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[2025] NSWCCA 227
Court of Criminal Appeal (NSW)
2025-12-19
Kirk JA, McHugh JA, N Adams J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Oliver v R [2025] NSWCCA 227
Hearing dates: 10 December 2025
Date of orders: 19 December 2025
Decision date: 19 December 2025
Before: Kirk JA;
McHugh JA;
N Adams J
Decision: (1) Grant leave to appeal.
(2) Appeal upheld.
(3) Quash the sentence imposed in the Supreme Court on 6 December 2024 and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 10 years 6 months commencing on 5 October 2022 and expiring on 4 April 2033, with a non-parole period of 6 years 6 months expiring on 4 April 2029.
(4) In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the applicant’s legal representatives are directed to advise him of the existence of the Act and its application to the manslaughter offence.
Catchwords: SENTENCING — aggravating factors — breach of conditional liberty — sentencing judge referred to appellant being on conditional liberty at time of offending when considering objective seriousness — error to have regard to that feature in assessment of objective seriousness
SENTENCING — relevant factors on sentencing — where applicant did not characterise manslaughter offence by placing it on notional range or by description — no requirement to assess objective seriousness by reference to a notional range — in cases of manslaughter doing so unlikely to be of much utility — sufficient to identify a number of aggravating factors — sentencing judge not required to distinguish between applicant and uncharged co-perpetrator’s roles
SENTENCING — subjective considerations on sentence — hardship — mental illness — approaches to causation in relation to mental health concerns and psychosocial maturity — no error in differing approaches to causation and differing conclusions
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2), s 25D(2)(b)(i)
Crimes (High Risk Offenders) Act 2006 (NSW), s 25C
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581
DG v R [2025] NSWCCA 137
DH v R [2022] NSWCCA 200
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156
Elhassan v R [2018] NSWCCA 118
Evatt (A pseudonym) v R [2025] NSWCCA 130
House v The King (1936) 55 CLR 499; [1936] HCA 40
JL v R [2024] NSWCCA 246
Kelly v R [2021] NSWCCA 205
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
KR v R [2012] NSWCCA 32
Luque v R [2017] NSWCCA 226
Magro v R [2020] NSWCCA 25
Mulato v R [2006] NSWCCA 282
Paterson v R [2021] NSWCCA 273
R v MJ [2023] NSWCCA 306
R v Walker [2023] NSWCCA 219
R v White [2025] NSWCCA 111
Sharma v R [2017] NSWCCA 85
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7
Whipp v R [2024] NSWCCA 79
Category: Principal judgment
Parties: Dalton Oliver (Applicant)
Crown (Respondent)
Representation: Counsel:
S Fraser SC (Applicant)
K Jeffreys (Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT) (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/296127
[This headnote is not to be read as part of the judgment]
The applicant, aged 21 at the time of the offending, pleaded guilty in the Supreme Court to the manslaughter of Graham Cameron (the deceased) as well as one count of damage property by means of fire in company of an unknown person. The Crown accepted the plea of manslaughter in lieu of a count of murder. The offences relate to the killing of the deceased, who was known to the applicant, on the morning of 26 July 2021 and the subsequent lighting of a fire in the deceased’s unit where the killing occurred, in Stockton in the Newcastle region. The applicant and a co-perpetrator, who was 17 years old at the time, reached an agreement prior to leaving the co-perpetrator’s residence that the co-perpetrator would assault the deceased and that the applicant would assist if necessary. Between leaving the co-perpetrator’s residence and arriving at the deceased’s unit, the applicant became aware that the co-perpetrator was armed with a knife. The applicant realised that the assault would be carried out in circumstances carrying an appreciable risk of serious injury being occasioned, but he did not foresee that the co-perpetrator would act with intention to cause grievous bodily harm or kill. His pleas were entered on that basis.
The sentencing judge, Ierace J, sentenced the applicant to an aggregate term of imprisonment of 11 years with a non-parole period of 7 years, commencing on 5 October 2022.
The applicant sought leave to appeal on four grounds:
(1) The Court erred in the assessment of the objective seriousness of the charge of manslaughter by failing to have regard to the role played by the applicant in that offence.
(2) The Court erred in its consideration of the impact that the applicant’s mental health had on his moral culpability and the need for deterrence.
(3) The sentence is manifestly excessive.
(4) The Court erred in the assessment of the objective seriousness of the offending by having regard to the fact that the applicant was subject to conditional liberty.
The Court (Kirk and McHugh JJA and N Adams J) held, granting leave to appeal and allowing the appeal:
1. Error having been established with respect to ground 4 and resentencing being required, it is not necessary to address ground 3, but the conclusion on resentencing necessarily indicates that ground 3 would not have been accepted. It is nevertheless appropriate to address grounds 1 and 2: at [4].
Ground 4
2. It is well established that the fact of an offender was subject to conditional liberty at the time of offending, or other matters personal to the offender must not be taken into account during an assessment of objective seriousness: at [45]. The sentencing judge twice referred to the fact that the applicant was subject to conditional liberty at the time of the offences under the two relevant headings referring to objective seriousness. While it is not an error to have regard to conditional liberty as an aggravating factor (noting s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW)), it was an error to have regard to that feature in the assessment of objective seriousness: [51]-[52]. The Crown properly accepted that it was open for this Court to find as such: [44].
Sharma v R [2017] NSWCCA 85; Elhassan v R [2018] NSWCCA 118; Kelly v R [2021] NSWCCA 205; JLv R [2024] NSWCCA 246, referred to.
Ground 1
3. While this ground is particularised as a challenge to the sentencing judge’s assessment of objective seriousness of the manslaughter offence, it is in practical terms a complaint about inadequacy of reasons: [60]. In relation to the former, it is well-established that the characterisation of objective seriousness is classically within the role of the sentencing judge, requiring House v The King error before this Court’s intervention. The sentencing judge did not characterise the objective seriousness of the manslaughter offence either by placing it on a notional range or by description; his Honour simply identified the relevant factors. It is not an error for a sentencing judge to take this approach. There is no requirement to assess objective seriousness by reference to a notional range, and in cases of manslaughter, such an exercise is unlikely to be of much utility. The sentencing judge identified a number of aggravating factors relevant to that assessment, and it was sufficient for him to do so: [61]-[68].
House v The King (1936) 55 CLR 499; [1936] HCA 40; Paterson v R [2021] NSWCCA 273; DH v R [2022] NSWCCA 200, applied.
Mulato v R [2006] NSWCCA 282; KR v R [2012] NSWCCA 32 Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581; Magro v R [2020] NSWCCA 25; R v Walker [2023] NSWCCA 219, referred to.
4. As for the complaint of inadequacy of reasons, it was submitted that the sentencing judge’s reasons were inadequate by way of failing to distinguish the actions of the applicant from the co-perpetrator. There can be no doubt that his Honour was mindful of the applicant’s role and sentenced him on that basis. Senior counsel for the applicant contended that his Honour was required to explicitly distinguish between the applicant and co-perpetrator’s roles. His Honour sentenced the applicant on the agreed facts which clearly set out their respective roles. His Honour was not sentencing both offenders; there was thus no need to distinguish between their roles. The sentencing judge was not required to go any further in considering the applicant’s role: [69]-[78].
Whipp v R [2024] NSWCCA 79, referred to.
Ground 2
5. The applicant submitted that the sentencing judge’s analysis disclosed error in two ways under this ground. The first related to how the sentencing judge dealt with causation regarding the applicant’s mental health concerns as compared to his psychosocial maturity. His Honour stated that there was a limited causal connection between the applicant’s deficits in respect to his psychosocial maturity and his offending behaviour to warrant some attenuation of his moral responsibility. In relation to mental health, his Honour indicated that a reduction in moral culpability may be warranted if there is a “nexus” with the offending behaviour, but that such a nexus was not established. The applicant’s various arguments in relation to this complaint were not made out. His Honour did not err in taking a different approach as regards the applicant’s mental health concerns and disadvantaged background and reaching separate conclusions on the basis of the separate principles applicable to each factor, where some causal connection is required for the former but not the latter: [81]-[95].
