R v Tailford

Supreme Court of NSW|2021-06-04|Before: Rothman J, Gleeson CJ, Legislation Amendment J

Solicitors: Office of the Director of Public Prosecutions (NSW) (Crown) Legal Aid NSW (Accused) File Number(s): 2019/00068412

The unlawful taking of human life

The criminal law generally punishes conduct that is contrary to the requirements imposed by the legislature for the orderly relations between humans and society. In the area of assault, the consequences of the conduct, together with the intent involved, is the determinant of the seriousness of the offence and the punishment to be imposed. Thus, an assault that would otherwise be a common assault ceases to be in that category when damage is occasioned, and, if really serious bodily injury is caused, there is a more serious offence and more serious consequences in the sentence to be imposed.
In this instance, there has been an assault with a weapon which has caused the death of Ricky Eggins. There was, on the verdict delivered by the jury, no intention to cause really serious injury.
Ricky Eggins was someone's partner; someone's child; and a sibling. Nothing can return him to the family that he has left behind. Nothing that the Court now says in these remarks should be taken as anything other than an understanding of the heartbreak occasioned to his family by his death.
The sanctity of human life is an important aspect of the criminal law. Where a life has been taken with an intention so to do or even with the lesser intention to cause really serious injury, it amounts to murder and is said to be the most serious crime in the criminal calendar.
Manslaughter, relevant to these proceedings, is caused by an unlawful and dangerous act. Manslaughter encompasses every kind of punishable homicide, other than murder.
Manslaughter still involves punishment for the taking of a human life, but in circumstances that do not involve an intention that renders the injury in the more serious category of murder. It was best described in the following passage: "The crime of manslaughter comprehends all forms of punishable homicide other than murder. For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, … involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as 'involuntary', do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act. It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. At the same time, the Courts have repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case." [3] (Citations omitted.)
Victim impact statements have been read either by the particular member of the family or by a person nominated by that family member. They reflect the impact one would expect from the loss of a partner, child and sibling respectively.
This offence tragically cut short the life of a man who cared for his extended family and was entitled to live to an old age in the company of his family. Indeed, it cut short the life of a man who cared so much for his extended family that he was prepared physically to restrain the offender from endangering himself by driving his motorcar and endangering others on the road. This attempt at restraint renders the death of the deceased even more tragic.
The deceased's partner, Maddison or Maddie, suffers significant anxiety, depression and Post-Traumatic Stress Disorder, as a result of the offence. Her grandmother is required to sleep next to her to calm her from the flashbacks that occur.
The deceased's mother struggles daily and describes herself as "a different person in so many ways" as a result of the death. Their mood and affect cannot be, in Wendy Eggins' words, "fixed" -- they must simply be "accepted".
The deceased's father, sometimes in tears, as were others, described the profound emotional affect that the crime has had on his life and those of his immediate family. He described the constant sadness and the lack of trust in others.
The death of Ricky Eggins and the circumstances in which it occurred has had, perhaps a little unusually, financial effects. Usually, those financial effects are found to exist in dependents, but in this instance the depressed state of the deceased's mother has caused her to reduce her work hours as a consequence of her mental and physical exhaustion caused by the depressive effect of the crime on her.
I do not repeat all that is said in the victim impact statements, although each of them have been heard and read.
The offender's partner, Renee, who is, as already stated, the sister of the deceased, expressed her feelings of guilt at having brought the offender into the family's environment which he has now destroyed.
She expressed her lack of safety, as she feels it, in her own home and her lack of security. She also expressed her fear at hearing noises and her suicidal thoughts over the events in question.
Because these events occurred at a time when there was a family celebration, the effect of the crime is even more poignant. While, a death of this kind will always affect the full enjoyment of family celebrations, where it has occurred, as it has here, during the course of the extended celebrations, every celebration becomes a reminder of the events and the tragic loss. Renee Eggins describes the fact that she has lost her brother, her boyfriend and her stepson in one night.

The purpose of sentencing

As is sought to be expressed above, the criminal taking of a human life is serious. The criminal law operates on the basis that mankind has free will -- we have the capacity to choose to obey the law; and we are punished appropriately when we do not.
To those unfamiliar with the process of sentencing, some aspects of the task may seem difficult to understand. That difficulty is exacerbated when one is dealing with the crime of manslaughter, which depends on a number of circumstances that will differ from one case to the next.
The Court is required, in fixing an appropriate sentence, to assess the objective seriousness of the offence. In so doing, the Court examines the range of conduct that may generally be involved in the offence of manslaughter. Even, as here, where one is dealing with the death of a victim, it is necessary to assess the conduct of the offender to determine where, in the range of seriousness of conduct that may give rise to manslaughter, this offence fits.
