Chandler v R

Background

1. On 7 April 2017, the applicant was arraigned in the Supreme Court on a charge of murdering Tateolena Tauaifaga [1] and, in the alternative, manslaughter. He pleaded not guilty to each charge. His trial was fixed to commence on 30 October 2017. An order was made that he be tried by judge alone.
2. On 20 October 2017, the applicant was arraigned again. He pleaded guilty to the offence of manslaughter which the Crown accepted in full discharge of the indictment.
3. On 14 December 2017, Johnson J sentenced the applicant to imprisonment for 19 years commencing on 12 August 2017 and expiring on 11 August 2036 with a non-parole period of 13 years commencing on 12 August 2017 and expiring on 11 August 2030 (R v Chandler (No 2) [2017] NSWSC 1758; (2017) 84 MVR 399) ("Chandler").
4. At the applicant's request, his Honour took into account three offences included in a notice filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (a "Form 1" and the "Sentencing Act" respectively) namely, that on 8 January 2015 he: took and drove a motor vehicle without the consent of the owner contrary to s 154A(1)(a) of the Crimes Act 1900 (NSW); drove that motor vehicle on a road having never been licensed for that purpose contrary to s 53(3) of the Road Transport Act 2013 (NSW); and, whilst driving that vehicle and knowing police officers were in pursuit, did not stop and then drove the vehicle in a manner dangerous to others contrary to s 51B(1) of the Crimes Act 1900.

Extension of Time

1. Within a week of being sentenced, a Notice of Intention to Appeal was filed on behalf of the applicant. However, the notice has long since expired. The present application was not filed until 23 February 2022, being more than four years after he was sentenced. Accordingly, the applicant requires an extension of time in which to bring this application.
2. The applicant's solicitor swore an affidavit on 22 February 2022 in support of the application for an extension of time. He stated that in May 2018 he received a grant of Legal Aid to obtain an advice from Counsel as to the merit of the appeal. Counsel was briefed to advise in August 2018. However, he stated that "[o]n instructions", the obtaining of that advice was suspended pending a Coronial Inquest into the death of Tateolena. Why that occurred is not clear, although it appears that it was anticipated the inquest might yield evidence casting doubt on whether she was struck by the vehicle driven by the applicant or the pursuing police.
3. In October 2020 the applicant withdrew his instructions and did not reinstate them until "mid-2021". Counsel sought further information which was not received until December 2021. Counsel provided his advice in January 2022.
4. In one sense the affidavit "explains" the delay in the bringing of this application but it in no way justifies it. An unacceptable delay of over four years in the bringing of an appeal against sentence, especially one concerning the death of a child, has the potential to undermine public confidence in the system of criminal justice. However, given that at least some of the grounds of appeal are reasonably arguable, the length of the sentence imposed and the relative youth of the applicant, it is best that the application be dealt with on its merits. I would allow the application to extend time.

The Offences

1. The sentencing judge made comprehensive findings of fact concerning the subject offences. None of those findings are the subject of challenge. The following is taken from his Honour's findings.
2. As at the date of the offending, ie, 8 January 2015, the applicant was 22 years of age. On 16 July 2014, he was granted bail by the Supreme Court on various unrelated charges, including aggravated breaking and entering with intent to commit a serious indictable offence, taking or detaining a person whilst in company with the intention of obtaining an advantage, stealing a motor vehicle and receiving stolen property.
3. From 11 December 2014, the applicant ceased complying with the reporting conditions attached to his grant of bail. In his evidence before the sentencing judge, the offender agreed that he may have stopped reporting because he was intoxicated with drugs. The sentencing judge found that the applicant had consumed "ice" on 7 January 2015 and that this contributed to him being "on edge" the following day.
4. On 7 January 2015, an Audi sedan was stolen from Kensington. Around midday the following day, police observed the vehicle parked in the vicinity of Sherwood Street, Constitution Hill. Soon after they observed it being driven by the applicant with a female, Katie Tuite, occupying the front passenger seat. The applicant then drove the vehicle to Wentworthville. The applicant parked the car. He and Ms Tuite entered a shopping centre. While they were inside, the police installed a global positioning surveillance device on the Audi vehicle. The taking and driving of the Audi vehicle was the basis for the offence under s 154A(1)(a) of the Crimes Act included on the Form 1.
5. At around 7.00 pm on 8 January 2015, the Audi vehicle was parked in Bessbrook Way, Constitution Hill. The sentencing judge described it as "a small and narrow dead-end street". The applicant had previously lived with his family nearby. The sentencing judge found that he was familiar with the area, including the house at 5 Bessbrook Way, and specifically knew that "[i]t was common, at times when the house was vacant, for people to use the backyard of 5 Bessbrook Way as a thoroughfare between Richill Park and Bessbrook Way."
6. As the Audi vehicle was stationary, police decided to apprehend the applicant. A number of police vehicles entered Bessbrook Way, including two "Toyota LandCruiser" 4WD vehicles containing members of the NSW Police Tactical Operations Unit ("TOU") along with two highway patrol vehicles.

