ES v R [2019] NSWCCA 262

ES v R [2019] NSWCCA 262

The sentencing judge's finding that the Form 1 offending took the case slightly outside a wholly isolated loss of control was open, the Bugmy argument was not raised below and lacked an evidentiary foundation of profound childhood deprivation, the 12% utilitarian discount was open given the late plea and the judge was not bound by the parties' ranges, no procedural unfairness arose because the judge gave no indication that she would adopt a discount within any range, and the overall sentence was not manifestly excessive having regard to the seriousness of the manslaughter, the defenceless victim, the maximum penalty and the mitigating findings.

Jurisdiction
Australia
Judgment Date
01 November 2019
Procedural Posture
Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['manslaughter' 'assault Occasioning Actual Bodily Harm Taken Into Account on Form 1' 'guilty Plea Discount' 'procedural Fairness' 'manifest Excess' 'personal Deterrence' 'disadvantaged Upbringing and Ptsd']
['criminal Law' 'sentencing'] ['manslaughter' 'assault Occasioning Actual Bodily Harm Taken Into Account on Form 1' 'guilty Plea Discount' 'procedural Fairness' 'manifest Excess' 'personal Deterrence' 'disadvantaged Upbringing and Ptsd']

Case Brief

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Procedural Posture

Criminal Sentencing Appeal / Application for Leave to Appeal Against Sentence in the Court of Criminal Appeal

Legal Issues

  1. 1 ['Whether the sentencing judge erred in finding that the offending was not a wholly isolated loss of control and in giving personal deterrence some weight.' "Whether the sentencing judge failed to take into account, or gave insufficient weight to, the applicant's disadvantaged upbringing as reducing moral culpability." 'Whether the sentencing judge erred in imposing a 12% discount for the utilitarian value of the guilty plea.' 'Whether the applicant was denied procedural fairness because the sentencing judge did not alert him to the possibility of a discount below the range contended for by the parties.' "Whether the sentence of eight years' imprisonment with a non-parole period of five years was manifestly excessive."]

Ratio Decidendi

The sentencing judge's finding that the Form 1 offending took the case slightly outside a wholly isolated loss of control was open, the Bugmy argument was not raised below and lacked an evidentiary foundation of profound childhood deprivation, the 12% utilitarian discount was open given the late plea and the judge was not bound by the parties' ranges, no procedural unfairness arose because the judge gave no indication that she would adopt a discount within any range, and the overall sentence was not manifestly excessive having regard to the seriousness of the manslaughter, the defenceless victim, the maximum penalty and the mitigating findings.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']