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Director of Public Prosecutions (Cth*) v De La Rosa* (2010) 79 NSWLR 1; [2010] NSWCCA 194, applied.
DG v R [2025] NSWCCA 137; R v MJ [2023] NSWCCA 306, referred to.
Luque v R [2017] NSWCCA 226; DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; Evatt (A pseudonym) v R [2025] NSWCCA 130, considered.
6. The applicant’s second criticism was that it was unclear from his Honour’s reasoning whether he had accepted that the applicant was a less appropriate vehicle for general deterrence and, even if so, that his Honour failed to give adequate reasons as regards the weight given to that fact versus “countervailing considerations”. His Honour was not required to spell out some notional degree of weight that was to be attributed to these matters. Ground 2 is not made out: [96]-[99].
Director of Public Prosecutions (Cth*) v De La Rosa* (2010) 79 NSWLR 1; [2010] NSWCCA 194, referred to.
Resentencing
7. There is one material change in the applicant’s circumstances since he was sentenced a year ago. The applicant supplied an affidavit to this Court attesting that after commencing the drug program he has been on in custody he has not used drugs in two years and that this had benefits for his mental health, and that he has also not had any gaol charges since June 2024. These circumstances give rise to a somewhat greater, if still guarded, hope for his rehabilitation prospects with some correlative reduction in the risk that he may pose to the community: [114].
8. For the manslaughter charge, the Court indicated a sentence of 8 years and 4 months. For the damage property by fire charge, the Court indicated a sentence of 5 years and 4 months. The applicant is sentenced to an aggregate term of imprisonment of 10 years and 6 months, commencing on 5 October 2022, with a non-parole period of 6 years and 6 months: [119].
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, considered.
THE COURT: The applicant, Dalton Trent Oliver, pleaded guilty in the Supreme Court to the manslaughter of Graham Cameron (the deceased), contrary to s 18(1)(b) of the Crimes Act 1900 (NSW), as well one count of damage property by means of fire in company of an unknown person, contrary to s 195(1A)(b) of the Crimes Act. The Crown accepted the plea of manslaughter in lieu of a count of murder for which the applicant had also been arraigned. The offences relate to the killing of the deceased on the morning of 26 July 2021 in Stockton, New South Wales, and the subsequent lighting of a fire in the deceased’s unit. The applicant was sentenced by the sentencing judge, Ierace J, to an aggregate term of imprisonment of 11 years with a non-parole period of 7 years, commencing on 5 October 2022: R v Oliver [2024] NSWSC 1571.
The applicant filed a notice of appeal, in time, appealing against that sentence on three grounds. The applicant subsequently sought leave to rely upon a fourth ground. The Crown did not oppose leave to add that ground. Supplementary written submissions on the proposed fourth ground were helpfully provided by both parties the day before the hearing.
The four grounds of appeal relied upon by the applicant were as follows:
Ground 1: The Court erred in the assessment of the objective seriousness of the charge of manslaughter by failing to have regard to the role played by the applicant in that offence.
Ground 2: The Court erred in its consideration of the impact that the applicant’s mental health had on his moral culpability and the need for deterrence.
Ground 3: The sentence is manifestly excessive.
Ground 4: The Court erred in the assessment of the objective seriousness of the offending by having regard to the fact that the applicant was subject to conditional liberty.
Error is established with respect to ground 4. The Court must therefore consider resentencing. It is nevertheless appropriate to address grounds 1 and 2 which are potentially relevant to the resentencing exercise. No error is established on those grounds. It is not necessary or useful to address ground 3 in terms, but our conclusion on resentencing necessarily indicates that we would not have accepted that ground. In the result, leave to appeal should be granted and the applicant sentenced to an aggregate term of imprisonment of 10 years 6 months, commencing on 5 October 2022, with a non-parole period of 6 years and 6 months expiring on 4 April 2029.
In what follows we first summarise the agreed facts and his Honour’s reasons for judgment, then address ground 4 followed by grounds 1 and 2, before turning to resentencing.
The applicant is an Indigenous man who was 21 years old at the time of the subject offending. He is now aged 26. A relatively spartan statement of agreed facts was before the Court below. It sought to chart a narrow course between establishing enough to found the applicant’s liability for manslaughter without going so far as to establish his liability for murder. The facts can be summarised as follows.
On 20 June 2021 the applicant was arrested for an unrelated incident. He was granted bail the following day to reside at the home of Mr Chris Davidson in Stockton in the Newcastle region. Mr Davidson was not in a position to have the applicant reside with him, rendering the applicant effectively homeless and causing him to “couch surf” in the period between 21 June and 23 July. During that time, the applicant met the deceased, a 54 year old man, through mutual acquaintances. They became friendly. The applicant stayed at the deceased’s apartment in Stockton for one or two nights during that four-week period. During the following week from 23-30 July the applicant stayed with a family at a residence also in Stockton (the Stockton residence). One of the residents was the co-perpetrator, who was then aged 17 (we note that the co-perpetrator has not been charged in relation to these matters).
On the evening of 25 July 2021 and early in the morning of 26 July the deceased sent a number of text messages to the applicant. The applicant’s mobile phone was switched to “airplane” mode at that time and the messages were not delivered until about 3:00am, when the applicant took his phone off that mode following which he sent one message to the deceased. He put his phone back in airplane mode at about 3:30am.
At that time the applicant and the co-perpetrator, who had been playing X-box together that night, left the Stockton residence and walked the 475 metres to the deceased’s unit. Shortly before doing so they had reached an agreement that the co-perpetrator would assault the deceased and that the applicant would assist if necessary. They had both consumed marijuana prior to leaving. At some point before arriving at the deceased’s unit the applicant became aware that the co-perpetrator was armed with a knife. The applicant realised that the assault would be carried out in circumstances carrying an appreciable risk of serious injury being occasioned, but he did not foresee the possibility that the co-perpetrator would act with an intention to cause grievous bodily harm or kill. The applicant proceeded with the agreement nonetheless.
They walked to the deceased’s unit and entered it; the agreed facts do not indicate how. There was an altercation involving the deceased. The co-perpetrator’s violence towards the deceased escalated rapidly. The co-perpetrator stabbed the deceased once in the neck and twice in the back with a knife. He died shortly after.
Both the applicant and the co-perpetrator deliberately set fire to the unit, with the deceased’s body inside, before leaving. The applicant and co-perpetrator then went to a location by the Hunter River, approximately 80m from the deceased’s unit, lit another fire and placed in it clothing worn during the incident. Police were later able to recover fragments of partially burned fabric. DNA samples on that fabric matched that of each of the deceased and the applicant, with blood also matching that of the deceased.
The sentencing judge noted that the applicant’s criminal record included prior offending as well as offences which had not been finalised at the time of the offending or which were committed subsequently. At the time of the offending he was subject to two community corrections orders (CCOs) for offences of destroying or damaging property. The applicant was also on bail including for one count of being armed to commit an indictable offence at the time of the offending, the victim being his sister (as described further below). His Honour also referred to an incident which occurred five days after this offending (as elaborated on below at [33]), as well as his prison record.
His Honour referred to evidence tendered by the applicant including a psychological assessment report of Dr Emma Collins, two affidavits of his solicitor and letters of support from his family.
Dr Collins reported that the applicant “experienced multiple developmental risks across his childhood”, including the presence of drugs and alcohol in the household, bearing witness to and being a victim of domestic violence, as well as being a victim of sexual abuse by his brother when he was six years old and suffering from deprivation of basic needs such as food. He noted that the applicant began staying away from home aged eight or nine years old, sometimes for days or weeks at a time.
The applicant’s significant history of substance use was also noted. He reported beginning to use nicotine aged six, cannabis aged seven and crystal methamphetamine (ice) aged nine. After ceasing use of most drugs at age 11, he regularly used substances again from around aged 16, including ice and a brief period of heroin usage. Following a stabbing incident when he was 19 years old (referred to below at [21]), he abused benzodiazepines which had been prescribed to him, as well as ice when he was unable to obtain prescription medication. His drug use had various impacts on his behaviour, including frequently losing consciousness and withdrawal related seizures. At the time of his arrest in late 2022 he was engaging in daily cannabis use, and benzodiazepine and ice abuse, which he indicated made him “severely paranoid” and caused him to misinterpret some social cues as acts of aggression.