The Sentencing Judgment

1. After setting out the facts of the offences, his Honour addressed the evidence concerning the applicant's subjective case and the various sentencing factors. At this point it suffices to note the following eight matters about his Honour's findings. Except where noted, the following findings are not challenged.
2. First, his Honour carefully addressed the applicant's dysfunctional upbringing and mental health issues. The applicant was raised by and close to his mother, who died when he was 16 years old. By that time, he was abusing alcohol and drugs. His education was significantly disrupted, however he completed Year 10. He had "no appreciable period of paid employment". A forensic psychologist noted that the applicant had been exposed to "antisocial influences from an early age". It was accepted that "[h]is early formative experiences led him to believe that unemployment, uncontrolled substance use, violence and crime were a normal part of life." The applicant had also experienced psychotic symptoms in the context of heavy substance abuse, although his "present diagnosis" at the time of sentencing "include[d] major depressive disorder".
3. The degree of disadvantage experienced by the applicant was eloquently summarised by his counsel, Mr McLachlan, at the hearing of this appeal. He noted that the evidence demonstrated that the applicant first became acquainted with his father when they shared a prison cell together.
4. Second, his Honour described the applicant's "substantial criminal history". This included offences committed on 21 April 2007 when the applicant was aged 14, namely, taking and driving a vehicle without the consent of the owner and driving in a dangerous manner. The applicant stole a motor vehicle and drove at 100 km/hour while being chased by police. He committed almost identical offences on 24 April 2007 and then again on 12 May 2007. The last of these offences involved the applicant driving at high speed through a grass reserve which was adjacent to a Housing Commission estate to avoid the police. He later collided with a police car. He committed similar offences in August 2009 and November 2010. Beyond these offences, the applicant accumulated other serious convictions including several instances of aggravated breaking and entering and assault occasioning actual bodily harm.
5. In August 2012, the applicant was sentenced to a term of imprisonment for 2 years and 7 months commencing on 5 May 2011 with a non-parole period of 17 months that expired on 4 October 2012. He was arrested on 13 March 2013 for aggravated breaking and entering with intent to commit a serious indictable offence, taking and detaining a person while in company with the intention of obtaining an advantage, stealing a motor vehicle and receiving stolen property. As noted, he was released on bail for those offence on 16 July 2014. Following his conviction on those offences after a trial, the applicant was sentenced on 26 February 2016 to 11 years imprisonment commencing on 12 August 2013 with a non-parole period of 7 years and 3 months expiring on 11 November 2020.

Ground 1: Objective Seriousness of Manslaughter

1. Ground 1 of the notice of appeal contends as follows: "In considering the objective seriousness of the manslaughter count, his Honour erred in characterising the offence as: (a) being 'at the gravest end of the spectrum' of involuntary manslaughter; and/or (b) representing unlawful and dangerous manslaughter 'of the gravest type'."
2. The findings referable to this ground of appeal are set out above. No point was taken that one finding refers to "involuntary manslaughter" and another to "unlawful and dangerous manslaughter". The agreed statement of facts provided to the sentencing judge specified that the applicant's plea to manslaughter was on the basis that his driving was an unlawful and dangerous act.
3. The submissions in support of this ground contend that the above findings by his Honour reveal error on the part of the sentencing judge for two, possibly related, reasons. First, it is contended that these findings were not relevantly different to a finding that an offence is "within the worst category" which was addressed in R v Kilic (2016) 250 CLR 256; [2016] HCA 48 ("Kilic"). Second, the submissions contend that the nature and circumstances of the manslaughter offence were not so serious as to justify his Honour's characterisation.
4. In Kilic, at first instance the offender received a lengthy, but not the maximum, sentence for dousing his pregnant partner with petrol and setting her alight. She suffered extensive burns that caused her to lose her baby and required ongoing medical and mental health care. On appeal, the Victorian Court of Appeal described the offence as being within the "worst category" for offences of its type but nevertheless concluded that the sentence imposed was manifestly excessive having regard to sentences imposed in other serious cases of that kind. The High Court found that the Court of Appeal erred in "impermissibly treat[ing] the sentences imposed in those few [other cases] as defining the sentencing range and, on that basis, conclud[ing] that, because the sentence imposed in [the instant] case exceeded the sentences imposed in all but one of the cases referred to, the sentence was beyond the range of available sentences" (at [24]).
5. Their Honours also commented on the Court of Appeal's statement that the offence fell "within the worst category" (at [18] to [19]): "What is meant by an offence falling within the 'worst category' of the offence is that it is an instance of the offence which is so grave that it warrants the imposition of the maximum prescribed penalty for that offence. Both the nature of the crime and the circumstances of the criminal are considered in determining whether the case is of the worst type. Once it is recognised that an offence falls within the 'worst category', it is beside the point that it may be possible to conceive of an even worse instance of the offence. Thus, an offence may be assessed as so grave as to warrant the maximum prescribed penalty notwithstanding that it is possible to imagine an even worse instance of the offence. Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty − as the offending was agreed to be here − a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called. It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being 'within the worst category'. It is a practice which should be avoided." (emphasis added)