It is only in circumstances where the conduct involved, compared with other conduct that could give rise to manslaughter in other circumstances, is so grave as to warrant the maximum penalty that the offence fits within that which is sometimes referred to as "the worst category of offence" warranting the maximum sentence imposed by the legislature. [4] The maximum sentence for manslaughter is 25 years' imprisonment.
As it is noted by the High Court, and is the subject of much authority, the "worst category" is not confined to that for which it is impossible to conceive of an even worse instance of an offence. [5] The Court is required to assess objectively the features of the offence and the circumstances of its commission to determine whether it is in the category of a worst-case or lower down the scale of seriousness, within the notional range between the lowest level of culpability and the worst category of cases, all of them involving the felonious taking of a human life.
In so doing, the Court seeks to achieve a purpose that has been described as sometimes conflicting in its objectives. In serious crimes, including manslaughter, the importance of punishment and public deterrence usually loom large. Other purposes include the protection of society, personal and public deterrence, retribution and reform.
Each of these objectives, but particularly the protection of society, personal and public deterrence, punishment and, to a lesser extent, the need for rehabilitation, must be assessed having regard to the gravity of the circumstances, viewed objectively, within the range of offending comprehended by the offence in question.
Further, considerations of reform and rehabilitation of the offender, while significantly affected by the objective circumstances of the offence, are more directly affected by the subjective circumstances of the offender and the capacity for the offender to be rehabilitated.
The capacity for, and the likelihood, if any, of rehabilitation, in turn, impacts upon the degree to which a sentence is fixed, which ensures the protection of society and the personal deterrence of the offender. The process is one that has often been described as involving "intuitive synthesis". It takes each of the objective circumstances of the offence and each of the subjective circumstances of the offender and synthesises them to achieve the purpose of sentencing.
As already stated, the purpose of sentencing is, as summarised above: the protection of society; deterrence of the offender and of others who might be tempted to offend; retribution and reform. Those purposes overlap and none of them can be considered in isolation. Each is a guidepost for the purpose of arriving at an appropriate sentence and sometimes, as stated, those guideposts point in different directions. [6]
The legislature, reflecting the common law, has described the purposes of sentencing as: ensuring adequate punishment for the offence; prevention of crime by deterrence of the offender and others; the protection of the community; the promotion of rehabilitation; rendering the offender accountable for the conduct; denouncing the conduct; and recognition of the harm done to the victim of the crime in the community. [7]
In circumstances such as the present, the task required of a sentencing judge in synthesising each of the objective and subjective circumstances is a difficult one. On the one hand, manslaughter is a most serious offence and comments regarding objective seriousness are made within the context of the nature of the offence in the taking of a human life. The objective circumstances of this offence, notwithstanding its effect, must be gleaned from the facts. Those facts are, as earlier stated, relatively uncontroversial.
While the offender deliberately obtained the carving fork from the knife block in the kitchen of his home, the Crown has not proved that he did so for the purpose of injuring the deceased or anyone else. On the balance of probabilities, the Court accepts that the offender obtained the carving fork for the purpose of scaring off those that sought to constrain his movements and, in particular, his departure in the car.
That intention to scare off others and the confrontation that occurred as a result of the deceased's attempt to stop the offender from driving, resulted in the offender lashing out with the carving fork and causing the fatal injury.
In the scheme of circumstances that may give rise to the serious offence of manslaughter, the circumstances of this offence fall below the middle of the range of circumstances that can give rise to the offence of manslaughter. Further, in my assessment, it is below the mid-range.
It is necessary to factor that level of culpability into the determination of an appropriate sentence. Before doing so, it is necessary to point out some factors that have been taken into account. In assessing the objective culpability of the circumstances of this offence, the Court has taken into account the use of a weapon.
As a consequence, it is impermissible for the Court to treat the use of a weapon as an aggravating feature. Were it not for the use of the weapon the moral culpability would be at the lowest level in the scale of moral culpability. On any view, were it not for the use of a weapon, the offence would not have occurred.
Further, I have also taken into account the fact that the offender was punched prior to assaulting the deceased. However, I do not consider that punch to be taken into account in any significant amelioration of the culpability, as it was not the deceased that inflicted the punch. Nor, at the time that the injury was inflicted, was the perpetrator of the punch anywhere near either the offender or the deceased. But it did set a mood and an environment that may have brought back issues for the offender from earlier in his life.
The Court has also taken into account the fact that the offender was initially unaware of the severity of the injury that had been inflicted and had considered that the wound was insignificant and only just superficial. It is necessary to deal then with the subjective circumstances of the offender.