Dr Collins noted that the applicant had had a disrupted school life, having been diagnosed with various mental conditions including Attention Deficit Hyperactivity Disorder, for which he was medicated for some time, as well as experiencing behavioural problems, including aggression, for which he was expelled or forced to leave school on multiple occasions. He also recounted experiencing sexual abuse during his early schooling. He disengaged from high school in Year 10. He reportedly completed an industry TAFE course and had short-term employment from time to time, the longest being a period of a few months.
Hospital records indicated that the applicant attempted to commit suicide in 2014 aged 14 or 15 years old. He did not receive ongoing support as he “minimised his mental health needs”. His father died from an overdose when the applicant was 18 years old. The applicant saw his father’s body (which was “not in a good condition”) after his death and Dr Collins opined that this experience “had a lasting, pervasive impact” upon him. At the age of 19 he was stabbed multiple times when he intervened during an incident involving a friend who became abusive towards the friend’s domestic partner.
[66] … during the offender’s childhood he was exposed to gross physical, emotional and sexual abuse, as well as the substance abuse by his carers and role models, that impaired his capacity to mature at an age-appropriate rate and predisposed him to mental impairments, substance abuse and learned responses of physical violence to stressful situations involving others.
His Honour further said that he could not be satisfied that there was a “comprehensive causal connection between the offender’s childhood of deprivation, for example, as to his shortcomings with impulse control, and the commission of the offences” in the absence of evidence as to the applicant’s reasoning and motive and as to the precise facts of the offending (at [67]). However, his Honour did accept a “limited causal connection” which warranted “some attenuation of the offender’s moral responsibility” between his “deficits in consequential thinking and maturity, which are traceable to that background” and the offending (at [68]). His Honour considered that there was an insufficient nexus between the applicant’s mental health diagnoses and the offending behaviour to reduce his moral culpability (at [69]).
As for the applicant’s subjective considerations, his Honour said there was no evidence of an expression of remorse, apart from what was said to Dr Collins about feeling “bad” about his conduct and a “bit broke” about his actions.
His Honour noted the applicant’s submission that the applicant’s mental health conditions warranted reduced weight being given to specific and general deterrence (referring to Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194), and that his Bugmy considerations warranted less emphasis on general deterrence (referring to Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37). His Honour said the following in response:
[72] As is made clear in both De La Rosa in the last dot point in [177] and in Bugmy at [44], there may be countervailing considerations of protection of the community that operate on the fixing of the appropriate sentence. These are matters to be taken into account as part of the process of instinctive synthesis, together with the offender’s prospects of rehabilitation and how best that may be reflected in the structure of the sentence.
[76] The absence of remorse and this concerning behaviour so soon after these offences makes clear how damaged a person the offender is and how much work there is to be done, in order for him to safely re-enter the community.
As regards the applicant’s criminal history, he had been convicted at Newcastle Local Court in June 2019 of wielding a knife in a public place and stalk/intimidate with intent to instil fear. He was fined and given a CCO for 12 months from 13 June 2019.
At the time of the subject offences the applicant was subject to two further CCOs, both imposed for the offences of destroying or damaging property. The first was imposed for 12 months in October 2020. The order specified random drug testing, supervision by the Community Corrections service, and treatment programs, including “rehabilitation/treatment (drugs). Abstention: 12 months … Type: drugs”. Entries in the applicant’s medical records disclose that he reported using illicit substances on seven consultations with his general practitioner during the term of the CCO, contrary to that condition. The second CCO was imposed in December 2020 for a period of 2 years. A treatment program was specified: “rehabilitation/treatment mental health”.
At the time of the subject offences the applicant was on bail on the charge of being armed to commit an indictable offence. On 20 June 2021 – a little over a month before the night in question – the applicant threatened to stab his sister whilst they were at the home of their mother. He lifted his shirt, revealing a knife tucked into the waistband of his pants. His sister called his bluff by saying, “Come on then” and he ran from the house. Police arrested the applicant that night. The police facts note that the applicant was “calm and co-operative”, but once he was in the caged police vehicle “he commenced bashing his head against the cage”. He was granted bail, a condition being that he not possess a knife. In December 2021 he was convicted on this charge and sentenced to imprisonment for a period of 4 months, commencing on 1 August 2021 and concluding on 30 November 2021.
Five days after the offences before this Court were committed, on 1 August 2021, the applicant was arrested and charged with being armed with intent to commit an indictable offence and affray. He had had a verbal altercation with another male and, while they were crossing a road with others, he lifted his shirt a number of times, showing what appeared to be a machete style knife with a blade approximately 30cm in length. He drew the blade and swung it at the other person, who had to jump back to avoid being struck. The applicant then ran away. In December 2021 he was convicted and sentenced for each of these offences to imprisonment for a period of 16 months, commencing on 1 August 2021, with a non-parole period of 8 months concluding on 31 March 2022.
At the time of sentencing the applicant had 28 entries on his prison record for the period since these offences, including for matters involving fighting, drugs and alcohol, intimidation and disobeying directions. The sentencing judge noted that the applicant was assaulted while in custody which had led him to being moved.
[4] The basis of the Crown's acceptance of the offender’s plea of guilty to the manslaughter offence is that he was a participant in a joint criminal enterprise with another person, who was aged 17 at the time (the co-perpetrator), to the effect that the co-perpetrator would assault the deceased and the offender would be present to assist, if necessary. En route to the deceased’s residence to carry out the assault, the offender became aware that the co-perpetrator was armed with a knife. Although the offender realised there was now an appreciable risk of serious injury being occasioned to the deceased, he was determined to continue with the assault. The co-perpetrator used the knife to kill the deceased. It was accepted that the offender had not foreseen the possibility that the co-perpetrator would use force to intentionally kill, or inflict grievous bodily harm on the deceased, and therefore the offender’s participation in the assault did not come within the doctrine of extended joint criminal enterprise to render him guilty of murder.
[50] The offender is to be sentenced for the offences on the agreed facts. They are silent as to aspects of both offences, particularly as to matters that are pertinent to the objective seriousness of the manslaughter offence, such as the offender’s motive for agreeing to assault the deceased, and what precisely occurred when he and the co-perpetrator entered the deceased’s apartment.
[51] I note at the outset that the matters on which there are no facts before the Court neither aggravate nor mitigate the objective seriousness of the offending behaviour. The offender is to be sentenced on the facts as they are.
[52] … The offender is to be sentenced on the basis of manslaughter by an unlawful and dangerous act; that is, an act causing death that was contrary to the criminal law and one that a reasonable person in the position of the offender would have realised carried with it an appreciable risk of serious injury to another or others … The offender was party to an agreement to assault the deceased, knowing that it was illegal and that, since the co-perpetrator was armed with a knife, doing so carried with it a real risk of danger to the deceased, but he nevertheless went ahead with the agreement.
[54] In determining the objective seriousness of the offence, I take into account the fact that the deceased was killed in his home, where he was entitled to feel safe (s 21A(2)(eb) of the Sentencing Procedure Act). He was middle-aged and home alone when confronted by the offender and co-perpetrator, both young males, in the early hours of the morning, so there was a degree of vulnerability which I take into account, in a general sense, as to the objective seriousness of this offence: Du Plessis v R [2024] NSWCCA 164 at [70].
[55] The offender was on conditional liberty; he was subject to conditions of bail for three charges, one of which was that he was armed to commit an indictable offence, having threatened to stab his sister with a knife that he had secreted in his pants (s 21A(2)U) of the Sentencing Procedure Act). The deceased, who he had only known for a matter of weeks, had provided him with accommodation for one or two nights when the offender was homeless.
[56] There was a degree of planning of the assault, which was agreed before the offender and the co-perpetrator left the Stockton residence, although it was limited in scope and required little organisation (s 21A(2)(n) of the Sentencing Procedure Act).
