R v Eaton

Solicitors: Office of the Director of Public Prosecutions Legal Aid Commission File Number(s): 2021/291989 Publication restriction: There is to be no publication of the name of the child victim or any information that may identify them. Decision under appeal Court or tribunal: Newcastle District Court Jurisdiction: Criminal Date of Decision: 09 December 2022 Before: McGrath SC DCJ File Number(s): 2021/291989

HEADNOTE [This headnote is not to be read as part of the judgment] On 9 December 2022 the respondent, Tamarah Eaton, was sentenced in the Newcastle District Court to 2 ½ years imprisonment with a non-parole period of 18 months, for one offence of aggravated dangerous navigation causing the death of a four-year-old child, under s 52B of the Crimes Act 1900 (NSW). The facts of the offence are summarised as follows. The respondent was addicted to alcohol and had one previous offence of high range drink driving. On the morning of 1 June 2021, the respondent drank a bottle of vodka and then went fishing with her sister, her sister's friend and the victim. The respondent got into a single person kayak with the victim and her dog. Neither the respondent nor the victim were wearing life jackets. The respondent navigated the kayak away from the shoreline and the kayak capsized. The victim drowned, while the respondent made it back to the shore. The respondent was found to be under the influence of alcohol and her blood and alcohol content was tested to be 0.250g/ml and 0.240g/ml (almost twice the blood alcohol limit). The respondent could not remember how the kayak capsized or the victim drowning. The sentencing Judge delivered judgment ex tempore. His Honour referred to the guideline judgment for dangerous driving and initially found that the offence fell within the "higher end objective seriousness". The sentencing Judge then considered the respondent's subjective case, including her deprived background and mental health conditions and found that her moral culpability fell within the mid-range and her subjective case reduced the objective seriousness of the offence to the mid-range. The Director of Public Prosecutions appealed against the respondent's sentence on two grounds: 1. The sentencing Judge erred in his assessment of the objective seriousness of the offence. 2. The sentence was manifestly inadequate. The Director submitted that the sentencing Judge acted on wrong principle and took an irrelevant matter into consideration when finding that the respondent's subjective case reduced the objective seriousness of the offence to mid-range. The Director also contended that his Honour: failed to take into account the absence of any effort by the respondent to render aid to the victim; did not have regard to the aggravated nature of the offence when using the guideline judgment; erred by giving a further discount for remorse; and "double counted" when finding that the respondent's subjective circumstances allowed for a reduction of her non-parole period. The Court finding error on the first ground of appeal, exercising its residual discretion to decline to intervene and dismissing the appeal, held (per Hamill J, Lonergan and Ierace JJ agreeing): In respect of ground 1: 1. "Objective seriousness" and "moral culpability" are "separate but related" concepts. Matters personal to an offender may impact on an assessment of objective seriousness, but it requires more than "a simple or indirect causal connection between the relevant subjective feature of the case and the offending". The respondent's deprived childhood and mental health issues impacted on her moral culpability but did not impact on the objective criminality of the offence: [45]-[54], [91], [92]. DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37; Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38; Chandler v R (2023) 103 MVR 392; [2023] NSWCCA 59, applied; Camilleri v R [2023] NSWCCA 106, distinguished. 1. The guideline judgment uses the expression "moral culpability" when referencing the "objective criminality" of the offending. The guideline judgment was decided in 2002 and since then, the Court has clarified that moral culpability and objective seriousness are different concepts. By adopting the language of the guideline judgment, the sentencing Judge erred in using the expression "moral culpability" synonymously with "objective gravity": [56], [91], [92]. R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343, considered. 1. Sentencing judges are not required to place the objective seriousness of offence on a putative scale. Since the sentencing Judge correctly identified the relevant objective and aggravating factors of the offence, the error made had little or no impact on the final sentence imposed: [57]-[59], [61], [91], [92]. FL v R [2020] NSWCCA 114; Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162; Manojlovic v R; R v Manojlovic [2020] NSWCCA 315, applied. 1. The sentencing Judge did not err in finding that there was insufficient evidence to determine whether the respondent failed to render assistance to the victim: [62]-[64], [91], [92]. In respect of ground 2: 1. The sentence fell within an appropriate sentencing range. The sentencing Judge used the guideline judgment appropriately and made reference to the increased maximum penalty and the respondent's intoxication as an aggravating circumstance. It was open to the sentencing Judge to find that the respondent was remorseful and that her non-parole period should be reduced due to her personal circumstances, the nature of the offence and her mental health issues: [65]-[82], [91], [92]. In exercising their residual discretion to decline to intervene: 1. If the sentence is within the appropriate range, the Court should not interfere to increase the penalty despite the finding of error. The sentence was not inadequate and having regard to the respondent's progress in custody and her difficulties in obtaining medical treatment, it should not be increased: [83]-[89], [91], [92]. CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9; Manojlovic v R; R v Manojlovic [2020] NSWCCA 315; Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114, applied.