Subjective circumstances

This is not the first offence committed by Mr Tailford. This is a serious personal violence offence and the criminal record of Mr Tailford includes offences which are violence-related, albeit none in the category of seriousness for which he is now to be sentenced. His offending starts as a juvenile and includes common assault, but generally involves entering enclosed lands and driving or driving-type offences. It also includes shoplifting and goods in custody.
His adult history which, on account of the fact that he was born in November 1992, commences in 2011, includes: larceny; destruction of property; nuisance calls to ambulances; contravention of an Apprehended Violence Order; and motor vehicle offences including driving whilst disqualified, giving a false name, driving recklessly and assault. There are other offences and I have not sought to be comprehensive.
The offences for which Mr Tailford was serving an Intensive Correction Order was for driving a motor vehicle whilst disqualified. He had served prison sentences for similar offences, although each of them had been suspended.
At the time of the commission of the offence for which the offender is now to be sentenced, the offender was serving an Intensive Correction Order, which was revoked on 19 March 2019. That earlier sentence concluded on 13 September 2019, from which time the applicant has been in custody, as a result solely of the offence for which he is now to be sentenced.
I have already remarked as to the emotional harm caused by the offence and the fact that the offence was neither planned nor organised. I have also referred to the remorse disclosed by the offender in some of the conduct immediately after the offence in question was committed: in particular, the text message to the mother of the deceased; and the acceptance of responsibility, including the effect that his conduct has had on his partner Renee, the sister of the deceased.
The offender has expressed remorse and accepted responsibility in a letter to the Court, which forms part of the material upon which the offender relied in relation to his sentencing. In that letter the offender acknowledges that it was his choice to use alcohol and not to control his actions in an appropriate manner for which he expresses the view that he must take "complete responsibility for [his] actions".
The offender expresses his feelings of terror at that which he can remember of the events of the evening, but makes clear that his feelings are nothing compared to all that, which the victim's family has gone through and is still experiencing.
His remorse and the responsibility for his conduct were expressed also to a psychologist and/or psychiatrist. I consider that his feelings of remorse and his acceptance of responsibility are genuine and I take that into account in evaluating his capacity to be rehabilitated and to his credit. Thus far, I have not dealt with the offender's background or mental condition.
The offender is of Aboriginal descent and considers himself Aboriginal. Notwithstanding the consideration, he has had little education in culture and the language associated with his Aboriginal descent.
His Aboriginal descent is gained through his birth father, with whom he has had little or no contact. Mr Tailford is currently 28 years of age and was 26 at the time of the offence.
The Court has the benefit of reports from Dr Adam Martin, Forensic Psychiatrist, dated 9 September 2019 and from Dr Peter Ashkar, Psychologist, dated 4 June 2021.
The psychiatric report was compiled for the purpose of examining Mr Tailford's fitness to plead. As a consequence, the report was compiled prior to the hearing and described the offender as being nervous and scared about Court. It also referred to interpersonal conflict with other inmates and staff at the correctional facility.
The report recites his drug and alcohol history and confirms that, while he first drank alcohol at the age of 15, he was not a drinker and particularly not a heavy drinker. This arises because, as a child, he had seen his mother and stepfather drunk and "bash each other".
Nevertheless, the offender first smoked cannabis at the age of 13 and smoked on a daily basis. Apparently, it eased his anxiety.
Since first using cannabis he had also used methamphetamine regularly and, in the past, heavily, starting at 16 and using it more heavily between the ages of 19 and 21. He had used cocaine occasionally but did not use heroin. He did smoke buprenorphine and had consumed "snow cones", which are cannabis with sprinkled Valium on top.
In the psychiatrist's report, Mr Tailford is quoted as describing his early upbringing and he confirmed that he had not known his biological father. He had four stepsiblings and the home life was one in which Mr Tailford experienced a large amount of drinking and domestic violence. His stepfather was gaoled for domestic violence offences, including hitting his mother with a weapon.
In terms of academic capacity, Mr Tailford described himself to the psychiatrist as "dumb" and spoke of his disruption in class and being suspended constantly. He had a number of unstable relationships earlier than the one terminated when this offence occurred.
In terms of the family history, Mr Tailford described his mother as drinking alcohol in a harmful way and that she suffered from "split personality, bipolar", saying that her moods changed quickly and that she had self-harmed.
The psychiatrist expressed the view that Mr Tailford alluded "in a guarded manner" to having been sexually abused as a child.