Ground 2: Discount for the Plea

1. Ground 2 of the appeal contends that his Honour erred in only allowing a discount of 5% for the applicant's plea of guilty.
2. The timing of the applicant's plea of guilty is described above. The proceedings at first instance predate the insertion of Division 1A of Part 3 into the Sentencing Act. The sentencing judge rejected a submission that the timing of the plea was justified by the late service of an expert report by the Crown which demonstrated that it was the applicant's vehicle which fatally struck Tateolena. His Honour noted that the applicant's culpability for manslaughter was not dependent on "which vehicle struck the child". His Honour concluded that the "utilitarian value of the Offender's very late plea of guilty to manslaughter [was] limited".
3. One of the guidelines enunciated by Spigelman CJ in R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [160] ("Thomson") was that "[t]he utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 per cent discount on sentence", with the "primary consideration determining where in the range a particular case should fall, [being] the timing of the plea" (emphasis added). Earlier his Honour noted that a "discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial" (at [155]), although "[i]n some cases no discount is appropriate at all" (at [156]). That said, these observations are only "a guideline … [and] create no presumption nor entitlement to a particular discount to reflect the utilitarian value of an offender's plea of guilty" (Hallak v R [2014] NSWCCA 48 at [22]; "Hallak"). The determination of the level of discount to be afforded remains a matter for the sentencing judge's discretion (Hallak at [17]; Thomson at [10] and [72]).
4. In Hallak, this Court did not interfere with a discount of 5% which was applied when the offender pleaded guilty on the day the trial was due to commence (at [2] to [3]). The same conclusion was reached in Martinez v R [2022] NSWCCA 12 ("Martinez"), where this Court rejected a contention that a sentencing judge erred in only affording a discount of 5% to an offender who offered to plead guilty to manslaughter shortly prior to a retrial where he was found guilty of that offence. In Martinez, I observed that (at [71]): "The various cases … illustrate that the discount usually afforded to a plea offer of the kind made here on the day before the trial commences, is 10%. However, they do not demonstrate that affording a discount of 5% was somehow erroneous either as a matter of principle, unreasonable, unjust or otherwise "not open". It is an especially difficult task for this Court to second guess the assessment of the lost utilitarian value of a plea offer made by the judge who actually conducted the trial."

Ground 3: Bugmy, Mental Illness and Youth

1. Ground 3 of the notice of appeal provides: "His Honour erred in failing to give any weight, or any proper weight, to: (a) the principles in Bugmy; (b) the applicant's mental illness; and/or (c) the applicant's youth."
2. To address these contentions, it is necessary to restate certain aspects of the sentencing judgment and decribe its structure. In a section of the judgment entitled "The Offender's Dysfunctional Upbringing", the sentencing judge discussed the applicant's upbringing, education and mental health in detail. In relation to the latter, his Honour noted that the applicant "has been diagnosed at different times with ADHD, schizophrenia, bipolar disorder, schizoaffective disorder and drug-induced psychosis" and that his "present diagnosis …. includes major depressive disorder and antisocial personality disorder". In the same part of the judgment, his Honour referred to the applicant's age and personal circumstances.
3. Later in the sentencing judgment, his Honour discussed the significance of these matters to the sentencing process as follows: "I accept that the Offender's moral culpability is modified to an extent by application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Ohanian v R [2017] NSWCCA 268. The Offender has a dysfunctional background which has operated to a degree to compromise his capacity to mature and learn from experience. It is necessary to have regard to these considerations in undertaking the sentencing process in this case. At the same time, it is necessary to keep in mind the need for protection of the public in imposing sentence: Bugmy v The Queen at 595 [44]. Where the Offender has starkly exposed many members of the public to the risk of harm and one person to the reality of death, then these considerations are pertinent as well in the process of instinctive synthesis. ... The Offender's bleak history was summarised (accurately) by [his psychologist] Mr Sheehan in the following way: 'His background is of extreme deprivation and disadvantage in childhood, undermining his ability for suitable personality formation, emotional-regulation, stable attachment and socialisation. Severe behavioural disturbance emerged in childhood and despite external (medication and counselling) intervention, his domestic milieu was so damaging that his adjustment only worsened into adolescence, further aggravated by polysubstance use disorder and then the sudden loss of his mother when aged 16 years. He has engaged in a nihilistic lifestyle involving criminality in adolescence and early adulthood, with no understanding of how to go about navigating community life in a positive way, learning to manage his own unstable affect with substance use. In this way he has followed the sad example set for him in his childhood environment. He acknowledges the index offence in a way that suggests that he appreciates the terrible gravity of the loss, but is at this stage unable to withstand the psychological burden.' … At the same time, the Court is required to take into account the Offender's dysfunctional upbringing and compromised moral culpability on issues including personal and general deterrence, whilst at the same time keeping in mind the powerful need for protection of the community. ... I have regard, as well, to the need for personal and general deterrence to be reflected in the sentence. Some modification is required in this respect by operation of the principles in Bugmy v The Queen."