JUDGMENT

1. HAMILL J: The Director of Public Prosecutions appeals against the asserted inadequacy of the sentence imposed on Tamarah Eaton ("the respondent") by Judge McGrath SC in the District Court sitting in Newcastle on 9 December 2022. The respondent was sentenced for one count of aggravated dangerous navigation occasioning the death of a four-year-old child. Neither the child's name nor any information likely to lead to their identification can be published. [1] However, their name is known to the members of the Court, as is the devastating grief and trauma caused by their death which resulted from the respondent's gravely reckless and irresponsible criminal conduct. The dignity of the child's family and loved ones, many of whom kept a quiet vigil over the proceedings both in this Court and in the District Court, and the tragedy of this case to them and to the community, was acknowledged as the Court reserved its decision on 24 May 2023. It is an intensely sad case.
2. The sentencing proceedings were heard on 9 December 2022. The facts were agreed and the Prosecutor and the respondent tendered separate bundles of evidentiary material. No oral evidence was called but the child's mother read a moving victim impact statement courageously in open court. Counsel provided the District Court with written and oral submissions. The case raised difficult legal issues and some sensitive personal matters. The submissions concluded late on a Friday afternoon but Judge McGrath resolved to proceed immediately to sentence "out of fairness to [the child's] family and friends" and in order that the respondent should know her fate. [2] The ex tempore sentencing judgment concluded after normal court hours and the respondent was taken immediately into custody where she has remained since.
3. His Honour imposed a full-time gaol sentence, applying (by extension) the "first limb" of a guideline judgment relating to the offence of dangerous driving occasioning death. [3] His Honour applied a statutory sentencing discount of 25% for the utilitarian value of the applicant's early plea of guilty and imposed a total sentence of 2½ years with a non-parole period of 18 months. The sentence commenced on the day it was imposed and the respondent will be eligible for release to parole at the conclusion of the non-parole period on 8 June 2024.
4. On 19 December 2022 the Director notified the respondent's solicitors that she was "considering an appeal" against the sentence. A notice of appeal pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) was filed on 3 January 2023. This was within the time limit provided for by the Court's rules. [4] The Director relied on two grounds of appeal by amended notice dated 17 April 2023: "1. The sentencing judge erred in his assessment of the objective seriousness of the offence. 2. The sentence pronounced is manifestly inadequate."

The impact of the crime on the child's loved ones

1. It is impossible to contemplate the objective seriousness of the offence, or to assess the question of whether the sentence was inadequate, without first considering the devastating impact the respondent's reckless criminality has had on the family of the child.
2. The victim's mother read a victim impact statement on behalf of herself and her husband. The couple have five children and the victim was their youngest child. They spoke of the extremely tight bond that their family shares and that their daughter was "the final piece in their family." She was the light of their lives. Their daughter's death has changed their lives "forever and for the worst." It has "[Shattered their] minds, body, and souls". The mother described that on 1 June they rushed to the hospital when told by police that their daughter had been in an accident. She described the agonizing wait in the hospital for her and her family, and the "incredible, indescribable" and "heartbreaking" pain when they learnt their daughter was dead. The parents had to plan the little girl's funeral, following Maori protocols, while not knowing "the truth behind [their] daughter's death". They laid their daughter to rest on 5 June. More than one thousand family, friends, community members, supporters and strangers touched by this tragedy attended the funeral.
3. The child's mother addressed the respondent directly, telling her: "[Y]ou are the one who took our daughters life … No, we weren't present. No, our baby could not hear us nor feel our touch as she struggled. My cousin trusted you to look after her and you abused this trust. Her death was not one that should have ever happened ... We were not prepared. This was not an accident but you … you selfishly stole her from us. You stole her life. You broke our bond. You destroyed my other children's emotional wellbeing, and you robbed them of their baby sister and their little best friend."
4. The parents continue to experience indescribable pain, sadness and anger every day. They constantly worry for their children's safety and feel shame that they were not able to protect their daughter. Every member of the family has been affected. They suffer from nightmares and sleeplessness. Their oldest son has become withdrawn; their oldest daughter suffers from anxiety, uncontrollable anger and sadness and is seeing a counsellor; their middle daughter struggles to control her anger and bottles up her emotions and their 8-year-old daughter suffers from nightmares and inconsolable crying.