The psychiatrist was not convinced, as had been suggested on earlier occasions by others, that Mr Tailford suffered a major mental illness such as schizophrenia. The psychiatrist expressed the opinion that it was probable that Mr Tailford has experienced paranoia and hallucinations in the context of developmental trauma and in the context of regular and heavy use of cannabis and methamphetamine. In the psychiatrist's view his effective appearance on mental state examination was not in keeping with a person with schizophrenia.
Nevertheless, at the time, Mr Tailford had been prescribed and was consuming antipsychotic drugs. The psychiatrist expressed the following view: "His [Mr Tailford's] history and mental state examination was consistent with a person with borderline or low-average intelligence in that he had basic language skills and a rather concrete communication style. His history is not suggestive of him being intellectually disabled. However, he clearly has a very limited educational attainment and has apparently not completed TAFE courses although this might reflect lifestyle choices rather than lack of intelligence, per se. He works in gaol and told me that he is engaged in a TAFE course around construction. His narrative suggests that he has very limited coping style and has used drugs frequently. He spent large periods of time video gaming and his history of deliberate self-harm, volatile relationships, described impulsivity and being prone to anxiety and depression are in keeping with borderline and anti-social personality disorders. Personality disorders are generally associate[d] with disrupted attachments and a chaotic development, as his history suggests. Problematic use of substances is also in keeping with a person with limited coping abilities and a prejudicial development."
The foregoing is corroborated in the report of Dr Ashkar who, in some areas, gives greater detail. He offender refers to the description of his stepfather and his conduct as having beaten his mother and that he would beat the offender all the time.
The psychologist's report also records the offender referring to his mother as an alcoholic and the psychologist drew the reasonable inference that his mother smoked and drank alcohol during the course of her pregnancy before giving birth to the offender. It is an inference that I also draw.
Further, as both the psychologist and psychiatrist noted, there was a diagnosis of the offender as having Attention-Deficit/Hyperactivity Disorder, but the psychologist, on the basis of the mother's drinking during pregnancy and the often misdiagnosed ADHD, suggests that the offender may in fact be suffering from Foetal Alcohol Spectrum Disorder (FASD), which, in my view and the psychologist's, on the balance of probabilities, seems consistent both with his family history and his current testing.
The psychologist's report includes an assessment based upon neuropsychological testing. The psychologist, apart from his degree as a Doctor of Philosophy in Psychology, had a later specialist degree, being a Master of Clinical Neuropsychology.
There are a number of significant test results. Generally, on examination, the offender was appropriately dressed and behaved himself, albeit he was restless. The offender avoided eye contact, but otherwise his social and communication skills were appropriate. He was appropriately oriented but incorrectly identified the date of the examination.
His test results were variable. The psychologist reports that this suggests that Mr Tailford's motivation to perform waxed and waned. Further the assessment of Mr Tailford's intellectual and cognitive functioning was estimated to fall within the borderline and low average ranges based upon his education and vocational history and his performance in a word reading test.
Notwithstanding those results, the offender actually performed below that level in most areas of intellectual and cognitive functioning. Mr Tailford performed extremely low on information processing speed; verbal intellectual functioning; non-verbal/visual intellectual functioning; learning and memory for unstructured verbal material; higher-level attentional thinking involving inhibition, attention to visual detail and in areas of higher-level/executive thinking.
Mr Tailford was placed in the high risk of reoffending class in terms of his self-appraisal questionnaire and the responses to collateral information. He showed aspects of antisocial personality.
The psychologist described Mr Tailford as a product of an unstable childhood with an absent father and an alcoholic and abusive mother and stepfather. This, together with its sequelae, has led to the development in Mr Tailford of an unstable personality structure and difficulties with emotional and behavioural regulation into his adulthood.
Lastly, the psychologist expressed the opinion that Mr Tailford requires psychological treatment for the management of his substance use and the range of criminogenic risk factors identified during assessment. Mr Tailford is in need of a high level "of very structured intervention to achieve significant gains. He has no family or social support in the community and will require ongoing professional support when he returns to the community."
As the Crown rightly and appropriately submits "the evidence establishes that the offender's weaknesses and impairments in his intellectual and cognitive functioning played a part in his impulsive and poor decision making at the time of the offence". The Crown notes that disinhibition from intoxication also "played a role" and the Crown further noted "that the defence submission that the offender is an inappropriate vehicle for general deterrence has merit".
Nevertheless, the Crown noted the high risk of recidivism as reported by Dr Ashkar and to which earlier reference has been made as a countervailing impact in the sentencing process. The Crown also submits that a structured program of treatment would greatly assist the offender.
While I will deal with this issue at a later time, the foregoing material and the acceptance by the Crown of the effect of that material establishes special circumstances for the purpose of varying the ratio between the head sentence and the non-parole period and points to a requirement, on this individual, for a longer than usual period on parole to allow for the structured treatment to which both the report of Dr Ashkar and the submission of the Crown point.
