the deceased to fall backwards onto the floor bleeding profusely from the wounds which had been inflicted;

4. assaulted the deceased in a manner which carried with it an appreciable risk of serious injury, in circumstances where:

5. the respondent was clearly aware, at least in a general sense, of the deceased's medical conditions;

6. the deceased did not present any threat to his (i.e. the respondent's) personal safety;

7. the deceased did not cause any apprehension of fear in the respondent;

8. the respondent had told paramedics that the deceased had “deserved it”; and

9. the respondent caused the deceased to develop an acute subdural haemorrhage which ultimately caused his death.

63. There is, in my view, a significant displacement between those characteristics of the offending which his Honour identified, and the conclusion which his Honour ultimately reached as to objective seriousness. The identified characteristics bespeak offending of substantially greater gravity than that which falls “below mid-range [and] indeed more towards the lower end of the range". Further in my view, his Honour’s conclusion in that respect does not sit comfortably with his express recognition of the fact [48] that “the starting point is that manslaughter involves the unlawful taking of a human life".

    48. ROS 17-18.

64. I also accept the Crown’s submission that the remarks of the sentencing judge are bereft of any exposition of the reasoning process supporting the conclusion as to the objective seriousness of the offending. Whilst I accept that this Court has observed that such reasons need not be elaborate, it has also observed that there is a need for such reasons to be sufficient to enable the parties, and this Court on appeal, to understand the basis for the conclusions reached. [49] The reasons given by the sentencing judge in the present case present some difficulty in that respect. The characteristics of the offending were identified, and a conclusion expressed, without any exposition of reasoning in between.

    49. Simpson at [32] per Davies J (Leeming JA and Button J agreeing) .

65. The assessment of the objective seriousness of an offence is an essential element of the sentencing process. [50] Given that the offence was not one which carried a standard non-parole period, it was not necessary for his Honour, for the purpose of assessing objective seriousness, to determine where the offending fell within a putative range. [51] However, having taken that course, his Honour fell into error for the reasons that I have set out, with the result that a manifestly inadequate sentence was imposed.

    50. Tepania [2018] NSWCCA 247 at [107]-[108] per Johnson J (Payne JA and Simpson AJA agreeing).

    51. Tepania at [132] per Johnson J (Payne JA and Simpson AJA agreeing).

66. Further, having made a finding of special circumstances pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act), his Honour varied the statutory ratio and imposed a non-parole period which was only 43% of the overall term. In R v GWM [52] Johnson J (with whom McClellan CJ at CL and I agreed) made the following observations regarding the determination of a non-parole period following a finding of special circumstances:[53]

… the adjustment of the statutory ratio, after considering factors relevant to the fettered sentencing discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which the offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence. The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36].

52. [2012] NSWCCA 240.

53. at [118].

67. The adjustment of the statutory ratio following a finding of special circumstances cannot result in the imposition of a non-parole period that fails to reflect the seriousness of the offending, and the need for general and specific deterrence. [54] In my view, that was the result in the present case. Whilst specific deterrence may have been of limited significance, general deterrence remained an important consideration. I am unable to accept the submission of counsel for the respondent that because the offending occurred in the context of a family dispute between two brothers, general deterrence had little role to play. The offending was an instance of domestic violence. The fact that it was between siblings, as opposed to partners, does not change that context, nor does it mean that the recognised importance of general deterrence of violence in a domestic setting is somehow diminished. [55]

    54. Maglis v R [2010] NSWCCA 247 at [28] per Howie AJ (Handley AJA and Adams J agreeing); R v West [2011] NSWCCA 91 at [56] per Johnson J (Whealy JA agreeing).

    55. As to which see DPP v Darcy-Shillingsworth [2017] NSWCCA 224 at [83]-[84] per Basten JA (Beech-Jones and Fagan JJ agreeing); Hiron v R [2007] NSWCCA 336 at [32] per Price J (McClellan CJ at CL and Hall J agreeing).

68. Further, the bases on which the finding of special circumstances was made were, in my view, somewhat nebulous. The first basis was what his Honour referred to as “the final recommendation of the psychologist". Dr Sheehan’s final recommendation was that once the respondent's condition had stabilised, he should undergo relevant institutional programs including EQUIPS and Real Understanding Self Help. The second basis, was the fact that the respondent was 54 years of age and would be serving a custodial sentence for the first time. In my view, those matters, whether taken alone or in combination, did not justify a finding of special circumstances at all, let alone one which resulted in an adjustment to the statutory ratio of the magnitude of that which was adopted.