[57] The offender and co-perpetrator left the Stockton residence at about 3:30am with the intention of walking the short distance (450m) to the deceased's apartment to assault him. The fires at the river and apartment block were discovered at about 5am, thus establishing the overall timeframe within which the killing occurred. The trajectories of the knife wounds suggest that the deceased was stabbed from behind. It is not possible to determine how long it was after the deceased was confronted by the offender and co-perpetrator that he was killed; whether it was a matter of seconds, minutes, or longer, although clearly it was no more than about an hour.
[58] Contrary to a submission by counsel for the defence, I find that the burning of the deceased’s body is a matter appropriately taken into account in fixing the objective seriousness of the manslaughter offence, although I note there is no evidence of desecration of the deceased's remains beyond the burning of his body. Counsel relied upon the reasoning of Johnson J in R v Wilkinson (No 5) [2009] NSWSC 432 at [61]-[62], however, there are striking similarities between the facts of this case and those in R v Sumpton (No 4) [2015] NSWSC 684 at [33], which was the subject of appeal: Sumpton v R [2016] NSWCCA 162 at [152].
[Emphasis added.]
As with the offence of manslaughter, this offence was aggravated by the offender being on conditional liberty at the time.
Under the heading “The offender’s moral culpability”, the sentencing judge referred to the factual context of the offending “occurring quickly, with a minimum of planning or contemplation and being agreed on the basis that the offender’s role would be as back-up to the co-perpetrator” (at [65]). At [67], his Honour referred again to the applicant’s “back-up role”.
His Honour’s observations regarding the applicant’s role at [4], [50]-[58], [65] and [67] are relevant to the complaint made under ground 1.
The Crown accepted that it was open to this Court to find that the sentencing judge erred in taking into account that the applicant was subject to conditional liberty in assessing the objective seriousness of each offence. That concession was properly made.
It is well-established that the fact an offender was subject to conditional liberty at the time of offending, or other matters personal to the offender must not be taken into account during an assessment of objective seriousness.
In Sharma v R [2017] NSWCCA 85, in the course of recounting the various factors relevant to the assessment of objective seriousness, the sentencing judge considered that the fact that the offender was on a good behaviour bond at the time of the offence was a matter of aggravation. Justice R A Hulme (with whom Beazley P and Walton J agreed) found that error had been established and observed the following at [66]-[67]:
[66] Whilst this proposition itself is uncontroversial, its location in the part of the sentencing remarks assessing objective seriousness supports the inference for which the applicant contends, namely that her Honour took this into account in her assessment of the objective seriousness of the offences. Taking into account a matter personal to the offender, such as that the offending occurred while he or she was subject to conditional liberty (e.g. Boney v R [2015] NSWCCA 291 at [18]-[20]) or had a criminal history (e.g. McCabe v R [2016] NSWCCA 7 at [15]-[23]) is erroneous in light of R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at [24] per Spigelman CJ and at [81] per Barr and Bell JJ and Muldrock v The Queen at [27].
[67] I accept that this error may well be the result of an inadvertent slip in the order in which matters were addressed in an ex tempore sentencing judgment. If the statement by the sentencing judge had appeared two paragraphs later there could be no complaint. However, on the face of it, error has been established.
[13] … It was correct that the applicant was on parole at the time he committed the offence. As provided by s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that was an “aggravating factor” to be taken into account in determining the appropriate sentence for the offence. The confusion generated by the use of the term “aggravating” in that context was resolved in the decision of this Court in R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242. At common law, an “aggravating factor” was understood to mean one that makes the offence more serious. However, as explained in McNaughton, that is not the sense in which the word “aggravating” is used in the Act. The list of “aggravating factors” in s 21A(2) was intended to encompass both subjective and objective considerations: McNaughton at [30]-[34] per Spigelman CJ; McClellan CJ at CL agreeing at [60]; Grove J agreeing at [76]; Barr and Bell JJ agreeing at [81].
[14] The fact that the offence was committed while the offender was on conditional liberty was relevant as a subjective consideration but not as part of the assessment of the objective seriousness of the offence: Hillier v DPP (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312 at [30] per Basten JA; at [74] per R A Hulme J; applied in Smith v R [2011] NSWCCA 163 at [26] per R S Hulme J; Giles JA and Adams J agreeing at [1] and [72]. The distinction is important because the principle of proportionality requires that a sentence should not exceed (or fall short of) what is proportionate to the gravity of the crime, having regard to the objective circumstances: McNaughton at [15], citing Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14.
There is no controversy as to the principle. This Court has clearly explained on many previous occasions that whether the offender was on conditional liberty at the time of the offence(s) is irrelevant to the objective seriousness of the offending: for example, R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131 at [92]; Hillier v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 565; [2009] NSWCCA 312 at [30] (Basten JA) and [74] (R S Hulme J).
the first matter mentioned by the sentencing judge under the heading “Objective Seriousness” was that the applicant was subject to conditional liberty at the time of the offending. That factor was not mentioned again in the sentencing remarks. Despite this, the Crown did not accept that his Honour had regard to this factor in relation to the assessment of objective seriousness. In doing so, reliance was placed on the decision in Sharma v R [2017] NSWCCA 85. But at [66] of that decision*,* R A Hulme J observed that it was the location of the reference to conditional liberty in that case (under a heading of objective seriousness) which satisfied the court that it had been taken into account in the assessment of objective seriousness. That is precisely what happened in the present case. [Emphasis in original.]
The sentencing judge twice referred to the fact that the applicant was subject to conditional liberty at the time of the offences: at [55] under the heading “The objective seriousness of the offence of manslaughter”; and at [62] under the heading “The objective seriousness of the offence of damage property by fire in company”.
We are satisfied that the circumstances in which his Honour had regard to this aggravating factor are relevantly similar to those in Sharma and JL. It is not an error to have regard to conditional liberty as an aggravating factor; in fact s 21A(2) of the CSP Act provides that one of the aggravating factors to be taken into account in determining the appropriate sentence for an offence is that:
(j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence …
It was common ground before the sentencing judge that s 21A(2)(j) was relevant and that the fact that the applicant was on bail and also subject to community corrections orders at the time of the offending was an “aggravating” factor. Despite this, no submissions were addressed to his Honour as to how that aggravating factor was relevant on sentence. As the above authorities make clear, not all of the aggravating factors enumerated in s 21A(2) of the Sentencing Act are relevant to the assessment of objective seriousness; some of them are matters relevant to the offender’s subjective case such as s 21A(2)(d) (the offender has a record of previous convictions).
Given that the only reference by the sentencing judge to the relevant circumstance of aggravation was in his consideration of the objective seriousness of both offences, we are satisfied that his Honour erred in having regard to that feature in the assessment of objective seriousness. Error having been established the Court is required to re-sentence the applicant afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.
The applicant submitted that he was required to be sentenced for the offence that he committed, as opposed to the offence committed by another, as set out in the agreed facts. In doing so, it was incumbent on the sentencing judge to consider the applicant’s role relative to that of his co-perpetrator. While it was accepted that the sentencing judge referred to the agreed basis of liability, it was submitted that his Honour did not engage with the submissions made by defence counsel as to the role of the applicant in the offending and the impact his role had on the assessment of objective seriousness. The applicant pointed to the fact that under the heading “The objective seriousness of the offences”, the sentencing judge made no reference at all to the role played by the applicant.
The applicant accepted that his Honour was generally correct to note that the evidence was silent as to aspects of the applicant’s role including his motive and “what precisely occurred” (at [50]), but it was submitted that the facts made clear that the applicant’s actions were limited to his being present when the stabbing occurred and that it was the co-perpetrator who had stabbed the deceased in circumstances where that co-perpetrator’s use of violence had escalated rapidly.
It was further submitted that the sentencing judge’s remarks at [52] were not sufficient to demonstrate that his Honour had appropriate regard to the applicant’s role in the offending; although that paragraph included a recitation of the basis of liability upon which the applicant pleaded guilty, it did not engage with what that factual context meant for an assessment of the applicant’s role as compared to the co-perpetrator and the culpability that should attach to him.