The facts of the offence

1. The facts of the offence were set out in an agreed statement of facts and were summarised by the sentencing Judge at pages 2-11 of the sentencing judgment. Counsel for each party provided a summary of the facts in their written submissions. For the purposes of this judgment, the summary provided by counsel for the Director will suffice to place the grounds of appeal, and the issues raised within those grounds, in an appropriate context. The appellant's summary of the facts was as follows: [6] "The respondent had been abusing alcohol since 2019 after the death of a friend. It got to the point where she was consuming approximately a 750ml bottle of vodka every day. On 8 February 2021, the respondent was charged with driving with the high range prescribed concentration of alcohol in her system, and on 10 May 2021, she was sentenced to 10 months imprisonment to be served by way of an intensive correction order in respect of that offence. In late May 2021, the respondent was admitted to the Mater Hospital where she received treatment for alcoholic hepatitis and cirrhosis of the liver. She was discharged into the care of her mother on 28 May 2021. In the early hours of 1 June 2021 (the date of the offence), while staying overnight with a friend, the respondent consumed a large amount of vodka which she had concealed in a green Tupperware bottle.3 The respondent later admitted having hidden a bottle of alcohol in the garage of her mother's house which she decanted into the Tupperware bottle and said that she drank all but a small amount of its contents (gesturing to indicate that two inches of liquid was left in the bottle). Later the same morning, after breakfast, the respondent organised to go fishing with her younger sister, Naomi Medlin. Ms Medlin in turn invited her friend, Brittany Hunt, who had the care of the victim for the day while her parents worked. The victim, who was 4 years old, could not yet swim well. After collecting three kayaks from the home of the respondent's estranged husband, Ms Medlin, together with Ms Hunt and the victim, collected the respondent from her mother's house and the group went to a public jetty situated at Mallabula Point on the Karuah River. The weather was sunny and there was little to no wind. The water was calm. The respondent got into the larger of the three kayaks which, like the others, was a single person kayak. She sat on the seat and controlled the paddle. The victim and the respondent's dog sat in front of her. A photo that was taken of the victim by the respondent later in the trip shows the victim perched at the bow of the kayak facing the respondent with the dog between them. The respondent also took with her, in the kayak, her handbag containing the green Tupperware bottle and various items of fishing gear including a tackle box and rod. Ms Hunt and Ms Medlin realised that the remaining kayaks were too small and would not hold their weight. They fished from the shore for a period before leaving to get lunch. The respondent, the victim and the dog remained in the kayak. The respondent initially fished close enough to shore to throw bait to Ms Hunt and Ms Medlin, but by the time the two women left to get lunch, she was about 100m away. Ms Medlin called the respondent by phone to tell her they were leaving. After Ms Medlin and Ms Hunt left, the respondent navigated the kayak further away from the jetty. A photograph taken by the respondent at 1.08pm was found to have been taken about 900m east of Mallabula Point in a position not visible from the jetty. When Ms Medlin called the respondent upon her return to the jetty at 1.21pm, the respondent told her that she was on her way back and that they were about 5 minutes away. Ms Medlin called the respondent again at 1.34pm because she had not returned and was not in sight. The respondent reported that they were stuck on oysters and were on their way back. The victim could be heard talking in the background. Between 1.36pm and 1.58pm, the respondent caused the kayak to overturn, forcing the victim and the dog to fall into the water. Both drowned. The respondent managed to swim to shore. Ms Hunt tried a number of times to call the respondent but was unsuccessful. At about 2.04pm, having walked around the point, she saw the overturned kayak. A short time later, she saw the respondent lying on her back in shallow water on oyster-covered rocks. Ms Hunt asked the respondent where the victim was. The respondent opened her eyes but did not respond. Ms Hunt continued to yell at the respondent to try and ascertain the whereabouts of the victim. The respondent tried to get up but stumbled and said she could not get up. Ms Hunt arranged for an ambulance to be called. At 2.14pm, Ms Hunt saw the victim face down in the water about 50m from the shoreline. She swam out, brought the victim to shore and commenced CPR. She screamed for help but received no response. The respondent remained in the same position in the shallow water. Ms Hunt continued in her efforts to revive the victim. She was later assisted by police officers and medical personnel who had been airlifted into the location. The victim was pronounced dead as she was being transported to hospital. Meanwhile, Ms Medlin came upon the respondent who was hysterical and crying. She asked the respondent where the victim was. The respondent did not appear to understand the question and began repeating it. She was observed to be screaming unintelligibly by one of the first police officers on the scene, Senior Constable Withers, as well as by water police who arrived at the location at 2.47pm. The kayak was retrieved from the water. The respondent's handbag, with the green Tupperware bottle inside, was still in the kayak. The bottle was empty. Water police who attempted to converse with the respondent observed her speech to be delayed, slurred and at times incoherent. They formed the view that she was under the influence of alcohol. The respondent later spoke to another officer, Senior Constable Hogan, who noticed an extremely strong smell of alcohol emanating from the respondent and that her eyes were yellow. The respondent was transported to John Hunter Hospital where she was treated for lacerations to her legs and feet. She was suffering from hypothermia, her behaviour was elevated and erratic, and she was non-verbal, agitated and distressed. Blood samples taken from the respondent at 6.35pm and 9.45pm returned readings of 0.250g/ml and 0.240g/ml respectively. The respondent remained in hospital until 9 June 2021. She gave numerous accounts of the incident over that time. In those accounts, and when interviewed by police on 17 August 2021, the respondent denied any recollection of the point at which the kayak overturned, although she did remember telling the victim that they had to head back and receiving a phone call from Ms Medlin telling her that they were coming back with lunch. The respondent told the police that she had no idea what happened to the victim. She admitted having consumed an amount of vodka from the Tupperware bottle in the early hours of the morning, before breakfast, but denied drinking any vodka after that. She acknowledged that she knew that the kayak she was navigating was designed for one person. Alen Lin, a forensic pharmacologist, reviewed the evidence including the results of the blood samples taken from the respondent. He opined that, if it were accepted that she had not consumed any alcohol since the early hours of the morning, the respondent would have reached peak blood alcohol concentration (BAC) well before the point at which the vessel capsized. At the time she overturned the kayak, the respondent's BAC would have been 'not less than 0.297g'. Her ability to navigate at such a level would have been 'very substantially impaired'."