Earlier in these remarks, I have referred to the early childhood of the offender. The High Court summarised the effect of the principles associated with sentencing persons who suffer from the kind of mental condition suffered by the offender.
On the one hand, such a mental condition has the effect of reducing the person's moral culpability and rendering less significant the purposes of general deterrence, retribution and denunciation. [8] The other side of that coin is that some mental conditions render far more significant the protection of the community. [9]
Further, the early childhood environment of violence and drunkenness, together with the condition suffered, being FASD, which the Court accepts as more probable than not, have their own effect. As the High Court said: "Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving 'full weight' to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender." [10]
Nevertheless, the foregoing comment was a qualification on the comments otherwise earlier expressed by the High Court in Bugmy, when it summarised the principles, previously summarised in Fernando and in Kennedy. [11] Those principles refer of the manner in which social disadvantage impacts upon the sentence to be imposed as a result of the commission of a crime.
It should be emphasised that equal justice, a norm of the rule of law, embodied in Chapter III of the Constitution, requires that the same sentencing principles are to be applied in every case, irrespective of the identity of a particular offender or the offender's membership of any particular ethnic or other group.
Nevertheless, in sentencing persons of a particular background, all the material facts of that background, which may exist only as a result of the offender's membership of an ethnic or other group, are to be considered and, to the extent relevant, applied.
In R v Lewis [12] I referred to the effect of social exclusion and the studies that had been performed by Prof Baumeister. I there said the following, to which comments I adhere: "[41] The thesis of Professor Baumeister can be summarised in the following passage and I apologise for citing it at length. In R.F. Baumeister & C.N DeWall, 'The Inner Dimension of Social Exclusion: Intelligent Thought and Self-Regulation Among Rejected Persons' (2005) Journal of Personality and Social Psychology, 888, 589-504, the authors remarked: 'It is easy to propose how people ideally or optimally would respond to social exclusion. They ought to redouble their efforts to secure acceptance. Toward that end, they should reduce their aggressive and antisocial tendencies and increase prosocial behaviour. They should improve at self-regulation so as to perform more socially desirable actions. And even if improved social acceptance is not a promising option, they ought at least to become more thoughtful and intelligent and should avoid self-defeating behaviours, so as to fare better on their own if necessary. Yet our laboratory studies have found the opposite of all of these to be closer to the truth. Initially we thought that emotional distress would be the central feature of the impact of social rejection, and all behavioural consequences would flow from this distress. This too has been disconfirmed. Across many studies we have found large behavioural effects but small and inconsistent emotional effects, and even when we did find significant differences in emotion these have failed to mediate the behaviours. Indeed, the sweeping failure of our emotion mediation theories has led us to question the role of emotion in causing behaviour generally (but that is another story). Self-regulation and cognition, instead of emotion, have emerged from our most recent data as the most important inner processes to change in response to social exclusion. Rejected or excluded people exhibit poorer self-regulation in many spheres. They also show impairments in intelligent thought, though these are limited to forms of thought that are linked to self-regulation (that is, thinking processes that depend on effortful control by the self's executive functioning). Nonetheless, the findings from this work have helped shed light on both the inner and outer responses to exclusion. They help illuminate why many troubled individuals may engage in maladaptive or seemingly self-destructive behaviours. They may also have relevance to the responses of groups to perceived exclusion from society as a whole. Although there are some exceptions, such as the intellectually vigorous culture maintained by Jews during the centuries of discrimination and ghettoization, many groups who felt excluded or rejected by society have shown patterns similar to those we find in our laboratory studies: High aggression, self-defeating behaviours, reduced prosocial contributions to society as a whole, poor performance in intellectual spheres, and impaired self-regulation. Our findings suggest that if modern societies can become more inclusive and tolerant, so that all groups feel they are welcome to belong, many broad social patterns of pathological and unhealthy behaviour could be reduced.'"
The correlation between the effect of social exclusion described in the studies of Prof Baumeister and summarised in the foregoing passage and the neuropsychological testing results for Mr Tailford are striking. Mr Tailford displays poor self-regulation; impairments in intelligent thought, particularly self-regulation; high aggression; self-defeating behaviours; reduced prosocial contributions to society; poor performance in intellectual spheres; and, albeit repetitively, impaired self-regulation.