Ground 4: Manifest Excess

1. Ground 4 contends that the sentence imposed by his Honour was manifestly excessive.
2. Appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]) ("Wong"). Instead, it is only warranted "where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons" (Wong at [58]).
3. In support of this ground the applicant relied on submissions made in relation to grounds 1 to 3. The applicant placed particular emphasis on his dysfunctional upbringing, mental health issue and relative youth. The applicant noted the various findings of the sentencing judge, including that his Honour accepted the applicant had "some insight" into the enormity of his crime and that he "accepted responsibility" for his crime. The applicant also pointed to the overall length of time the applicant would serve in custody, being an effective sentence of 23 years imprisonment from 12 August 2013 with an effective non-parole period of 17 years. The Crown's submissions pointed to the appalling circumstances of the manslaughter offence including its aggravating factors, the Form 1 offences, the lateness of the plea and the applicant's poor criminal record.
4. Both parties undertook an analysis of what were said to be comparative cases of manslaughter involving the use of a motor vehicle that were contended to either demonstrate, or negate, the proposition that the sentence in this case was manifestly excessive. Most, if not all, of the potentially relevant decisions concerning vehicular manslaughters were reviewed by N Adams J in Davidson v R [2022] NSWCCA 153 at [246] ("Davidson"). I will not repeat that analysis, but simply note some of the cases referred to that involved a relatively high level of objective seriousness.
5. In Spark v R [2012] NSWCCA 140 ("Spark"), this Court dismissed an appeal against a sentence for two counts of manslaughter said to be manifestly excessive. The offender was driving while experiencing withdrawal from methylamphetamine and amphetamines. He had never held a driver's licence and was on parole for car theft. He engaged in a lengthy police pursuit, driving erratically and at high speed. He eventually crossed to the opposite side of the road and collided with an oncoming car, killing the driver and her 18-year-old daughter (at [15] to [16]). The offender was aged 23. He had a lengthy criminal record (at [25]). The sentencing judge declined to find that he had good prospects of rehabilitation (at [30]). Prior to any discount for his pleas of guilty, the offender received head sentences of 16 years and 8 months imprisonment and 18 years imprisonment respectively.

Proposed Orders

1. I propose the following orders: (1) Extend the time in which the applicant may apply for leave to appeal against sentence up to and including 23 February 2022; (2) Grant leave to appeal against sentence; and (3) Appeal dismissed.
2. HAMILL J: I have read the draft reasons of Beech-Jones CJ at CL and those of N Adams J. I am grateful to their Honours for their comprehensive analysis of the facts and circumstances giving rise to this difficult and troubling application. With some hesitation, I agree that grounds 1, 2 and 3 are not established given the thorough reasons of the sentencing Judge. As to ground 4 and the ultimate disposition of the application, I agree with the orders proposed by N Adams J and with her Honour's reasons for favouring those orders. I would only add the following brief observations, none of which is inconsistent with what her Honour has written.
3. Like N Adams J, I recently undertook a thorough review of sentences imposed in cases that fall within the high range of objective seriousness for this kind of offending: Moananu v R [2022] NSWCCA 85; (2022) 99 MVR 331 at [140]-[161]; see also the analysis undertaken by Leeming JA at [11]-[27]. I have re-visited the so-called comparable cases, understanding the limitations of such a review and with the benefit of the analyses undertaken by each of the Judges who sat on the appeal in Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336 and those of my colleagues in the present application.
4. This review and re-consideration of the sentencing patterns disclosed in previous cases leaves me in no doubt of the correctness of the conclusion reached by N Adams J: the sentence imposed on Mr Chandler is manifestly excessive. That conclusion is consistent with my intuitive response to the sentence bearing in mind the grave objective criminality and the applicant's individual circumstances.
5. I reach that conclusion giving full allowance to the broad discretion entrusted in a sentencing Judge, the requirement that a ground of appeal framed in the terms of Ground 4 requires a conclusion that the sentence under review is plainly wrong or unjust, and the important caveat that this Court cannot intervene merely because its members may have "taken a different course" in exercising the sentencing discretion: House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40.