The applicant relied on the decisions in KR v R [2012] NSWCCA 32 and Whipp v R [2024] NSWCCA 79, which are considered below. He also distinguished the applicant’s case from that in Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581 on the basis that the sentencing judge made no reference to the applicant's role in the offending when discussing its objective gravity despite it being critical to that determination. Given the absence of any reference to the applicant's role in the context of discussing objective seriousness, the applicant submitted that the Court could not infer that the sentencing judge took it into account.
Finally, it was submitted by the applicant that in circumstances where defence counsel had devoted significant portions of both her written and oral submissions to the impact of the applicant’s role and state of mind on the assessment of objective seriousness, it was incumbent on the sentencing judge to engage explicitly with these submissions.
Although this ground is particularised as a challenge to the sentencing judge’s assessment of the objective seriousness of the manslaughter offence, it is in practical terms a complaint about inadequacy of reasons. We shall address both aspects of this ground in turn.
It is well-established that the characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46]. It is necessary to show error of the type identified in House v The King (1936) 55 CLR 499; [1936] HCA 40 before this Court will intervene. As Gleeson JA explained in Magro v R [2020] NSWCCA 25 at [31]:
The question is whether or not the particular characterisation which the sentencing judge gave to the circumstances of the offence was open to the judge: Mulato v R at [37], [46]-[47]. In order for this Court to interfere with the assessment made by the sentencing judge, error must be demonstrated in accordance with the principles in House v The King: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40; see also Mulato v R at [46]; Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 at [67].
recite some mantra invoking comparisons about where the sentence being considered falls on some hypothetical arithmetical or geometrical continuum of seriousness*.* Whereas it would not be an error for a judge to adopt such an approach, a failure to do so does not indicate error.
A sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point. The use of descriptors such as “low end of the middle of the range”, “upper end of the middle of the range” or, “just below or above the midpoint” add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence.
Despite this, as Leeming JA observed in R v Walker [2023] NSWCCA 219, it may sometimes be helpful to define objective seriousness by reference to a range, notwithstanding that the putative scale from “low range” through “mid-range” to “high range” is a vague one: at [2]-[3].
Not only is there no requirement either way to assess objective seriousness by reference to a notional range, in Paterson v R [2021] NSWCCA 273 Beech-Jones CJ at CL (with whom R A Hulme J and N Adams J agreed) made the following observation specifically referable to the offence of manslaughter at [33]:
There is no standard non-parole period for manslaughter. Given that, and the much repeated statements that, of all crimes, manslaughter is said to “thro[w] up the greatest variety of circumstances affecting culpability” (R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep; see also R v Blake Davis [2021] NSWSC 235 at [138] per N Adams J) it follows that an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility. For my part I consider that it is an analysis that is best avoided.
Although the sentencing judge did not place the objective seriousness of the manslaughter offence on a range, he did identify a number of aggravating factors relevant to that assessment. Central to that assessment is that the applicant agreed with an unnamed co-perpetrator to assault the deceased. The applicant knew before entering the deceased’s home that his co-perpetrator was armed with a knife. The offence was committed in company, in the deceased’s home, when the deceased was alone, in the early hours of the morning. The deceased had recently provided the applicant with accommodation for one or two nights when the applicant was homeless. After the deceased was stabbed, the applicant took part in burning his body.
That it is sufficient for a sentencing judge to assess objective seriousness by reference to the relevant factors bearing on that assessment was confirmed in Delaney. In that decision Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed) observed the following at [56] as to the requirement of a sentencing judge to assess objective seriousness:
While it is true that his Honour did not in terms assess the objective gravity of the offending, he did specifically refer to the factors which bore upon its objective seriousness. His Honour took account of the amount involved, the role of the appellant, the nature of the conduct and the period over which it took place. While it may have been preferable for his Honour to have made a specific assessment of the objective seriousness of the offending, he did implicitly do so. I am satisfied that the factors to which his Honour referred were relevant and important and were given proper weight in the sentencing process. While his Honour may not have expressly determined the objective criminality of the offences, he clearly took that into account.
The applicant distinguished this passage in Delaney from the present case on the basis that the sentencing judge did not specifically refer to the applicant’s role. Otherwise, it was accepted by the applicant that the factors listed by the sentencing judge were relevant and appropriate to the assessment of objective seriousness (with the exception of the reference to conditional liberty which we have considered under ground 4).
In support of the complaint as to the inadequacy of reasons, the applicant relied upon the principles derived from authorities including R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 at [42] and DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [32]-[33]. These principles are well settled.
Reliance was also placed on the decision in KR as to the requirement to identify the role of co-offenders in a joint criminal enterprise. In that decision, Latham J (with whom Whealy JA and Harrison J agreed) reviewed various authorities relating to offenders charged jointly with the commission of a crime and then observed the following at [19]-[22]:
[19] What emerges from these statements of sentencing principle is that the participants in a joint criminal enterprise are equally responsible or liable for all the acts in the course of carrying out the enterprise, by whomsoever they are committed, yet a particular participant's level of culpability stands to be assessed by reference to his/her particular conduct.
[20] Such an approach is consonant with the distinction in law between an offender's responsibility for criminal conduct and his/her culpability. They are relevant at different stages of the criminal process.
[21] Criminal responsibility, and therefore liability to punishment, attaches to a person who voluntarily and intentionally performs those acts constituting an offence. “The concurrence of will and physical act and the concurrence of intent and physical act suffices to attract criminal liability.” : R v O'Connor [1980] HCA 17 at [20]; 146 CLR 64 at 72, per Barwick CJ.
[22] Culpability, on the other hand, is concerned with the assessment of an offender’s moral responsibility for the offence. As such, it assumes liability for the offence and focuses upon aspects of the offender's conduct and his/her subjective circumstances in order to determine the appropriate degree of punishment: R v Merritt [2004] NSWCCA 19; R v Henry & Ors. [1999] NSWCCA 111 at [254]; 46 NSWLR 346; 106 A Crim R 149.
Applying these principles to the present case it was submitted that the sentencing judge’s reasons were inadequate in that his Honour failed to explain how he had distinguished the actions of the applicant from those of the unidentified co-perpetrator. We do not accept that submission.
When regard is had to what his Honour set out at [4], [50]-[51], [52], [65] and [67] of the sentencing reasons, there can be no doubt that his Honour was mindful of the applicant’s role in the enterprise and sentenced him on that basis. What his Honour noted at [4], under the heading “Circumstances of the offending”, was that the applicant was a participant in a joint criminal enterprise “to the effect that the co-perpetrator would assault the deceased and the offender would be present to assist, if necessary”. His Honour also noted (at [4]) that the applicant became aware en route to the deceased’s home that the co-perpetrator was armed with a knife and the applicant “was determined to continue with the assault” despite realising that there was an appreciable risk of harm. His Honour also remarked at [4] that the applicant was not to be sentenced on the basis that he foresaw the possibility of the co-perpetrator using force to intentionally kill or inflict grievous bodily harm and therefore that he was not guilty of murder.
Significantly, at [50]-[51] his Honour acknowledged that the agreed facts lacked many surrounding details that may have been relevant to the assessment of objective seriousness. Again at [52], his Honour recorded that the basis of manslaughter was unlawful and dangerous act and that “the [applicant] was party to an agreement to assault the deceased, knowing that it was illegal and that, since the co-perpetrator was armed with a knife, doing so carried with it a real risk of danger to the deceased”.
Further, the aspects of the offending set out at [50]-[58] were all applicable to the applicant in light of his role in the offending of providing “back-up”. Similarly, at [65] and [67], his Honour referred to the applicant’s role as “back-up to the co-perpetrator”.