The respondent's personal circumstances

1. The respondent's background was summarised in a neuropsychological report by Ms Jillian McMillan dated 12 July 2022 and psychiatric report by Dr Richard Furst dated 26 September 2022. These reports were tendered by the respondent's counsel at the sentencing hearing. Ms McMillan conducted a 4-hour assessment with the respondent via audio visual link ("AVL") on 11 May 2022 and Dr Furst conducted a 90-minute assessment with the respondent via AVL on 26 July 2022. Both experts reviewed the respondent's medical history and the facts on sentence.

Personal History

1. The respondent was a 35 year old Indigenous woman at the time of the offence. She was 36 at the time of sentence. Her family has a history of bipolar disorder, depression, alcoholism, epilepsy and intergenerational trauma.
2. The respondent's parents divorced when she was 7 and she lived with her stepfather and her siblings. As a child, she was exposed to domestic violence and excessive alcohol use between her mother and her stepfather. Between the ages of 7 and 14, the respondent and her siblings were neglected and emotionally abused by their mother. The responsivity for taking care of her siblings, including her older brother who had cerebral palsy, was cast upon her as a very young teenager. The respondent moved in with her biological father at the age of 14 due to the neglect she experienced while living with her mother. She then moved in with her boyfriend at the age of 15. She experienced physical and verbal abuse at her boyfriend's hands.
3. The respondent had poor attendance at school. She had bulimia during her early years of high school which contributed to her poor attendance. She left school during year 11 and had then worked as a hairdresser, lettuce grower, furniture removalist and financial consultant for Harvey Norman. Prior to the offence she was working as a waitress. Her mental health problems impacted on her ability to maintain employment.
4. The respondent was married for 19 years and has three children. She experienced physical and mental abuse during her marriage and separated from her ex-husband in 2021. Her children live with her ex-husband. The respondent was living alone before she was sent to gaol for the present offence.
5. Ms Easton first drank alcohol at the age of 13. Her alcohol use escalated in 2018 after she became aware of her husband's infidelity. In December 2019, her best friend committed suicide and she started to consume up to 1 litre of vodka per day and became dependent on alcohol. The respondent said that, despite the amount of alcohol she drank, she never felt intoxicated. She experienced "shaking and pain" and "vomiting" if she stopped drinking. Her heavy drinking caused her to have memory issues, black-outs and accidents.
6. The respondent smoked cannabis since she was 14 years old and used amphetamines from the age of 17 until she was 19. Her cannabis use decreased in her twenties and thirties, and she reported that she only smoked cannabis 2-4 times in the 2 years leading up to the offence.