Other manslaughter sentences

1. In Davidson v R my examination of other manslaughter cases revealed that only one manslaughter case since JIRS statistics has been held to be in the worst category such as to warrant the maximum penalty: Clare v R. I have recounted the details of that case in [275]-[276] of Davidson v R and do not consider it necessary to repeat it here. There can be no doubt that it was significantly worse than the present case and warranted a finding of "worst category".
2. Although the Crown submitted in the present case that the applicant's offence lay "within the worst category of the crime of manslaughter" the sentencing judge did not ultimately so find. Rather, his Honour found (at [96]) that he was "well satisfied that this offence of manslaughter is at the gravest end of the spectrum of crimes of involuntary manslaughter". Accordingly, any comparison must exclude those (rare) cases where the maximum penalty was imposed because the offence was found to be in the "worst category": R v Kilic (2016) 250 CLR 256; [2016] HCA 48.
3. Turning to manslaughter cases not in the "worst category", as I observed in Davidson v R at [280], the highest head sentence imposed for one count of manslaughter is 21 years and 7 months. That was R v Camilleri [2021] NSWSC 221, a decision which is currently under appeal. I described that case in Davidson v R at [281]-[282] as follows: "In Camilerri, Wilson J at [1] described the offending as 'one of the most serious instances of manslaughter it is possible for any imagination to conjure'. A daughter stabbed her mother to death in a frenzy decapitating her. On a trial for murder, she was found guilty by a jury of manslaughter on the basis of a partial defence of substantial impairment. At [106]-[107], Wilson J assessed the offender's prospects of rehabilitation as 'very limited' and stated that 'the possibility of a violent outburst … looms large' such that '[t]he protection of the community must be a significant consideration'. A discount of 10% was applied to the sentence to account for the offender's plea of guilty to manslaughter prior to trial (meaning that starting point for the sentence was 24 years)."
4. Having regard to the JIRS statistics for the period from 24 September 2018-30 June 2022, a total of 108 sentences were handed down for the offence of manslaughter, irrespective of whether the offender had entered a plea; committed multiple offences, including those taken into account on a Form 1; or had a prior criminal record. From those 108 cases, the next four most severe sentences indicated for the offence of manslaughter (after R v Camilleri) were as follows: 1. R v DF [2022] NSWSC 762: 14 years and 3 months' imprisonment (applying a 5% discount for a late plea of guilty). The offender assaulted her son, who was aged 2 years and 5 months, inflicting multiple blunt force injuries that caused his death. Her 6-year-old son witnessed the assault. The offender did not take her son to the hospital until two hours later. The sentencing judge found that the offender's moral culpability was significant, and the objective seriousness was well above the mid-range; 2. Tabbah v R [2019] NSWCCA 324: 13 years' imprisonment (an appeal from the initial sentence of 14 years' imprisonment was allowed). The offender and a co-offender broke into the deceased's home at 1.40am and shot him at close range before fleeing. The deceased's two younger daughters, girlfriend, mother and two teenage nephews were home. He was convicted after trial. This court held that the offender's moral culpability was substantial; 3. Magro v R [2020] NSWCCA 25: 12 years and 7 months' imprisonment (applying a 20% discount for his offer to plead guilty). An appeal from an aggregate sentence which included an initial indicative sentence of 15 years and 3 months' imprisonment was allowed. The offender shot the deceased in the neck at close range following a series of fights and retaliations in preceding days; this court upheld the sentencing judge's finding that the offender's moral culpability was high; 4. Paterson v R [2021] NSWCCA 273: 12 years' imprisonment (accounting for a 25% discount for a plea of guilty; an appeal from the initial sentence of 16 years and 6 months' imprisonment was allowed on the ground of manifest excess). The deceased was a stranger to the offender who drunkenly verbally abused him. The co-offender punched the deceased and the offender kicked him to the head and stomped on his head. He then left him on the side of the road where he was subsequently hit and killed by a car. The offender was on parole for an offence of recklessly causing grievous bodily harm which had "striking similarities" to this offence. The offender had a long history of depression, a childhood of physical abuse and suffered from ADHD which was thought to at least partially explain his conduct.