Although the applicant accepted that his Honour had described the applicant’s role in these passages, it was contended that his Honour had not in fact engaged with the applicant’s submissions as to his more limited role. In this regard reliance was placed on the decision of Button J (with whom Davies and Sweeney JJ agreed) in Whipp. In that case, defence counsel had made extensive submissions directed to whether the offender’s mental health condition (post-traumatic stress disorder) meant his experience in custody was felt more harshly. On appeal, the offender argued that the sentencing judge had failed to account for that factor on sentence. Button J upheld this ground of appeal, finding at [61]-[62]:
[61] Finally, in considering more broadly the forensic context of this ground, I do not believe that sentencing has devolved to the point where a sentencing judge is required to deal ritualistically, by way of a “tick a box” process or rote recitation, with every single written and oral submission – without discrimination as to its significance or triviality – made on behalf of an offender or the Crown, for fear of an appeal by one party or the other. That would be a victory of form over substance. It would also be an intellectual debasement of what should be a process of considered reflection. It would also impose an intolerable, unworkable burden on sentencing judges. That would be especially so in the District Court, bearing in mind its combination of extreme busyness with error-based appeals from that court in criminal matters.
[62] Even so, in my respectful opinion, it was incumbent upon the sentencing judge to engage explicitly with this submission. As I have shown, it was a significant proportion of the oral submissions on behalf the applicant as a whole. It was also, I think, an important point: that a man who had been psychologically and indeed physically damaged in a particular setting was to be punished by being placed yet again in the very setting from which the damage arose. I respectfully think that it was insufficient simply to state the effect on periods of incarceration of the applicant in the past, and then to state that all such factors had been taken into account as a matter of instinctive synthesis. I think it was incumbent upon the sentencing judge – perhaps only very briefly – to refer to the matter, and to either accept it as playing some mitigatory role regarding the sentence to be served in the future, or to explain why it had been rejected. [Emphasis in original.]
The submissions concerning the applicant’s role said to have been overlooked by his Honour included that there was no plan for the applicant to assault the deceased, that the applicant only became aware of the knife a short distance from the deceased’s home, that the applicant did not use the knife and that the applicant’s role was only to assist if needed. We are not satisfied that his Honour overlooked these matters nor that he failed to engage with them.
During the hearing of the appeal, the following exchange occurred: (T8)
ADAMS J: … As I understand your complaint, it’s that, apart from the first line at 55, the only complaint is that somewhere in there his Honour should have said, but he was not as bad as the co-offender.
FRASER: I think that’s a very simple way of putting it, and not intending that terminology disrespectfully, I think that is - that’s right.
His Honour sentenced the applicant on the agreed facts which clearly set out the respective roles. This was not a case where his Honour was sentencing the co-perpetrator as well and thus needed to distinguish between their roles for the purposes of applying the parity principle. The perpetrator was never charged. In those circumstances the sentencing judge was not required to go any further than he did in considering the applicant’s role.
Ground 1 is not made out.
The first claimed error related to how the sentencing judge had dealt with causation with regard to the applicant’s mental health concerns as compared to how he dealt with the issue in relation to psychosocial maturity.
Dr Collins addressed both mental health concerns and psychosocial maturity, doing so separately. On the former topic she said that “it is evident that Mr Oliver has a complex, early onset history of mental health concerns”, and those issues were enduring. She considered his symptoms (which she had described) were best explained by a PTSD diagnosis and an unspecified personality disorder involving evidence of “antisocial behaviour, impulsivity and reactivity”. On the latter topic she said:
[40] Maturity: … it is evident that he has experienced significant problems with emotional regulation since childhood. He has also displayed pervasive problems with impulse control. There is no clear evidence across his history to suggest that he has engaged in planning or problem-solving skills. Similarly, this current assessment did not find that Mr Oliver has specific skills in consequential thinking. …
[41] It is my opinion that Mr Oliver’s pervasive childhood adverse experiences have significantly interfered with his self-development and psychosocial maturity. … Ultimately, the developmental risks Mr Oliver has been exposed to have negatively affected his psychosocial functioning and maturity, meaning that his maturity is lower than would be estimated by his age. It is not possible to accurately estimate his level of maturation in years, other than to say that he is not tracking with his peers in terms of psychosocial maturation.
As the sentencing judge noted at [67], Dr Collins did not suggest that either the applicant’s mental health or psychosocial concerns had played a causal role in the offence. His Honour recorded at [64] that it had nevertheless been submitted that a causal link between the applicant’s deprived childhood and consequent mental health issues and the offending may be inferred from Dr Collins’ findings in [40] and [41] of her report. His Honour explained at [67] that given the paucity of evidence did not permit him to make findings of fact as to the applicant’s reasoning and motive with respect to the offence, he could not be satisfied there was “a comprehensive causal connection” between the “applicant’s childhood of deprivation, for example, as to his shortcomings with impulse control, and the commission of the offences”.
Nevertheless, as regards the psychosocial maturity issue, his Honour stated at [68] that the identified deficits “resonate to some degree with aspects of his offending behaviour” such as “to establish a limited causal connection so as to warrant some attenuation of the offender’s moral responsibility”. He referred to Bugmy in that regard. As regards the mental health concerns, his Honour indicated at [69] that a reduction in moral culpability may also be warranted by an offender’s mental health or cognitive impairment diagnosis “if there is a nexus with the offending behaviour” (citing De La Rosa), but “in the absence of more detailed accounts of the offending behaviour” such a nexus had not been established.
The applicant argued, first, that establishing a “nexus” was not necessary; rather, the sentencing judge “was required to consider whether the mental illness contributed to the commission of the offence”. This argument, with its focus on the word “nexus”, involves a distinction without a difference.
Unsurprisingly, neither side took issue with the first two dot points set out by McClellan CJ at CL in De La Rosa at [177]:
● Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry (1999)46 NSWLR 346 at [254]; Miller v The Queen [1999] WASCA 66 at [23]; R v Jiminez [1999] NSWCCA 7 at [23], [25]; R v Tsiaras (at 400); Lauritsen (at [51]); R v Israil (at [23]); R v Pearson [2004] NSWCCA 129 at [43]; R v Henry (2007)(at [28]).
● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: R v Engert (at 71); R v Wright (1997) 93 A Crim R 48 at 50–51; R v Israil (at [22]); R v Pearson (at [42]); R v Henry (2007) (at [28]).
The first dot point deals with the potential for a person’s state of mental health to reduce their moral culpability in a sentencing assessment. His Honour’s reference to the state of mental health contributing to the commission of the offence in a material way evokes the identified state of mental health having some causal significance as regards the offender committing the offence in question. The applicant did not suggest to the contrary. The sentencing judge was suggesting no more in referring to there being a “nexus” between an offender’s mental health or cognitive impairment diagnosis and the offending behaviour.
The applicant quoted what had been said by Hamill J in Luque v R [2017] NSWCCA 226:
[113] … a sentencing Judge dealing with evidence of an offender’s mental condition or intellectual impairment ought not to approach the task in an unduly technical or restrictive way. The issue to be determined is not the same as deciding the issue of causation in a civil case. The issue is whether the fact of the disorder mitigates the punishment that ought to be visited upon the offender. In one respect, this involves an assessment of whether the moral culpability of an offender is reduced because their mental condition contributed directly or indirectly to the commission of the offence. …
[81] While the principles are well settled, it is necessary to emphasise that nothing said in De La Rosa equates with a requirement that an offender must establish a direct causal link or nexus between the mental health issues and the offending before moral culpability is reduced. Instead, what is required is evidence indicating that an offender’s mental health “contributes to the commission of the offence in a material way”.
[95] In relation to moral culpability, it has long been accepted that “[w]here the state of a person’s mental health contributes to the commission of the offence in a material way; the offender’s moral culpability may be reduced” (Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177]) with potential consequential effects upon the weight to be afforded to the various sentencing factors, including denunciation and general deterrence. This form of connection between the offence and its commission might be described as “a” causal connection, but it need not be the direct or precipitating cause: see Moiler v R [2021] NSWCCA 73 at [59] (Button J with whom Basten JA and Davies J agreed).
The sentencing judge here did not indicate that a direct causal connection was required; rather the connection required was merely referred to as a “nexus”. Nor did his Honour approach the issue in an overly technical manner.
