Decision
58There is utility in stating the general principles of manslaughter by criminal negligence.
59In Nydam v R (1977) VR 430 the Full Court of the Supreme Court of Victoria said at [445]:-
"In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment".
60The judgment of the Victorian Full Court in Nydam has been approved by the High Court in Wilson v The Queen (1992) 174 CLR 313 at 333 per Mason CJ, Toohey, Gaudron and McHugh JJ. R v Lavender (2005) 222 CLR 67 at 75 [17] and 87 [60] per Gleeson CJ, McHugh, Gummow and Hayne JJ and at 90 [72] and 110 [136] per Kirby J.
61Manslaughter by criminal negligence depends upon the offender owing the deceased a duty of care; Burns v R [2011] NSWCCA 56 at [96] per McClellan CJ at CL and Howie J. To constitute manslaughter by criminal negligence the breach of duty must be "gross"; Burns at [103]. "A very high degree of negligence" is required ( Burns at [103]). The breach of duty must have caused the death of the deceased ( Nydam at [333]), that is it must have been a substantial or significant cause of the death of the deceased.
62In the present case there is no doubt that the applicant owed a duty of care to his wife, who was a passenger in the car he was driving and who was incapacitated by her injuries from attending to her own safety. However, it will be necessary to determine what were the acts or omissions on the part of the applicant which exhibited a very high degree of negligence and which had a causal connection with the death of the victim.
63We will now proceed to consider the specific errors contended for by counsel for the applicant.
64In the first sentence of paragraph 59 of his remarks the sentencing judge said "The collision of the car with the tree was caused by the gross criminal negligence of the offender". It seems to us unlikely that his Honour intended to convey what would be the literal meaning of this sentence. The literal meaning would be inconsistent with the balance of paragraph 59 and his Honour's finding in paragraph 60 that the negligent driving of the car immediately before the collision was not of a particularly high order. In our opinion, it is likely that by the first sentence of paragraph 59 his Honour intended to say no more than that the death of the victim, the immediate cause of which was the collision of the car with the tree, was caused by the criminal negligence of the applicant. If the sentence is read in this way, it is not in itself erroneous.
65In the second half of paragraph 59 of his remarks the sentencing judge repeated the three matters, the combination of which he had said in paragraph 34 "demonstrated a high degree of negligence and a disregard for the life and safety of the deceased".
66It was submitted by counsel for the applicant that it was the combination of the three matters that amounted to criminal negligence and that the first and second matters were not free-standing, independent particulars of negligence but merely "fed into", or were introductory to, the third matter. However, it was submitted, the sentencing judge had treated the first and second matters as serious particulars of negligence in their own right and as having the effect of making the applicant's offence of manslaughter much worse than it otherwise would have been. For reasons which we will endeavour to develop in this part of our judgment, we consider that these submissions by counsel for the applicant should be upheld.
67In paragraph 60 of his remarks the sentencing judge, after finding that the negligent driving of the car immediately before the collision had not been of a particularly high order, including that there had not been any excessive speed or any evidence of other misbehaviour as a driver (apart from deviating from the roadway), said that "the negligent manner of driving was aggravated by the offender's failure to ensure that the victim as his passenger was wearing a seat belt". It was submitted by counsel for the applicant that it was an error to find that the failure to ensure that the victim was restrained by a seat belt was an "aggravating" factor, that is a factor making worse what was already, independently, a case of manslaughter by criminal negligence. On the contrary, the failure to ensure that the victim was restrained by a seat belt was integral or central to the applicant's criminal negligence. We would accept these submissions by counsel for the applicant.
68In the last sentence of paragraph 60 of his remarks the sentencing judge said:-
"And when one adds the other failures by the offender to exercise his duty of care towards the deceased that I have described above his offence must be seen as a serious one of its kind."
69"The other failures", that is the failures apart from the negligent manner of driving at the time of the collision and the failure to ensure that the victim was wearing a seatbelt, are clearly the first two matters in the combination of three matters stated in paragraphs 34 and 59 of the remarks.
70The first of these matters was that the applicant failed to exercise his duty of care to the deceased by taking her to a hospital following the assault, so that she could receive prompt medical attention. There is no doubt that the applicant owed a duty of care to the victim and that he breached that duty of care by not taking her to a hospital so that she could receive medical attention.