Other serious vehicular manslaughter cases

1. The applicant's undiscounted sentence of 20 years' imprisonment is higher than any of the vehicular manslaughter sentences I considered in Davidson v R including Spark v R [2012] NSWCCA 140 and Crowley v R [2021] NSWCCA 45 referred to by Beech-Jones CJ at CL at [71]-[72], which included multiple deaths.
2. The facts in Davidson v R itself were shocking. The offender's grossly negligent driving resulted in the deaths of four children and injuries to three others. Mr Davidson had driven at very high speeds whilst grossly intoxicated for about 5 km in a manner of driving described at times as "menacing". He lost control of his vehicle and crashed into a fence killing four young children walking by at the time and injuring three others. The starting point for each of Mr Davidson's manslaughter charges (before a discount of 25% for the guilty plea) was an indicative sentence of 19 years' imprisonment, only slightly less than in the present case. The original aggregate sentence of 28 years with a non parole period of 21 years was reduced (by majority) to an aggregate sentence of 20 years' imprisonment with a non parole period of 15 years' imprisonment.
3. Without wishing to detract in any way from the very serious driving in Mr Davidson's case, and cognisant of the fact that no two cases can ever be seen as truly comparable, I am satisfied that the circumstances of the applicant's driving are worse than Mr Davidson's. Furthermore, Mr Davidson was of good character, was always gainfully employed, suffered from ADHD, had engaged in charity work, was genuinely remorseful, had excellent prospects of rehabilitation and was unlikely to re-offend. Mr Davidson received an aggregate sentence slightly longer than Mr Chandler because his actions caused the death of four children and injured three others.
4. In having regard to this "range" of sentences imposed in "comparable cases", I have had regard to what Simpson J (as her Honour then was) said about a "range" in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[304]: "A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases … the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned: Wong v The Queen (at [59])."

Reckless indifference murder sentences

1. The applicant was originally charged with murder, presumably based on reckless indifference to human life. As Johnson J observed in his sentencing reasons at [90]: "It is necessary to keep in mind the distinction between manslaughter and murder by reckless indifference to human life - where, at the time the accused person committed the act causing death, he or she foresaw or realised that the act would probably cause the death of a person but the accused continued to commit the act regardless of that consequence: The Queen v Crabbe (1985) 156 CLR 464; [1985] HCA 22 at 469-470."
2. The mental element for murder by reckless indifference to human life is whether an offender realised that the act causing death (in the present case, driving a vehicle through a fence into a suburban backyard) would probably cause the death of a person and continued regardless of the consequence. When the Director accepted a plea of guilty from the applicant to manslaughter by unlawful and dangerous act in full satisfaction of the indictment, the mental element for that offence was whether the death was caused by an "unlawful and dangerous act". It is well established that an act is dangerous if, viewed objectively, it carries with it an appreciable risk of serious injury; that is, that a reasonable person would have realised that it did.
3. At the proceedings on sentence the Crown invited the sentencing judge to make a finding in this case that the applicant (and not just a reasonable person) realised that his act of driving through the fence and into the backyard exposed another person or persons to an appreciable risk of serious injury and drove through regardless. This is a finding that brings the case precariously close to the murder charge that the Crown withdrew.
4. Given how close such a test is to that for murder by reckless indifference to life, Johnson J was careful to ensure that he did not err by sentencing the applicant on the mental element for murder rather than manslaughter, observing this at [92]: "I keep in mind the distinction between manslaughter and murder by reckless indifference to human life (see [89]-[90] above). The issue here is whether the Court should be satisfied beyond reasonable doubt that the Offender himself realised, at the time he drove through the fence, that his actions exposed another person to an appreciable risk of serious injury. The question is not whether he foresaw or realised that the act would probably cause death but continued with it anyway."

Subjective case

1. As against the applicant's criminal history, poor prospects of rehabilitation and high risk of re-offending, he was still relatively young, had had a tragically dysfunctional upbringing and had mental health issues. In addition, he was enduring onerous custodial conditions given the nature of his crime (killing a child).
2. Ground 3 contended error in the failure of the sentencing judge to give weight or "proper weight" to the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37, the applicant's mental illness, and/or the applicant's youth. I concurred with Beech-Jones CJ at CL that no patent error was established under that ground; the sentencing judge expressly stated that he had regard to those principles and found that the applicant's moral culpability was "compromised". This finding is consistent with what the High Court held in Bugmy (at [44]) when it observed that it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. The High Court went on to state that "[a]n offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced". The court went on to observe that "the inability to control the violent response to frustration may increase the importance of protecting the community from the offender."
3. The sentencing judge summarised the evidence of the applicant's deprived upbringing at [55]-[62] and his mental health history at [63] and [65] and concluded this: "I accept that the Offender's moral culpability is modified to an extent by application of the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Ohanian v R [2017] NSWCCA 268. The Offender has a dysfunctional background which has operated to a degree to compromise his capacity to mature and learn from experience. It is necessary to have regard to these considerations in undertaking the sentencing process in this case. At the same time, it is necessary to keep in mind the need for protection of the public in imposing sentence: Bugmy v The Queen at 595 [44]. Where the Offender has starkly exposed many members of the public to the risk of harm and one person to the reality of death, then these considerations are pertinent as well in the process of instinctive synthesis." (Emphasis added.)