Assessment and opinion

1. Ms McMillan and Dr Furst conducted various tests with the respondent.
2. Ms McMillan assessed the respondent to have a low level of intellectual functioning and a "patchy executive and verbal memory dysfunction". Dr Furst assessed the respondent to have severe symptoms of depression and anxiety.
3. Ms McMillan stated that the respondent's "developmental, psychosocial medical and psychiatric history is complex" and was an underlying cause for her "executive and verbal memory dysfunction". She believed it was likely the respondent was "suffering from a number of mental health conditions", such as seizure disorder, which could have "impaired her judgment and thinking". However, Ms McMillan's final opinion was that it was not possible to determine whether the respondent suffered a seizure or other disorder "prior to or at the time of, the kayak capsizing on 1 June 2021", and further investigation was needed to formally diagnose and treat her.
4. Ms McMillan noted that the respondent experienced several significant events before the offence including "the suicide of her best friend, escalating misuse of alcohol and alcohol dependence, suicide attempts, the acrimonious breakdown of her marriage and conflict regarding access to her children and a high range PCA offence". Her opinion was that there were significant psychological and psychiatric mitigating factors applicable to the respondent including her "complex psychiatric history" and "history of trauma (both intergenerational and recent) and associated disadvantage she has experienced throughout her life".
5. Dr Furst's assessment was that the respondent suffers from depression, insomnia, nightmares, anxiety, bipolar disorder and post-traumatic stress disorder (PTSD). He stated that her "developmental hardship[s]" meant that she had a greater propensity towards alcoholism and addiction, bipolar disorder or another serious mental illness, PTSD, and drug and alcohol use as a means of coping under stress. He said that her background elucidated the "principles of mitigation by the High Court of Australia in the matters of Bugmy and Fernando".
6. Dr Furst noted that on the day of the offence the respondent had not fully recovered from liver failure and was taking a high dose of steroids that were known to cause mood disturbances and insomnia. His opinion was that the steroids "could have affected her mental state, such as making her more disinhibited, causing an impairment in her judgement/consequential thinking and contributing to her poor decision to drink a bottle of vodka on the morning of her outing with her sister". He also believed that the medication would have made her less tolerant to alcohol and "produce[ed] a higher level of cognitive impairment when intoxicated, reduced reflexes, reduced coordination and contribut[ed] to the tragedy that ensured".

Criminal History

1. The respondent has a limited criminal history, which includes a previous criminal conviction for larceny in 2015 for which she was given a 2-year bond.
2. However, as emphasised by the appellant, the respondent was charged with high range drink-driving on 8 February 2021. On 10 May 2021, just three weeks before the current offence, she was sentenced to an Intensive Correction Order (ICO) in the Raymond Terrace Local Court for 10 months. The ICO required her to report to Community Corrections and attend drug and alcohol treatment and/or rehabilitation as directed. It expired on 9 March 2022.

Remorse

1. Ms McMillan reported that the respondent had been "devastated about the death of the child". Dr Furst reported that the respondent said, "she deeply regrets her actions and feels horrified" and that it is "the first thing she thinks about every day when she wakes up". She was tearful when talking about the offence.
2. The respondent wrote a letter to the sentencing Judge dated 7 December 2022. In the letter the respondent stated she was "truly and unreservedly sorry" and "takes full responsibility for this tragedy". The respondent said she thinks of the victim every day and "wish[es] that it was [her] life that was taken instead". She also said that she, "cannot even begin to imagine how this has affected her family" and "hope[s] that one day [the victim's] family can forgive her". The respondent also apologised for the trauma she caused to the first responders and other individuals who witnessed the incident.
3. Judge McGrath accepted that the respondent was truly remorseful.

Prospects of Rehabilitation

1. Before she went into custody, it was noted that the respondent completed a rehabilitation programme at Jarrah House, was abstinent from alcohol with only one incident of relapse, attended medical appointments and was complying with her regime of prescribed medication. She had stable accommodation and pro-social family support. Both Dr Furst and Ms McMillan found that the respondent was motivated to engage in treatment.
2. Dr Furst stated that the respondent requires psychiatric treatment and psychological treatment for her trauma, guilt, shame and PTSD. Dr Furst also recommended that the respondent undertake drug and alcohol treatment and be prescribed mood-stabilising and anti-depressant medication. Ms McMillan said that since the respondent used alcohol to manage her problems in the past, she needed to develop other more pro-social strategies for problem solving.
3. His Honour described the respondent's prospects of rehabilitation as "guarded at best". [7] That was not the most generous evaluation in view of her remorse and more recent efforts. However, the finding was not challenged and well justified by the chronic nature of the respondent's mental health issues and alcoholism, as well as her commission of the offence just weeks after she was placed on the ICO for a high range PCA offence.