71However, there would not appear to me to be any causal connection, or at least any substantial or significant causal connection, between this breach of the applicant's duty of care and the victim's death. As we stated earlier in this judgment, the sentencing judge considered that no finding could be made about what might have been the consequences of the injuries inflicted by the applicant on the victim, if the collision had not occurred. The only causal connection suggested at the hearing of the application was that the failure by the applicant to take the victim to a hospital for treatment ensured that the victim's state of vulnerability continued and, in that way, it might be that there was some indirect causal relationship between the failure of the applicant to take the victim to a hospital and the victim's death. It is true that there was a causal connection of a trivial kind between the failure to take the victim to a hospital and the death of the victim, in the sense that, if the victim had been taken to a hospital (or any other place), she would not have been a passenger in a car driven by the applicant when the car collided with a tree. However, such a causal connection would be insufficient to establish an offence of manslaughter.
72The position would, of course, have been different, if the victim had died of the injuries for which she might have been treated at a hospital, although, if that had happened, the Crown would probably have continued to press the charge of murder, rather than bring a charge of manslaughter by criminal negligence.
73In our opinion, having regard to the absence of any causal connection, or at least any substantial or significant causal connection with the victim's death, it was not open to the sentencing judge to give the applicant's failure to take the victim to a hospital the degree of significance which it would appear his Honour gave it, in sentencing the applicant for manslaughter by criminal negligence. We consider that the applicant's failure to take the victim to a hospital so that she could receive prompt medical attention for the injuries she had suffered from the assault, would have been more appropriately dealt with as a matter aggravating either the grievous bodily harm offence or the kidnapping offence. As to the latter, it would be a matter aggravating the kidnapping offence that the applicant continued to detain the victim while the victim was needing medical attention.
74The second matter in the combination of three matters stated in paragraphs 34 and 59 of the sentencing judge's remarks was that the applicant drove the victim around for a period of hours, while she was in a vulnerable state and suffering from grievous bodily harm.
75In our opinion, the sentencing judge was not entitled to give this "failure" any more than very limited weight. That the victim was in a vulnerable state does not differ in substance from the parts of the third matter asserting that the victim was "distressed and injured". The sentencing judge, having sentenced the applicant for the grievous bodily harm offence, could not punish him again because the victim was suffering from grievous bodily harm. We would accept that the second matter does make explicit that the applicant's conduct in driving the victim continued for a period of hours.
76In the last sentence of paragraph 60 of his remarks the sentencing judge said that the applicant's offence "must be seen as a serious one of its kind". Although it might not be entirely clear, we consider that his Honour should be taken as saying, not merely that the applicant's negligence had reached the very high degree of negligence required before there can be any liability at all for manslaughter by criminal negligence, but that, as a case of manslaughter by criminal negligence, the applicant's case was, when compared with other cases of manslaughter by criminal negligence, a serious example of that form of manslaughter.
77We are conscious of the latitude which this Court extends to assessments by sentencing judges of the level of objective seriousness of offences. We have, nevertheless, concluded that it was not open to the sentencing judge to find that the applicant's offence was a comparatively serious example of manslaughter by criminal negligence.
78The sentencing judge himself made a finding that the negligence in the driving of the car immediately before the collision was not of a particularly high order. Indeed, it was quite minor. Photographs of the car in situ against the tree with which it had collided show that the tree was no more than a couple of metres to the side of the bitumen. Half of the rear of the car is shown as still being on the bitumen. Accordingly, the applicant's failure to control the car was only slight.
79Apart from the negligence in the failure to control the car immediately before the collision, the other acts or omissions of the applicant which were negligent and which had a causal connection with the death of the victim were, driving for an extended period of time with a front seat passenger who the applicant knew was incapacitated by her injuries from attending to her own safety, without ensuring that the passenger was restrained by a seatbelt. For reasons we have already given, the other "failures" of the applicant could not be used to significantly increase the seriousness of the applicant's offence.
80We conclude that the sentencing judge made some specific errors in sentencing the applicant for the manslaughter offence and the first ground of appeal should be upheld. We also consider that, given our conclusions about the degree of objective seriousness of the offence, the need to avoid double punishment, the presence of some favourable subjective features and the discount of 25 per cent for the early plea of guilty (and the co-operation of the defence in the sentencing process), the sentence of 12 years for the manslaughter offence was manifestly excessive and the second ground of appeal should also be upheld.
3. The kidnapping sentence is manifestly excessive
81Counsel for the applicant submitted that in the part of his Honour's remarks in which he assessed the seriousness of the offence his Honour had not referred to the applicant's being in a "state of confusion" while committing the offence. It was submitted that the offence would have been more serious, if the applicant had been clear-headed when committing the offence. However, his Honour did refer to the applicant's state of confusion in stating the facts of the offence earlier in his remarks and we would not find that his Honour overlooked the applicant's contemporaneous mental state in assessing the seriousness of the offence.