Childhood disadvantage

1. The applicant was born in 1992. Juvenile Justice records report that his parents were in a relationship from the age of 11 years. The applicant's mother first became pregnant at 15 but the baby was stillborn because of physical abuse from the applicant's father. After the applicant was born and whilst she was pregnant with his younger brother, the applicant's mother terminated the relationship with the applicant's father due to domestic violence. She was 23 years old. The applicant's father escaped from custody to exact retribution for this and she was sexually assaulted and stabbed.
2. The applicant's father is Aboriginal, has a long-standing opiate dependency and has spent much of his life in prison. When he was out of prison the applicant did not acknowledge him, although coincidentally, they shared a prison cell during a previous sentence.
3. When the applicant was a child, his mother had various boyfriends who were violent towards her and the children. One of her early partners ran an amphetamine production business from the home. There were dangerous chemicals in large quantities of drugs in full view of the children. That partner would lock the applicant in his room for days. On another occasion police attended the caravan park where his family was living to arrest his mother's partner. The partner fled and was shot (albeit not fatally) by police. This was but one of many experiences in his early childhood which, as psychologist Patrick Sheehan opined, "consolidated his antisocial perception that police held malevolent motives".
4. His mother subsequently had two more sons with another partner. The four children were neglected. The records confirm that the family had "on and off" involvement with DOCS/FACS from 1998 with formal notifications of inadequate parental supervision, domestic violence, alcohol and other drug use by parents and emotional harm. The children were all made state wards when the applicant was nine years old, but they were returned to his mother when she detoxified. She quickly relapsed and the applicant's life "returned to a familiar pattern of chaos and disorder".
5. The applicant's mother had a poly substance use disorder and the applicant was exposed to a variety of drugs and drug paraphernalia in the family home from a very early age. His mother would share her cannabis with the applicant from the age of 11 years. The applicant described having no reliable way of knowing whether he would be fed or cared for. He would be moved spontaneously from one temporary location to another. He loved his mother, but she had a terrible temper and would often "flog" him uncontrollably for misbehaviour. In his evidence in court and the history provided to Mr Sheehan, the applicant described his relationship with his mother as being more like a sister as she set no boundaries for him.

Mental health

1. The applicant has been diagnosed over the years with ADHD, schizophrenia, bipolar disorder, schizoaffective disorder and drug induced psychosis. There is a family history of mental illness. His maternal uncle was diagnosed with schizophrenia and his maternal cousin has bipolar disorder.
2. The applicant was medicated heavily as a child and was seen frequently by staff at Westmead Hospital. The applicant told Mr Sheehan, "What could they do? Nothing. I was going back to the same place (his home) where all that shit was going on. The medication did nothing".
3. The applicant received close psychiatric care in Juvenile Justice. He was treated with the antipsychotic Risperidone in 2006. In 2007-2008 he was treated with lithium, mirtazapine, quetiapine Zoloft and acamprosate (for alcohol withdrawal). His antipsychotic medication was ceased in 2010. He has presented with psychiatric symptoms since then, but the general consensus of the experts is that this is the result of his use of ice rather than any underlying psychosis.
4. Mr Sheehan interviewed the applicant in February 2016 and then again on 13 November 2017. He described his mood as having undergone a clear deterioration during that time. He described the applicant as profoundly depressed with feelings of hopelessness, self-loathing, sleep disturbance, anhedonia, lack of motivation, desire for social isolation and persistent suicidal ideation. Much of the low mood is rooted in feelings of remorse, guilt and shame for his current offence. He is unable to accept the overwhelming magnitude of his wrongdoing (in taking the life of an innocent child through his recklessness). He suffers from a major depressive disorder with the possible differential diagnosis of adjustment disorder with mixed anxiety and depressed mood.

Expert evidence

1. Having regard to the applicant's extensive criminal history and other background information, Mr Sheehan's opinion was as follows: "Mr Chandler was exposed to antisocial influences from an early age in his local social milieu and in the family home. His early formative experiences led him to believe that unemployment, uncontrolled substance abuse, violence and crime were a normal part of life. He has associated almost exclusively with substance users and people who are regularly involved with the criminal justice system. With the exception of his grandmother, he has no nexus to conventional and responsible social groups in the community."
2. Mr Sheehan also stated this: "The extreme deprivation of Mr Chandler's childhood is consistent with disruption to personality formation. He exhibited severe conduct disorder from childhood, which has gone on to manifest as Antisocial Personality Disorder and adulthood. Borderline Personality traits are also indicated by Mr Chandler's unstable sense of self, transient feelings of intense despair and suicidality, and his general difficulty tolerating emotional discomfort. He is unskilled in how to live in a conventional functional manner and will require assistance to acquire these skills."
3. And further: "His background is of extreme deprivation and disadvantage in childhood, undermining his ability for suitable personality formation, emotional-regulation, stable attachment and socialisation. Severe behavioural disturbance emerged in childhood and despite external (medication and counselling) intervention his domestic milieu was so damaging that his adjustment only worsened into adolescence, further aggravated by polysubstance use disorder and then the sudden loss of his mother when aged 16 years. He was engaged in a nihilistic lifestyle involving criminality in adolescence and early adulthood, with no understanding of how to go about navigating community life in a positive way, learning to manage his own unstable affect with substance abuse. In this way he has followed the sad example set for him and his childhood environment. He acknowledges the index offence in a way that suggests that he appreciates the terrible gravity of the loss, but is at this stage unable to withstand the psychological burden."
4. In his evidence in court Mr Sheehan observed the following in response to questions from the applicant's then counsel: "Q. You have dealt with many individuals, offenders in the prison system who have suffered from terrible upbringings and in early lives no doubt, have you not? A. Sadly true. Q. This man's upbringing, this man's early years, how does that rate, if you can, in terms of the deprivation and the effects of that deprivation on him? A. Yes it is towards the upper end even amongst the peer group, who often have difficult childhoods, destructive childhoods, his is notable. The level of dysfunction and to be prescribed such serious medications during that phase of development, it is unusual." (Emphasis added]

