R v ES (No 2) [2018] NSWSC 1708

R v ES (No 2) [2018] NSWSC 1708

The offender's manslaughter was in the lower range of objective seriousness for manslaughter by a parent against an infant child, but remained serious because a vulnerable baby was killed and the shaking involved force. The offender's PTSD, traumatic history, remorse, lack of Australian prior convictions, onerous custody and guilty plea mitigated sentence and reduced moral culpability, but the Form 1 bruising offence meant the conduct was not wholly isolated and personal deterrence required some weight. Deportation did not affect sentence structure. A sentence of 8 years imprisonment with a 5 year non-parole period, backdated to the offender's arrest, was appropriate.

Jurisdiction
Australia
Judgment Date
09 November 2018
Procedural Posture
Criminal Sentence / Sentencing Following Guilty Plea to Manslaughter by Dangerous and Unlawful Act, With a Form 1 Offence of Assault Occasioning Actual Bodily Harm Taken Into Account
Outcome
Offender convicted of the unlawful killing of Liana and sentenced to imprisonment for 8 years with a non-parole period of 5 years.
Legal Topics
['manslaughter by Dangerous and Unlawful Act' 'unlawful Killing of Infant Child' 'assault Occasioning Actual Bodily Harm' 'use of Psychiatric and Psychological Reports Where Offender Did Not Give Evidence' 'post Traumatic Stress Disorder and Moral Culpability' 'guilty Plea Discount' 'form 1 Offences' 'possibility of Deportation' 'victim Impact Statement']
['criminal Law' 'sentencing'] ['manslaughter by Dangerous and Unlawful Act' 'unlawful Killing of Infant Child' 'assault Occasioning Actual Bodily Harm' 'use of Psychiatric and Psychological Reports Where Offender Did Not Give Evidence' 'post Traumatic Stress Disorder and Moral Culpability' 'guilty Plea Discount' 'form 1 Offences' 'possibility of Deportation' 'victim Impact Statement']

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Procedural Posture

Criminal Sentence / Sentencing Following Guilty Plea to Manslaughter by Dangerous and Unlawful Act, With a Form 1 Offence of Assault Occasioning Actual Bodily Harm Taken Into Account

Legal Issues

  1. 1 ["What sentence should be imposed for the offender's manslaughter of his infant daughter by shaking her." "What weight should be given to psychiatric and psychological reports based on the offender's untested history where the offender did not give evidence." "How the offender's PTSD, personal history, remorse, onerous custody, lack of prior convictions and guilty plea should affect sentence." 'How the Form 1 offence of assault occasioning actual bodily harm should be taken into account.' 'Whether the possibility of deportation was relevant to the sentence structure or mitigation.' 'Whether special circumstances justified departure from the statutory ratio between the non-parole period and balance of term.']

Ratio Decidendi

The offender's manslaughter was in the lower range of objective seriousness for manslaughter by a parent against an infant child, but remained serious because a vulnerable baby was killed and the shaking involved force. The offender's PTSD, traumatic history, remorse, lack of Australian prior convictions, onerous custody and guilty plea mitigated sentence and reduced moral culpability, but the Form 1 bruising offence meant the conduct was not wholly isolated and personal deterrence required some weight. Deportation did not affect sentence structure. A sentence of 8 years imprisonment with a 5 year non-parole period, backdated to the offender's arrest, was appropriate.

Court Disposition

Offender convicted of the unlawful killing of Liana and sentenced to imprisonment for 8 years with a non-parole period of 5 years.

Orders

  • ['For the unlawful killing of Liana, ES is convicted.' 'The offender is sentenced to a term of imprisonment for 8 years.' 'The non-parole period is 5 years commencing on 14 November 2015 and expiring on 13 November 2020.' 'The balance of term is 3 years expiring on 13 November 2023.' 'The first date on which the...