Hardship in custody

1. Dr Furst was of the opinion that the respondent was likely to struggle to "cope in prison" and was more vulnerable to threats, intimidation, and violent incidents than other inmates, because of her bipolar disorder and PTSD. He said the prison environment was more likely to exacerbate her mental health problems and increase her risk of suicide. Her shame and stress levels may increase if other inmates find out her offence caused the death of a child.
2. Ms McMillan said the respondent required further assessment to formally diagnose and treat her mental health conditions. She believed that the level of assessment and treatment would not be available to the respondent while incarcerated because of the limited mental health resources available to prisoners in a custodial setting.

Some findings of the sentencing Judge

1. The sentencing Judge made the following findings regarding the respondent's subjective case: 1. Her deprived background and mental conditions mitigate to some extent her moral culpability for the offending, which occurred under the substantial influence of alcohol and in the context of longstanding alcoholism. Her moral culpability was within the mid-range. 2. At the time of the offending, the respondent was suffering from depression in the severe range, anxiety in the severe range and a bipolar affective disorder. At the time of sentencing, she was also suffering from PTSD because of the consequence of her offending. Judge McGrath noted the strong association between bipolar disorder and alcoholism described by Dr Furst and highlighted Dr Furst's opinion that the medication the respondent was taking for liver failure may have caused an impairment to her judgment or consequential thinking and contributed to her decision to drink a bottle of vodka on the night before the offence. 3. Imprisonment would be more onerous for the respondent because of her mental conditions. 4. Great weight should be placed on the need to rehabilitate the respondent to reduce her risk of reoffending and achieve protection of the community. As I have said, his Honour found her prospects of not reoffending were guarded at best without undertaking detailed and intensive treatment and rehabilitation; her rehabilitation is the only way to protect the community from further offending. 5. The need for general deterrence was reduced but not eliminated. Though there was a very high need to deter people from engaging in water activities when heavily intoxicated and when entrusted with young children, the respondent was not a great vehicle for the enactment of the principles of general deterrence. 6. There was a heightened need for specific deterrence. The respondent was aware that she was under an ICO for driving under the substantial influence of alcohol and that her alcoholic condition had caused her admission to hospital. 7. Despite the powerful subjective case, the requirement of [adequate] punishment loomed large for taking the life of a young child in the circumstances in which the respondent did. 8. The respondent expressed genuine remorse and apologised to the child's family, the witnesses and first responders.

Ground 1: The sentencing Judge erred in his assessment of the objective seriousness of the offence.

1. The Director submitted that the sentencing Judge erred in his assessment of the objective seriousness of the offence. While acknowledging that this assessment was "quintessentially a matter for the sentencing Judge," [8] it was submitted that "House error" infected Judge McGrath's finding of the objective seriousness of the offence. [9] There are two aspects to this complaint. The first is that his Honour acted on a wrong principle or allowed an extraneous or irrelevant matters to guide him by reducing the assessment of objective seriousness by reference to matters personal to the respondent. The second is that his Honour failed to take into account a material consideration namely "the absence of any effort by the respondent to render aid to the victim".

Assessing objective gravity by reference to matters personal to the respondent and her moral culpability

1. A vexing issue for sentencing Judges, and for the lawyers appearing on both sides of criminal cases, is the interaction between the necessary assessment of the objective seriousness of an offence and the extent to which that assessment is informed by the "separate but related" concept of "moral culpability". [10] A subsidiary controversy is the extent to which, if any, matters personal to an offender might impact on the proper assessment of the objective seriousness of an offence. This Court's judgments on these issues do not always speak with one voice, and there is often a blurring of the terminology and a conflation of the concepts. The present case provides an acute example of the second of those problems.
2. In DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156, [11] this Court (Beech-Jones CJ at CL, N Adams and Cavanagh JJ) explained authoritatively the way the concepts interact although there remains room for debate about the way the principles operate in particular cases and factual circumstances. [12]
3. The appellant referred to the way the sentencing Judge proceeded from an assessment that "the culpability falls within the higher end of objective seriousness" [13] to a finding that the case "falls within the mid-range of moral culpability and the mid-range of objective seriousness" [14] by reference to subjective features like the respondent's deprived background and her mental health issues. [15] If there is any doubt about what the sentencing Judge did, it is removed by quoting the full passage from the judgment (with my emphasis): "As noted, applying the factors as they were applied by the Court in Buckley to culpable navigation, when I look at Ms Eaton's level of inexperience in using the kayak, the degree of irresponsibility in agreeing to navigate the kayak with the small child and dog in it at the time, the fact that [the young child] was not wearing a life jacket and could not swim, I find that in all the circumstances, including the reductions in moral culpability for the subjective facts that I have mentioned, her culpability for the offence is in the mid-range of objective seriousness."
4. The respondent submits this approach was principled and that a variety of authorities to which reference was made "make it clear that this assessment of "objective seriousness" can include matters personal to an offender if they are causally related to the offending." [16] While there is little doubt that Judge McGrath attempted to proceed in a principled way, I am unable to accept the respondent's submission that the transition from an assessment that the objective criminality was towards "the high end" to an acceptance that it fell within "the mid-range" was justified based on the matters personal to the respondent.