This aspect was taken up by the Court of Criminal Appeal. [13] in which, as part of the Court, I said: "[92] Circumstances such as that are akin to a systemic background of deprivation and are a background of a kind that may compromise the person's capacity to mature and to learn from experience: Bugmy at [41] and [43]. As a consequence, this background of social exclusion will, on the studies to which detailed reference has been made in Lewis, explain an 'offender's recourse to violence…such that the offender's moral culpability for the inability to control that impulse may be substantially reduced': Bugmy at [44]." [14]
McCallum J agreed with those reasons for judgment and Bathurst CJ generally agreed and said: "[13] Rothman J has dealt with the objective seriousness of the offences, the applicant's subjective circumstances and his rehabilitation since his imprisonment in pars [64]-[81] and [94]-[96] below. I agree with his Honour's remarks. Further, I am prepared to accept that the removal of the applicant from his natural parents and his consequent difficulty in adjusting to a 'white fella's world' (see the Pre-Sentence Report of Probation and Parole Officer Bryson dated 6 September 2006) is evidence of a deprived background and social disadvantage which may mitigate the sentence, consistent with the principles in Kennedy v R [2010] NSWCCA 260 at [53]; Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [37]-[44]; Neal v The Queen [1982] HCA 55; 149 CLR 305 at 326 per Brennan J."
I have already commented on some of the aggravating factors associated with the offending in question. As a matter of abundant caution, I make it clear that I do not take into account as aggravating features the actual use of violence and the use of the weapon, because each is an element of the offence and has been taken into account in assessing the offence. Further, such an analysis also applies to the emotional harm, loss or damage caused by the offence, the grave risk of death.
I do not take account of the fact that the offence was committed in the home of another person, being the offender and the offender's partner, who is also the sister of the deceased. To take that into account as an aggravating feature, as distinct from part of the substance of the matter being assessed, would be wholly artificial.
As to the commission of the offence without regard to public safety, I do take account of the fact that the offender was intending to drive when he was wholly and utterly drunk and that the conduct of the deceased was an attempt to prevent the offender from hurting himself and others.
In assessing an appropriate sentence I take into account the fact the offender was on conditional liberty at the time the offence occurred. I also do not grant the offender the leniency that might otherwise be implemented as a result of him being a first offender. He is not a first offender. Nevertheless, his criminal record is not one which discloses significant violent offences and that is a factor that is taken into account.
In terms of the mitigating factors prescribed by s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), I have taken into account the fact that the offence was unintended and therefore not part of a planned or organised criminal activity.
The offender has disclosed acceptance of responsibility for his actions and acknowledgement of the injury, loss and damage caused by his actions. The plea of guilty, to which later reference needs to be made; the degree of pre-trial disclosure, also referred to later in these reasons; and the plea of guilty to manslaughter in circumstances where he was charged with murder and ultimately convicted of manslaughter, all disclose remorse and prospects of rehabilitation. Again, that last mentioned matter will be the subject of later comment.

Early Plea of Guilty

An issue arises in these proceedings as to the operation of Division 1A ("the Division") of Part 3 of the Crimes (Sentencing Procedure) Act. That Division was promulgated on 30 April 2018 and applies to all sentences to be imposed for indictable offences where the proceedings commenced after 30 April 2018. [15] It sets the discount for a plea of guilty.
The Court, as presently constituted, has been referred to two judgments of the Court, at first instance, which it was said take differing views as to the operation of the Division. The first in time takes the view that a plea of guilty to manslaughter, when an offender is charged with murder, does not bring the offender within the mandatory early plea of guilty discount regime prescribed by the Division. [16]
The second judgment [17] takes the opposite view. I do not, in these remarks, recite the reasoning to each different conclusion and, therefore, do an injustice to each of my colleagues.
Neither counsel before the Court, nor, it seems, counsel in the previous proceedings, sought to challenge the validity of Division 1A of the Act. That comment is not intended to suggest that such a challenge would be successful, even in circumstances where it purports to constrain the sentencing discretion, which is part of the inherent powers of the Supreme Court. [18]
Assuming validity, the issue must be dealt with by construing the terms of the legislation. However, the legislation is not to be construed out of context. There are some issues with which neither previous judgment dealt.
First, the Division deals with the timing of a plea of guilty to the offence; not the charge. This is as it must be.
Secondly, as explained in my earlier judgment, under the common law, murder and manslaughter are the one offence. [19] If that common law situation were to apply to an indictment where only murder was charged, then, if the indictment were not amended to charge manslaughter, no discount would be applicable to a plea to manslaughter that was accepted by the Crown in full satisfaction of the indictment. Such a result would be repugnant.
It seems, therefore, that where "offence" is used in the Division, it is treating murder and manslaughter as different offences. It may well be that the combined effects of s 18(1)(a), s 18(1)(b), s 19A and s 24 of the Crimes Act 1900 (NSW) particularly the reference to the "Crime of Murder" and the "Crime of Manslaughter" has altered the historical common law position. Nevertheless, an entry of a verdict of guilty to manslaughter would preclude a trial on murder relating to the same death.