Conclusion: ground 4

1. For these reasons, I would uphold ground 4. Despite the careful and detailed reasons of the sentencing judge, I am satisfied that the sentence imposed was manifestly excessive.

Re-sentence

1. The Crown relied upon an affidavit of Steven Thomson, the solicitor with the NSW Office of the Director of Public Prosecutions with carriage of the matter, dated 12 September 2022, in the event of re-sentence. That affidavit set out the applicant's custodial infringements since he was sentenced on 14 December 2017 until 30 August 2020. Those infringements included possess prohibited goods, assault, intimidation and fight/other physical combat. The last custodial infringement was on 30 August 2020. He has had no infringements in the last two and a half years.
2. The applicant's affidavit dated 9 September 2022 includes updated information as to how he has been progressing in custody since he was sentenced. He has completed the Positive Lifestyle Program and the Health Survival Course. He expressed that he was motivated to engage in programs and vocational training and has attempted to undertake additional drug rehabilitation programs while in custody, although he has been informed that he is not yet able to do so. He expressed to his case officer in September 2020 that he is willing to participate in the Restorative Justice Program.
3. The applicant has been a yard delegate at Goulburn Correctional Centre for about 14 months. He is given responsibility to raise issues on behalf of inmates in his yard and is invited to attend meetings with other yard delegates, senior staff, the head nurse and the Governor. The applicant has also been employed in the yard to provide labour to contractors, including on the Segregation Project. He described his life in custody as being more manageable when he is employed and given work as it gives him structure and routine. He has enrolled in TAFE programs and traineeships, including a Certificate II in Construction.
4. The applicant's time in custody during the Covid-19 pandemic was very difficult and, at some points, he was locked in his cell all day. He was once locked in his cell for 14 days straight. He is regularly locked in his cell for three to five days at a time.
5. The applicant's only real support in the community is his grandmother, who he generally speaks to daily. However, he was unable to speak with her during Covid-19 lockdowns, which caused him a great deal of stress and anxiety. He has not seen her in over four years.
6. The applicant has been on the methadone treatment program since 2017. Since moving to Goulburn Correctional Centre in June 2020, he has been making a conscious effort to stay out of trouble and believes (correctly) that he has not had a custodial infringement since 31 August 2020. The applicant describes himself as having matured a lot since re-entering custody and is focused on showing the victim's family that he is taking steps to become a better person. He stated that he knows he has more work to do and hopes that continuing on his current path will help him avoid returning to custody.

Endnotes

1. The publication of the name of the victim is not prohibited by s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) because she is deceased and her parents consented to her name being published (s 15E(1)).
2. Prior to 2008 the JIRS statistics are recorded in periodical reports rather than as statistics. In a report titled "Sentenced Homicides in New South Wales 1994-2001", it is recorded (at 24) that "[f]or the 231 offenders who were sentenced to imprisonment for manslaughter [during the subject period], head sentences ranged from 18 months to 20 years. The median head sentence was 7 years". This report followed an equivalent study for the period from 1990-1993 ("Sentenced Homicides in New South Wales 1990-1993") in which, at 90, it is stated that "[o]f those 109 offenders who received a full time custodial sentence [for manslaughter], most received a minimum term of less than eight years. There were no fixed term sentences imposed. The average (median) full term sentence imposed was 63 months (slightly over five years). Sentences typically ranged from 42 months to 8 years. Only 29 offenders were sentenced to penal servitude for eight years or more. Two of these cases involved penalties of 24 and 25 years. The latter of these seems to be Paul Evers who shot and killed 5 people in a Housing Commission unit in Surry Hills: R v Evers (unrep, 16/6/93, NSWCCA). I have been unable to locate the other offender through the limited material on JIRS.

Amendments 17 April 2023 - [103] - correction made to the second line of the quote. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2023