The failure to take into account the respondent's failure to attempt to save the child

1. The appellant also asserts that the sentencing Judge erred by failing "to take into account the absence of any effort by the respondent to render aid to the victim". I am unable to accept this part of the Director's argument. Judge McGrath identified the issue as one of potential relevance but proceeded, correctly, on the basis that there was insufficient evidence to establish the factual finding upon which it is based. There was no independent witness of what had happened after the kayak capsized and its occupants landed in the water, and the respondent could not remember what happened. The Prosecutor at first instance submitted in writing that there was a high level of "moral culpability" (presumably using the expression in the sense it was used in the guideline promulgated in Whyte) for a variety of reasons including: "(e) There is no evidence of any efforts made by the offender directly after the incident to assist or call for assistance."
2. This submission was discussed at the hearing: "PROSEUCTOR: … There just no evidence of any attempt to assist [the child]. HIS HONOUR: Accepting the only people who knew what happened in this tragedy were [the child] and the offender, who says she has no memory, and the experts provide an opinion as to why that might well be so because of immediate trauma and then post-traumatic stress; but if there's an absence of evidence, I can't find that against the offender, can I? PROSECUTOR: I certainly wouldn't ask you Honour to find as a fact that there were none, but certainly there's nothing in mitigation - perhaps, is a different way of putting it - to say that there is no concentrated efforts, but I accept what your Honour says. There is certainly no witness or anything that could suggest that there was nothing done at all."
3. The Prosecutor's concession was fair and correct, and there is nothing in the sentencing judgment to suggest that his Honour did other than to act on it. It is true, as the appellant submitted, that the observations of the offender afterwards suggested she would not have been capable of assisting the child, but that does not lead to a conclusion that she failed to do so. The reality is that neither the sentencing Judge, nor this Court, know what happened after the kayak capsized and what efforts, if any, the respondent made to find the child or save her. The situation can be contrasted with a driving case where the offender leaves the scene. I discern little substance in this aspect of the Director's complaint.

Ground 2: The sentence pronounced is manifestly inadequate

1. To succeed on this ground of appeal the appellant must demonstrate that the sentence is manifestly or plainly wrong and unjust. There is no single correct sentence. Appellate courts must not substitute its own opinion of what constitutes an appropriate sentence and must pay proper regard to the wide discretion entrusted to the sentencing judge. In my assessment, the sentence settled upon by Judge McGrath fell comfortably within an appropriate sentencing range. However, it is necessary to address some specific issues raised in the appellant's submissions which are said to explain why the sentence imposed on the respondent was manifestly inadequate.
2. The appellant submitted that the sentencing Judge erred in applying the guideline Judgment in Whyte. Counsel correctly observed that the guideline applied to the offence of dangerous driving occasioning death (Crimes Act 1900 (NSW), s 52A(1)), an offence carrying a maximum penalty of 10 years whereas the offence charged against the respondent was aggravated dangerous navigation occasioning death, an offence carrying a maximum penalty of 14 years (Crimes Act, s 52B(2). In his judgment establishing the guideline, Spigelman CJ said that where the aggravating form of the offence under s 52A(2) is charged "an appropriate increment to reflect the higher maximum penalty, and what will generally be a higher level of moral culpability, is required." [21]
3. The appellant is correct to submit that the sentencing Judge did not refer to this part of the guideline. However, his Honour was aware of the increased maximum penalty, made extensive reference to the aggravating circumstance and level of the respondent's intoxication, and delivered his extensive and thoughtful judgment ex tempore. I do not accept that this omission affected his Honour's determination of the appropriate penalty to which the respondent should be subjected. Further, several matters should be emphasised about the guideline judgment in Whyte.
4. Whyte was a restatement, revision and modification of the earlier guideline judgment in R v Jurisic. [22] The revision was necessary because of the High Court's decision in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 which overturned this Court's guideline judgment relating to drug importation. The revision in Whyte emphasised that the guideline was no more than a "check" to assist sentencing judges and to modify the language in which the Jurisic guideline, which "may be seen to have an undesirably prescriptive tone", [23] was expressed. The language employed in Whyte was considered to be seen as not "prescriptive". Spigelman CJ repeatedly made this point. With no intention to criticise the appellant's helpful submissions in the present case, there was a hint at times that the guideline judgment was being used in an unduly prescriptive way.