The reasons for judgment in Black, supra, are described in Holmes, supra, as depending upon "entry" of the plea of guilty. [20] I do not accept that analysis. In my view, there is no fundamental inconsistency between the reasoning in Holmes and the reasoning in Black as to the operation of the Division.
In Black, there was preferred, initially, a charge of murder. There was an informal offer of a plea to manslaughter. Then, at a later time, there was a plea entered in court on arraignment of not guilty to murder, but guilty of manslaughter, which was not accepted in full satisfaction of the indictment.
Later, the plea of guilty to manslaughter was withdrawn. I do not here discuss whether a plea offered pursuant to s 153(1) of the Criminal Procedure Act needs to be withdrawn and, if it does, whether leave is necessary. Nevertheless, leave was granted.
Then, after commencement of the trial, the offender was re-arraigned; and offered the plea of guilty to manslaughter. This was then accepted by the Crown.
His Honour found that, in those circumstances, the 25% discount did not apply under s 25E of the Crimes (Sentencing Procedure) Act. Frankly, even if the Division were not applicable, such may have been the outcome.
In Holmes, supra, unusually, the indictment was in similar form to that presently before the Court. The then accused was not relying on s 153 of the Criminal Procedure Act in offering a plea of guilty to manslaughter; it was a charge on the indictment.
The operation of the Division cannot depend upon "entry" of the verdict. A magistrate is not entitled to "enter" a verdict for an indictable offence. The magistrate, at committal, may either "accept" the plea or "reject" the plea. Those courses are mutually exclusive and comprise the whole of the jurisdiction of the magistrate at committal. [21]
Where, as here and as in Holmes, there are two charges preferred and a plea of guilty is entered to one of them, the Magistrate is required, subject to acceptance of the plea by the Crown in satisfaction of the entire indictment or some valid reason to reject a plea, to commit the accused for trial on any charge to which there is a plea of not guilty and commit the accused for sentence on any charge for which there has been a plea of guilty.
Where the plea of guilty to a lesser charge is made pursuant to the provisions of s 153 of the Criminal Procedure Act, then a verdict by a jury for the lesser charge (or its equivalent), or the later acceptance of the plea by the Crown in full satisfaction of the indictment, would render the provisions of s 25E of the Crimes (Sentencing Procedure) Act applicable.
As a consequence of the foregoing, I should recount the following circumstance. The offender pleaded guilty to manslaughter at committal, it was affirmed at each arraignment in this Court, and the trial proceeded only for murder. The plea of guilty at committal was not, and could not have been, rejected. The provisions of s 25D(2)(a) of the Crimes (Sentencing Procedure) Act apply to that offence; and it is that offence for which the offender is to be sentenced.
Furthermore, such a construction avoids the inconsistent operation of the Division to the same factual matrix that would otherwise occur if a plea entered pursuant to s 153 of the Criminal Procedure Act were treated differently to the same plea for the same back-up offence preferred on the indictment.

Conclusions

In the immediately preceding passage, the Court made clear that the plea of guilty to manslaughter made by the offender at or before committal proceedings and to which the offender has adhered throughout brings the offender within the terms of s 25D(2)(a) of the Crimes (Sentencing Procedure) Act.
As a consequence of the provisions of s 25A(2), the discount prescribed in s 25A(2) of the Crimes (Sentencing Procedure) Act is the only discount that is capable of being applied for the utilitarian value of the plea of guilty. In the instant proceedings, a plea of guilty of the highest level is both appropriate and, were the Court to continue to have a discretion, would have been applied.
However, somewhat oddly, the provisions of s 25A(2) of the Crimes (Sentencing Procedure) Act do not allow the Court to apply a discount less than the discount prescribed by the Division. I suppose, given the terms of s 25A(2), a court could decide not to apply any discount, but such a proposition does not fall for consideration in these proceedings.
As a consequence, the offender will receive a discount of 25% for the utilitarian value of the plea of guilty to the crime of manslaughter, the verdict for which was entered on delivery of the verdict of not guilty to murder by the jury. The manner in which the offender dealt with the proceedings had the effect of leaving only one issue of fact - the existence of the requisite intent for murder. That approach also reflected remorse and the acceptance of responsibility, but it cannot be double-counted.
The Court has, in the early aspects of these remarks, dealt with the circumstances of the offending and the subjective circumstances of the offender. Some of the aspects of what would ordinarily be called subjective circumstances are such that they may be reflective of both the objective circumstances and the subjective circumstances.