69. In this respect, two particular matters should be noted. Firstly, this Court has expressed considerable reservations about whether the fact that an offender will find himself or herself in custody for the first time is capable of constituting special circumstances. [56] Secondly, even if it is accepted that this factor could, when combined with other factors, justify a finding of special circumstances, the only other relevant circumstance in the present case was the recommendation of Dr Sheehan that once the respondent's condition had stabilised, he should undertake certain courses. That recommendation said absolutely nothing about whether the respondent would benefit from a longer period on parole once released which is, after all, a primary focus of a consideration of whether special circumstances are made out. [57]

    56. See for example Collier v R [2012] NSWCCA 213 at [36] per McClellan CJ at CL (R A Hulme J and Schmidt J agreeing).

    57. R v Tuuta [2014] NSWCCA 40; (2014) 239 A Crim R 399 at [57] per Bellew J (Bathurst CJ and Hoeben CJ at CL agreeing).

THE RESIDUAL DISCRETION

70. The manifest inadequacy of the sentence having been established, the Crown bears the onus of establishing that the discretion conferred by s 5D(1) of the Criminal Appeal Act1912 (NSW) should be exercised to vary the sentence imposed. [58] In the course of oral submissions, counsel for the respondent emphasised that the primary purpose of an appeal against sentence by the Crown is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons, and that such purpose does not extend to the general correction of errors made by sentencing judges. [59] The essence of the submission advanced by counsel for the respondent was that the Crown had failed in the present case to establish that the appeal was brought for such a purpose, and that given the circumstances surrounding the respondent’s offending this Court would decline to intervene.

    58. CMB at [6] per French CJ and Gageler J.

    59. R v DH; R v AH [2014] NSWCCA 326 at [17]-[20] per Simpson J (Leeming JA agreeing).

71. I am unable to accept that submission. The protean nature of the offence of manslaughter is such that it necessarily covers a wide range of circumstances which might often be regarded, of themselves, as unique. If that were a basis on which to decline to intervene, it would follow that this Court would decline to intervene in the majority of these types of cases that come before it. That, in my view, would reflect an incorrect application of principle. Further, the respondent’s offending was committed in the context of a domestic relationship. In my view, there is a strong need for this Court to provide guidance and governance for the sentencing of persons who commit offences such as this in those circumstances.

72. It follows that the Crown has discharged its onus. This Court should intervene and vary the sentence which was imposed.

RE-SENTENCE

73. The facts and circumstances of the offending have already been set out at length. In addition to the characteristics of the offending which were identified by his Honour, four further factors should be noted.

74. Firstly, the violence perpetrated by the respondent on the deceased was gratuitous, cowardly and unprovoked, and was constituted by repeated blows to the head, in circumstances where the respondent was obviously aware of the deceased’s physical fragility due to illness.

75. Secondly, whilst I accept that the assault itself was not pre-meditated, the respondent’s decision to go to the deceased's room, which necessarily forms part of the facts and circumstances of the offending, was clearly not a spontaneous one.

76. Thirdly, even though the respondent may not (initially at least) have been aware of the ultimate gravity of what he had done, it must have been immediately clear to him that his actions had resulted in the deceased being severely injured. The photographs of the deceased and his bedroom are inconsistent with any other conclusion. Notwithstanding, the respondent showed no concern whatsoever for the deceased's well-being. On the contrary, he left it to the deceased to call the ambulance, told the paramedics upon arrival that the deceased had “deserved it", and spent a considerable time during the course of his interview with police attempting to blame the deceased for what had occurred.

77. Fourthly, the offending was aggravated by the fact that it occurred in the deceased's home, a place where he was entitled to feel safe. This is so, notwithstanding the fact that the respondent was entitled to be present in the home given that he also lived there. [60]

    60. Jonson v R [2016] NSWCCA 286; (2016) 263 A Crim R 268 at [50] per Bathurst CJ (Beazley P, Hall, Bellew and Adams JJ agreeing).

73. The respondent’s conduct was constituted, quite simply, by wanton and repeated acts of violence perpetrated on someone who was essentially defenceless and who, to the respondent’s knowledge, was in a fragile medical state. The deceased did nothing whatsoever which caused the respondent to feel fearful at all. The utter disregard with which the respondent treated the deceased is best gauged by his assertion that the deceased had “deserved it”, a comment made when it must have been apparent to the respondent that the deceased was severely injured. The characteristics which I have identified reflect offending of considerable seriousness, and of far greater gravity than the sentencing judge found.

74. The respondent did not give evidence on sentence. In the course of his interview with police, as well as in the course of his assessment by Dr Sheahan, [61] he continued to assert that the deceased had been the aggressor, a proposition which the sentencing judge rejected. In these respects, Dr Sheehan reported:[62]

    61. At [24].

    62. At [24].

He said that he was shocked when he came to learn of his brothers’ death (sic). He said:

“I broke down and cried. Poor John. I loved him. I did feel responsible, terrible that I'd done anything. How could this happen?"

Mr Yardley fell short of explicitly stating that his actions had directly led to his brothers' (sic) death and this clearly remains a difficult concept for him to openly acknowledge. He did say:

“Looking back, I should have walked away. Should have left the situation and done things for myself".

80. Section 21A(3)(i) of the Sentencing Act provides that remorse shown by an offender is a mitigating factor to be taken into account in determining sentence, but only if:

1. the offender has provided evidence that he or she has accepted responsibility for his or her actions; and

2. the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

81. The sentencing judge concluded [63] that there “may be some merit" in the submission which had been made by the Crown that there was insufficient evidence of genuine remorse for the purposes of section 21A(3)(i). However, having made that observation his Honour concluded that what the respondent had said to Dr Sheehan was “some evidence of his contrition".