The residual discretion

1. Because error has been established under ground 1, the Court must decide whether to allow the appeal and re-exercise the sentencing discretion or to apply its "residual" discretion not to intervene.
2. In CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9, French and Gageler JJ said at [33] - [34]: "Descriptions of the discretion expressly so conferred on the Court of Criminal Appeal as 'residual' ought not to be misunderstood. To enliven the discretion, it is incumbent on the appellant in an appeal under s 5D to demonstrate that the sentence pronounced by the court of trial turned on one or more specific errors of law or of fact, or, in the totality of the circumstances, was unreasonable or plainly unjust. The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised. Accordingly, as Heydon JA succinctly put it in R v Hernando: [25] 'if [the Court of Criminal Appeal] is to accede to the Crown's desire that the respondent be sentenced more heavily, it must surmount two hurdles. The first is to locate an appealable error in the sentencing judge's discretionary decision. The second is to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.'"
3. Kiefel, Bell and Keane JJ said at [54]: "The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence. Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as 'the residual discretion'. As French CJ and Gageler J explain, the discretion is residual only in that its exercise does not fall to be considered unless House error is established."

Orders

1. I would make the following order: 1. Dismiss the prosecution appeal under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentence imposed in the District Court on 9 December 2022.
2. LONERGAN J: I agree with Hamill J.
3. IERACE J: I agree with Hamill J.

Endnotes

1. Children (Criminal Proceedings) Act 1986 (NSW), s 15A.
2. Tcpt, 9 December 2022, p 21.
3. Regina v Michael Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 at [206]-[214] ("R v Whyte"), R v Reynolds; R v Small [2010] NSWSC 691 at [98], Buckley v R; R v Buckley [2012] NSWCCA 85 at [34]-[41].
4. Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5(3).
5. Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3), and see, for example, Sumpton v R [2016] NSWCCA 162 at [153]-[154]; R v Halloun [2014] NSWSC 1705 at [45]-[46]; R v Hines (No 3) [2014] NSWSC 1273 at [67]-[84].
6. Appellant's written submissions dated 17 April 2023, [11]-[27].
7. Tcpt, 9 December 2022, p 25 ("Sentencing Judgment").
8. Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ) and [46] (Simpson J, as her Honour then was).
9. House v The King (1936) 55 CLR 499; [1936] HCA 40.
10. DS v R; DM v R (2022) 109 NSWLR 82; [2022] NSWCCA 156 at [77].
11. Ibid at [63]-[96].
12. See, for example, the judgments in the case of Camilleri v R [2023] NSWCCA 106 at [13]-[22] (Adamson JA dissenting), [135]-[146] (Hamill J) and [204]-[216] (Cavanagh J).
13. Sentencing Judgment at p 18
14. Sentencing Judgment at p 25.
15. Sentencing Judgment at p 28.
16. Reference was made in the respondent's written submissions to R v AA [2017] NSWCCA 84 at [55]; R v Yun [2017] NSWCCA 317 at [47], [56]; Tepania v R [2018] NSWCCA 247 at [112]; Kelley v R [2021] NSWCCA 173; (2021) 97 MVR 74 at [39]; Rossall v R [2021] NSWCCA 200 at [100]; Paterson v R [2021] NSWCCA 273.
17. Chandler v R (2023) 103 MVR 392; [2023] NSWCCA 59 at [48].
18. R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 ("Whyte").
19. Ibid at [204]. The exceptions were the youth of the offender, their lack of criminal record and the timing of their plea of guilty.
20. Ibid at [216]-[217].
21. Whyte at [232].
22. R v Jurisic (1998) 45 NSWLR 209.
23. Whyte at [227].
24. Bresnahan v R [2022] NSWCCA 288 at [150]. Her Honour was in dissent in the result but nothing in the passage quoted, or the words of Harrison J, can be gainsaid.