82It was submitted by counsel for the applicant that the circumstance of aggravation, that is the actual bodily harm to the victim's wrist, was minor and that some offences of taking and detaining involve a detaining of the victim for longer, and sometimes much longer, than 3 hours.
83In our opinion, this ground of appeal should be rejected. The maximum sentence for the offence is 20 years. No specific error by the sentencing Judge has been established. The sentence imposed by the sentencing judge could not, in our opinion, be regarded as manifestly excessive.
84Even if this Court were to allow this ground of appeal and to re-sentence the applicant, this Court in re-sentencing would have to take into account, as aggravating the applicant's criminality, the serious medical condition of the victim during the detention and her need for prompt medical attention.
4. The learned sentencing judge erred by fully accumulating the manslaughter sentence upon the non-parole period of the grievous bodily harm offence
85It is the case that the sentencing judge fully accumulated the sentence for the manslaughter offence on the non-parole period of the sentence for the grievous bodily harm offence, by ordering that the manslaughter sentence commence on 24 April 2014, the day after the non-parole period of the grievous bodily harm sentence would expire.
86As his Honour was sentencing for a number of offences, he was obliged to have regard to the principles governing concurrency and accumulation of sentences. These principles were discussed in Cahyadi v The Queen (2006) 168 A Crim R 41 at 47 [27] [28] per Howie J and in R v XX (2009) 195 A Crim R 38 at 48-50 [52] per Hall J.
87In Cahyadi Howie J said in part at 47 [27]:-
"In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences........."
88Subject to the application of established principle, questions of concurrency and accumulation of sentences are discretionary (Hall J in XX at 48 [52])
89In the present case the sentencing judge considered questions of accumulation and concurrency of the sentences he was about to impose in the section of his remarks on sentence heading "Concurrency". His Honour concluded that there had to be a substantial degree of concurrency in the sentences and there is, in fact, a substantial degree of concurrency in the sentences his Honour imposed.
90However, there was some criminality in each offence which was not comprehended within the other offences. For example, the inflicting of the injuries other than the injury to the wrist and the sixth and seventh injuries in the list set out in his Honour's remarks were part of the grievous bodily harm offence and not comprehended in either of the other offences. The detaining of the victim in the car was part of the kidnapping offence and was not comprehended within either of the other offences. The failure to cause the victim to be restrained by a seat belt, the driving of the car off the roadway and the causing of the death of the victim were part of the manslaughter offence and not comprehended within either of the other offences.
91Accordingly, the sentencing judge was required to make each sentence partly cumulative on the preceding sentence or sentences. In our opinion it cannot be said that the degree of accumulation provided for by the sentences imposed by his Honour was outside a permissible exercise of his Honour's discretion.
92We would reject the fourth ground of appeal.
5. In the alternative to ground four, the learned sentencing judge erred by refusing to find special circumstances and adjust the ratio between the non-parole period and total term of the sentence
93The sentencing judge did find special circumstances in the accumulation of sentences and reduced the non-parole period of the final sentence below the statutory ratio, so that the aggregate non-parole periods were not more than three-quarters of the aggregate head sentences.
94It was submitted by counsel for the applicant that the sentencing judge should have made a further finding of special circumstances, so that the aggregate non-parole periods would be less than three-quarters of the aggregate head sentences.
95In his remarks the sentencing judge gave careful consideration to whether he should make any further finding of special circumstances and concluded that he should not. His Honour reasoned that the matters which were relied on as constituting special circumstances had already been taken into account by him in determining the head sentences and should not be counted twice in favour of the applicant. This reasoning was in accordance with authority R v Fidow [2004] NSWCCA 172 at [18].
96In any event, a finding by a sentencing judge that there are, or are not, special circumstances is a discretionary finding of fact and the power of the Court of Criminal Appeal to intervene with such a finding is very limited; R v el-Hayek (2004) 144 A Crim R 90 at 109 [103]. If there has been a finding of special circumstances, the size of any adjustment to the statutory ratio so as to reflect the finding of special circumstances raises so many matters of a discretionary character that the Court of Criminal Appeal will be very slow to intervene; R v Cramp [2004] NSWCCA 264 at [31]; Stoeski v R [2008] NSWCCA 230 at [25].
97We would reject this ground of appeal.