The applicant then argued that the impact of a background of deprivation and trauma to development (as addressed in Bugmy) and the impact of a mental illness (as addressed in De La Rosa) are separate but often related concepts. In this case, it was said, the catalyst of both problems appears to have been his childhood experiences, manifesting in similar ways which compounded each other. In that context there was no basis to distinguish between the “limited causal connection” that his Honour found engaged Bugmy and the lack of a “nexus” to engage De La Rosa considerations.
It has regularly been recognised that although the existence of a causal connection may be relevant, “no causal connection is needed to reduce moral culpability on Bugmy factors”: DG v R [2025] NSWCCA 137 at [159]; see eg R v MJ [2023] NSWCCA 306 at [2]-[15] and [132]-[135]. As explained, the position is different with respect to whether mental health issues reduce moral culpability. That difference is the context of the sentencing judge’s differentiation at [68] and [69]. His Honour’s reference to “a limited causal connection” being established in relation to the maturity issues is best understood in context as meaning that no significant causal connection had been established. That understanding is supported by the fact that at the conclusion of his reasons his Honour said that “although I have not found a significant nexus between the offender’s background of childhood deprivation and the offending behaviour, I take it into account as part of the instinctive synthesis of sentencing” (at [80]). Regardless of the lack of a significant nexus, his Honour considered that the applicant’s compromised maturity and ability to learn from experience still should be taken to warrant some reduction in his moral culpability. The applicant did not argue that his Honour had failed sufficiently to take the applicant’s disadvantaged background into account.
So understood, his Honour did not err in taking a different approach as regards the applicant’s identified mental health concerns and his disadvantaged background. Causation was not established in any significant way for either. On the basis of the separate principles applicable to each factor, that conclusion excluded reducing moral culpability by reference to the mental health concerns. It did not exclude doing so by reference to the applicant’s disadvantaged background.
Given that this issue is relevant to resentence, we note that we also agree with his Honour’s conclusion as regards causation not being established with respect to the mental health concerns. It is not apparent from Dr Collins’ report, or from any other material before the Court, how the PTSD and unspecified personality disorder suffered by the applicant contributed to the commission of the offence in a material way. Dr Collins did refer to the applicant’s impulsivity and reactivity. If the events in question had occurred very quickly those characteristics might have been capable of being seen as making some contribution to the offences. The agreed facts disclose that the applicant and the co-perpetrator walked the short distance (some 475 metres) from the Stockton residence to the unit of the deceased. But the time it took between the agreement to assault the deceased being reached and the deceased being killed, and then the fire being lit, is not apparent. The sentencing judge said (at [57]), and we agree, that it is not possible to determine how long it was after the deceased was confronted by the applicant and co-perpetrator that he was killed, “whether it was a matter of seconds, minutes, or longer, although clearly it was no more than about an hour”. As the sentencing judge indicated, the agreed facts are too sparse to draw, on the balance of probabilities, the conclusion that the applicant sought.
[71] Counsel for the offender submitted that, consistent with the principles in De La Rosa, the offender’s mental health impairments, in particular his chronic PTSD, warrant reduced weight being given to specific and general deterrence and greater emphasis to promoting his rehabilitation. Similarly, the offender’s Bugmy considerations warranted less emphasis on generic deterrence.
[72] As is made clear in both De La Rosa in the last dot point in [177] and in Bugmy at [44], there may be countervailing considerations of protection of the community that operate on the fixing of the appropriate sentence. These are matters to be taken into account as part of the process of instinctive synthesis, together with the offender’s prospects of rehabilitation and how best that may be reflected in the structure of the sentence.
The applicant’s criticism was that it was unclear whether his Honour was accepting that he was a less appropriate vehicle for general deterrence and, even if so, that his Honour failed to give adequate reasons as regards how much weight was being given to that acceptance versus the “countervailing considerations”.
Where his Honour said at [72] that “[t]hese are matters to be taken into account as part of the process of instinctive synthesis” we understand him to be referring both to reduced weight being given to deterrence (as identified at [71]) and to there being countervailing considerations of protection of the community (as identified in the first sentence at [72]). His Honour was not required to spell out some notional degree of weight that was to be attributed to these matters.
Ground 2 is not made out. We set out our own views on these considerations below.
In his submissions directed jointly to the manifest excess ground and to resentencing, senior counsel for the applicant did not criticise the indicative sentence stated by the sentencing judge with respect to the damage property by fire charge (being 5 years 4 months). His criticisms were directed to the indicative sentence for the manslaughter charge (9 years). That criticism was substantially founded on the unsuccessful ground 1 challenge to the decision below. In any event, the resentencing exercise is a matter for this Court.
The maximum sentence for manslaughter is 25 years imprisonment. For the damage property by fire offence it is 11 years. Neither has a standard non-parole period.
Neither side challenged the facts summarised and found by the sentencing judge, save to the extent that the applicant did so pursuant to grounds 1, 2 and 4. Those challenges have been rejected.
As regards the objective seriousness of the manslaughter charge, as already noted “an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility”: Paterson at [33]; see also R v White [2025] NSWCCA 111 at [70]. Here, as addressed in relation to ground 1, the objective seriousness of what occurred is manifest in the facts themselves. Those facts merit being described as a serious example of the crime.
True it is that the applicant did not wield the knife; that potential use of the knife was not part of the joint criminal enterprise as agreed to prior to leaving the Stockton residence; and that he did not foresee as a possibility that his co-perpetrator would act with an intent to kill or cause grievous bodily harm. Nevertheless, he had agreed to participate in assaulting the deceased, and he chose to continue his participation even after he had learned that the co-perpetrator was armed with a knife. In so doing he realised the planned assault would be carried out in circumstances carrying an appreciable risk of serious injury being occasioned.
As the sentencing judge noted, it is significant that: the deceased was killed in his own home where he was entitled to feel safe; he was a 54 year old man attacked by two much younger males; the attack occurred in the early hours of the morning when the deceased was alone and vulnerable; the attack was on a person who had voluntarily provided accommodation for the applicant for a night or two whilst he was homeless; and there was some limited degree of planning of the assault.
With respect to the objective seriousness of the damage property by fire charge, senior counsel for the applicant appropriately accepted that this would merit being described as a serious example of the offence. As the sentencing judge indicated, it is significant here that: the offence was committed intentionally with the motive of avoiding criminal responsibility for the death of the deceased (albeit without pre-planning); that it manifested a disregard for the safety of others, where there was the obvious potential for injury or death to neighbours of the deceased who were asleep; and that there was substantial financial loss caused by the fire, where the applicant must have appreciated that substantial damage to the unit block was likely to result before the fire was discovered and brought under control. The applicant is fortunate that significant injury or loss of life was avoided by the happenstance of the passerby observing the fire at around 5:00am.
The orders of the Court are as follows:
Grant leave to appeal.
Appeal upheld.
Quash the sentence imposed in the Supreme Court on 6 December 2024 and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 10 years 6 months commencing on 5 October 2022 and expiring on 4 April 2033, with a non-parole period of 6 years 6 months expiring on 4 April 2029.
In compliance with s 25C of the Crimes (High Risk Offenders) Act 2006 (NSW), the applicant’s legal representatives are directed to advise him of the existence of the Act and its application to the manslaughter offence.
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Oliver
R [2025] NSWCCA 227
(2013) 249 CLR 571
(2010) 79 NSWLR 1
(2022) 109 NSWLR 82
(1936) 55 CLR 499
(2014) 252 CLR 601
(1979) 143 CLR 458
(2006) 66 NSWLR 566
(1988) 164 CLR 465
(2004) 60 NSWLR 168
(2000) 49 NSWLR 383
(2018) 266 CLR 1
The applicant and co-perpetrator returned to the Stockton residence together. At 5:05am, the applicant took his phone off airplane mode and sent a message to the deceased’s phone saying that he had only just woken up and that he would see him tomorrow.