    63. ROS 17.

82. I respectfully disagree with that conclusion. Regret for offending on the one hand, and genuine remorse for offending on the other, are two completely different concepts. The primary distinction between the two is that remorse involves accepting responsibility. What the respondent said to Dr Sheehan was an expression of regret, not an expression of genuine remorse. It did not, in my view, amount to evidence that the respondent had accepted any responsibility for his actions at all. Whilst giving sworn evidence in sentence proceedings is not a prerequisite to a finding that an offender is genuinely remorseful,[64] the fact that the respondent chose not to give evidence necessarily means that this Court may give less weight to his assertions of remorse to Dr Sheehan. [65] In all of the circumstances I am not satisfied on the balance of probabilities that the respondent is genuinely remorseful for his offending. I am fortified in that view by the fact that the respondent said that the deceased had “deserved it” in circumstances where he must have been aware of the fact that his actions had caused the respondent significant injury. Such a comment is antithetical to genuine remorse, and acceptance of responsibility for one’s actions. I am further fortified in that view by the respondent’s repeated attempts to ascribe blame to the deceased in the course of his interview with police.

    64. Butters v R [2010] NSWCCA 1 at [17] per Fullerton J (McClellan CJ at CL and McCallum J agreeing).

    65. Pfitzner v R [2010] NSWCCA 314 at [33] per McClellan CJ at CL (Hislop and Price JJ agreeing).

83. An assessment of the respondent’s prospects of rehabilitation is difficult in the absence of evidence specifically addressing that question. However, the respondent has a limited criminal history and there is an inference available from the report of Dr Sheehan that he may be assisted to some degree by undertaking one or more specified courses. In these circumstances, I would consider the respondent’s prospects of rehabilitation to be more favourable than not, although that is necessarily a guarded assessment. Whilst I accept that specific deterrence has a limited role to play in determining an appropriate sentence, that is not the position in terms of general deterrence. As I have already observed, this offending was an episode of domestic violence. Any sentence imposed must operate as a deterrent to those who might otherwise be minded to offend in this way.

84. I have previously noted the timing of the respondent's plea of guilty. A discount of 10% should be applied to reflect the utilitarian value of that plea.

85. Finally, I turn to a consideration of special circumstances. The respondent’s subjective case is essentially confined to the matters set out in the report of Dr Sheehan who assessed what he described as “mild elevations" on various personality scales. [66] Dr Sheehan also concluded that “the overall constellation of scores is consistent with (the respondent’s) presentation, suggesting compromised personality functioning, mood dysregulation, substance abuse and high levels of current stress". [67]

    66. At [28].

    67. At [29].

86. However, it is important to emphasise that Dr Sheehan also recorded that the respondent’s testing revealed “a tendency towards self-debasement that may have resulted in over-inflation of his disorders". It was these disorders which led him to recommend that the respondent undertake institutional programs[68] and which, in turn, formed the basis of the conclusion reached by the sentencing judge that special circumstances had been made out.

    68. At [32].

87. Before this Court, the Crown conceded that a finding of special circumstances which was made by the sentencing judge was open. At the same time, the Crown described that finding (as distinct from the variation in the ratio which was applied as a result of it) as “generous". In my view, there was a degree of inconsistency in the position adopted by the Crown in respect of this issue. The evidence either supported a finding of special circumstances, or it did not.

88. The Crown's concession does not bind this Court. In my view, the evidence does not support a finding of special circumstances. For the reasons I have already expressed, the respondent’s age, and the fact that it his first time in custody, do not warrant such a finding, and nothing said by Dr Sheehan squarely addressed the issue of whether the respondent would benefit from a longer period on parole. This is not a case in which the circumstances are sufficiently special to justify a variation in the statutory ratio between the non-parole period and the total sentence. [69]

    69. R v Fidow [2004] NSWCCA 172 at [22] per Spigelman CJ (R S Hulme and Adams JJ agreeing).

ORDERS

89. I propose the following orders:

1. The Crown appeal is allowed.

2. The sentence imposed by Acting Judge Conlon SC in the District Court of New South Wales is quashed.

3. In lieu thereof, the respondent is sentenced to a non-parole period of 4 years and 9 months imprisonment commencing on 19 July 2019 and expiring on 18 April 2024.

4. An additional term of 1 year and 7 months imprisonment is imposed commencing on 19 April 2024 and expiring on 18 November 2025.

90. LONERGAN J: I have had the benefit of reading the judgment of Bellew J in draft, and the additional remarks of Meagher JA.

91. I agree with Bellew J, for the reasons stated by him particularly at [71], that this Court should not decline to intervene.

92. I agree with the additional remarks of Meagher JA.

93. I agree with the sentence and the orders proposed by Bellew J.

**********

Endnotes

Decision last updated: 20 December 2019