At around 5:00am a passerby saw the fire on the bank of the river then noticed the fire in the unit. He rang 000 and went to the units to try to assist. Firefighters arrived by 5:15am. Residents from other units in the block were evacuated. The firefighters were not initially able to enter the deceased’s unit due to the intensity of the fire. The deceased’s body was later found in the apartment, severely burnt and partly covered by debris. A forensic pathologist subsequently concluded that the deceased died before the fire took hold in the unit and that three sharp force injuries were the cause of death. The remains of the blade of a knife were located with the bodily remains. The handle of the knife had been consumed in the fire. Examination of the knife showed the deceased’s DNA at four locations.
The applicant was interviewed by police on two occasions, on the second of which he denied being at the deceased’s apartment “that night, at any point”. He was arrested over a year later on 5 October 2022. He remained remanded in custody until the date of sentencing. He offered to plead guilty on 13 May 2024. He was thus entitled to a statutory utilitarian discount of 10 per cent: s 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). The Crown tendered evidence that the damage to the apartment block was $118,946.10 plus GST, noting that the fire had travelled through the roof cavity to a neighbouring apartment prior to it being extinguished.
The applicant entered his pleas on the basis that he was a participant in a joint criminal enterprise with the co-perpetrator to assault the deceased, but that it was not within his contemplation that there would be the intentional infliction of grievous bodily harm or death.
Dr Collins opined that the applicant’s symptoms were best explained by a diagnosis of chronic Post-Traumatic Stress Disorder (PTSD) as well as an unspecified personality disorder. She opined that the applicant’s pervasive adverse childhood experiences had significantly interfered with his self-development and psychosocial maturity. She was of the view that he had low psychosocial maturity as compared with those of his age and struggled with behavioural, impulse and emotional control. She also noted that individuals with that combination of conditions can “experience auditory hallucinations and heightened paranoia”.
The sentencing judge also noted that the letters of the offender’s mother and sister corroborated various aspects of the applicant’s history, including his behavioural issues at school, his sexual abuse, his father’s suicide and his substance abuse issues. The applicant was noted to have two children from a previous relationship with whom he was not in contact at the time of sentencing. It was noted that he was in contact with other members of his family and some friends at the time of sentencing.
The manner in which the sentencing judge dealt with assessing the objective seriousness of the two offences is addressed separately below (at [37]-[43]), given the importance of that topic for grounds 4 and 1 of the appeal.
In relation to moral culpability, the sentencing judge was satisfied that the history provided to Dr Collins established on the balance of probabilities that:
His Honour found, as regards setting a non-parole period, that special circumstances were established primarily because the applicant’s criminogenic factors required a long period of supervision, and also because his experience of custody was more onerous by virtue of his diagnosis of chronic PTSD.
In terms of calculating the sentence, his Honour held that while there was no significant nexus between his background and the offending, he indicated that he took it into account as part of the instinctive synthesis. The indicative sentence for the manslaughter offence, after taking into account the 10% discount for his plea, was 9 years. The indicative sentence for the property damage by fire offence was 5 years and 4 months, after applying the same discount. His Honour sentenced the applicant to an aggregate sentence of imprisonment of 11 years with a non-parole period of 7 years. The sentence was backdated to commence from 5 October 2022, which was the first day the applicant entered custody.
The Crown submitted that taking into account the sentencing judge’s remarks as a whole, his Honour did have regard to the applicant’s role in the manslaughter and the circumstances of the offence that were known to the court in assessing the objective seriousness of the offence. The Crown pointed to the sentencing judge’s remarks at [4], [50]-[51], [52], [65] and [67] in support of this position.
Turning to the applicant’s moral culpability, the profoundly disadvantaged and dysfunctional background of the applicant has been outlined, and acts to reduce his moral culpability. It is relevant that he was a relatively young man at the time of the offences, being then aged 21. Dr Collins’ conclusions about the negative effects of the applicant’s background on his psychosocial functioning and maturity – which we accept – have been noted above.
We also accept Dr Collins’ conclusions about the mental health concerns suffered by the applicant. As explained above, we are not persuaded that those issues played a causal role in his offending such as to reduce his moral culpability. However, we accept that they tend to reduce the weight to be given to general deterrence. We also accept that his mental health and psychosocial issues will tend to make his time in custody more onerous.
It is clear that such concerns may also militate towards giving more weight to the protection of the community and specific deterrence: see De La Rosa at [177], last dot point; Bugmy at [44]-[45]. Here, both the mental health concerns and the psychosocial maturity issues have that effect. Dr Collins referred to the applicant’s mental health conditions being “complex and enduring”, and referred to evidence of antisocial behaviour, impulsivity and reactivity. She noted that he has “displayed pervasive problems with impulse control”, and has problems with consequential thinking. She said he “continues to struggle with behavioural and emotional control” and that he has low psychosocial maturity as compared with those of his age. She opined, reasonably, that he will require considerable therapeutic and case management support to adjust back into the community.
Those aspects of the applicant’s condition must be viewed in the context of his criminal history which, although not long, includes: wielding a knife in a public place and stalk/intimidate in May 2019; threatening to stab his sister and then showing her his knife in June 2021; and producing a machete and swinging it at another person, in public, on 1 August 2021 five days after the subject offences.
In short, the applicant is reactive, impulsive, struggles to control his emotions, and he has manifested a willingness to carry a knife and threaten others with it. Given this history of wielding knives on a number of occasions over a two year period, and given his mental health conditions and psychosocial development, the evidence suggests that he will continue to represent a danger to the community. His behaviour was not constrained by being subject to CCOs nor by bail conditions. The fact that the subject offences occurred whilst on conditional liberty is an aggravating factor with respect to his subjective case.
Senior counsel for the applicant urged the Court to recall Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7. As Stephen J there said, to give “almost exclusive attention … to the notion of protection of the community against future danger from the applicant ... sacrifices the important factor of proportionality” (at 467). The imperative not to give excessive weight to protection of the community does not undermine the necessity of giving due weight to that important purpose of sentencing.
We note the applicant has not given any meaningful expression of remorse. The sentencing judge’s observation that the applicant has real challenges in terms of his rehabilitation could not be gainsaid.
There is one material change in the applicant’s circumstances since he was sentenced a year ago. The sentencing judge noted that the applicant had 28 entries on his prison record for the period since these offences, including for matters involving fighting, drugs and alcohol, intimidation and disobeying directions (at [28]). However, his Honour also noted that the applicant had been on the buprenorphine program since September 2023, following which he had not had a prison disciplinary issue involving drugs (at [74]). This Court was supplied with an affidavit from the applicant, dated 17 November 2025, the contents of which were not challenged by the Crown. He said that he had found the “Bupe program” helpful in dealing with his drug issues and he had not used drugs for two years, and this had had benefits in turn for his mental health. He also said that he had not had any gaol charges since June 2024. Thus his behaviour has improved, manifesting prosocial choices, and linked to his success in addressing his drug addiction. These circumstances give rise to a somewhat greater, if still guarded, hope for his rehabilitation prospects, with some correlative reduction in the risk that he may pose to the community.
There is no dispute about the need to apply a 10% discount by reason of the applicant’s guilty plea. The applicant does not dispute that no penalty other than imprisonment is appropriate. We take into account the need for denunciation of and accountability for the applicant’s serious offending.
We have considered the victim impact statement from the deceased’s sister, indicating that he was a loved son, brother, uncle and friend. She stated that the deceased was a happy man who battled and had beaten cancer in the last few years of his life. She said that the fire had destroyed all of the deceased’s personal items so they have lost items they could have remembered him by.
We have also considered letters provided by the applicant’s mother, sister and two former neighbours.
We accept that there are special circumstances, being that the applicant’s criminogenic factors require a long period of supervision and his experience of custody will be more onerous by virtue of his mental health conditions.
In light all of the considerations and all of the evidence before the Court we conclude as follows. For the manslaughter charge, we indicate a sentence of imprisonment of 8 years and 4 months. For the damage property by fire charge we indicate a sentence of imprisonment of 5 years 4 months. As regards issues of totality and accumulation, the second charge arose from the same set of circumstances. It nevertheless involved distinct and significant criminality. The applicant will be sentenced to an aggregate term of imprisonment of 10 years 6 months, commencing on 5 October 2022, with a non-parole period of 6 years and 6 months expiring on 4 April 2029.