The process of intuitive synthesis to which earlier reference has been made allows the Court to take those circumstances into consideration in a manner which gives them due weight but does not overemphasise or double-count the effect of those circumstances.
It is clear that the offender, a young Aboriginal man, has had a troubled early childhood. His reaction to that circumstance, including the circumstances applicable to him, while unborn, is manifest. Yet, a troubled background does not excuse criminal behaviour.
In this case, the troubled background and conditions suffered by the offender cause the Court to conclude that the offender is an inappropriate vehicle for general deterrence. Nevertheless, the Court takes account of the offender's high risk of recidivism and the need to protect the community and sheet home to the offender the denunciation of his conduct.
In part, the denunciation is less important in the case of this offender because he has a genuine understanding of the wrong that he has committed. He also has a genuine understanding of the effect on him of significant alcohol consumption.
Notwithstanding the submission of the Crown and Senior Counsel for the offender, I do not consider that the alcohol had a "disinhibiting" effect. In order for the alcohol or its abuse to have "disinhibited" the offender, the alcohol would have been required to have the effect that it diminished his capacity to control his urges.
Given the verdict of the jury and the basis upon which it must have been obtained, I do not consider that the offender had an "urge" to kill or to inflict a really serious physical injury. Rather, the alcohol had the effect of denying the offender the capacity to possess such an intention.
I do, in that respect, take into account that the alcohol had the effect of further cognitive impairment on the offender and a diminution of his executive functioning. As a consequence, the offender was less likely to understand the full implications and ramifications of his conduct and to appreciate the level of danger to which he was exposing the deceased. In that sense, I have taken that aspect of the alcohol into consideration in the determination of the objective seriousness of the offence at the level already indicated.
The subjective circumstances warrant significant consideration. I have set them out earlier. As I have tried to indicate, such subjective circumstances are not a free pass to the commission of offences. It is necessary to structure the sentence in a way that will provide the kind of support to which Dr Ashkar, in particular, referred.
As already stated, the maximum sentence is 25 years' imprisonment. That is a guidepost, but this offence is not one which fits the class of those requiring the maximum sentence. As stated the objective seriousness of the offence is below mid-range for manslaughter offences.
I have found special circumstances and will allow a potential parole period longer than would otherwise be permitted. That extended parole period, assuming the offender obtains parole, is intended to be a period of supervised conduct in the community for the purpose of achieving the kind of structure and support to which the experts have referred.
Over and above the foregoing, the Court is not in a position to be able to dictate to Corrective Services the manner in which, or the facility in which, the offender will be accommodated. Nevertheless, it is important to reiterate that the offender has already inflicted self-harm.
His incarceration is a risk to be managed. If I were able to dictate these matters to Corrective Services, I would order that he be accommodated in a facility such as that operated at Balund-a at Tabulam.
The offender certainly fits the age for that program; and, despite the commission of this offence, I do not consider him to be an offender whose violent conduct would preclude his admission to such a program. Nevertheless, I am unsure whether the program is confined to those persons on remand as a consequence of a Griffith Bond or under s 11. It may be that there are other programs of a similar kind.
That which is important in the immediately preceding comment is that the Court highly recommends a program for Mr Tailford that provides support and, in particular, a program that is intended to enhance skills within a culturally supportive and appropriate community environment. Ultimately, that is a matter for the officers at Corrective Services. These remarks on sentence will be provided to Corrective Services.
Taking all of the foregoing into consideration and paying regard, to the extent appropriate, to the judgments provided by both the Crown and Senior Counsel for the offender, it is necessary to fix and impose an appropriate sentence.
Other sentences that have been imposed for manslaughter are useful only to the extent that they may indicate a range of sentences that are available. No two cases are identical. Further, particularly in manslaughter sentences, the statistics, without explanation, are of little use.
Given the gravity of the offence, I make it clear that no other sentence other than a full-time custodial sentence is appropriate. The Court must also determine an appropriate commencement date for the sentence.
The applicant was arrested on the date on which this offence occurred, namely, 2 March 2019. He has been in prison ever since. At the time that he was arrested, as earlier stated, he had been sentenced to two concurrent sentences of imprisonment of 12 and 18 months respectively to be served by way of an Intensive Correction Order. They were to expire on 13 May 2019 and 13 September 2019 respectively. The offences in question occurred on 20 February 2018. They were for offences of driving whilst disqualified.
On 19 March 2019, the State Parole Authority revoked the offender's conditional liberty and ordered that the offender serve imprisonment for 6 months and 12 days from 2 March 2019. This period expired on 13 September 2019.
In determining an appropriate commencement date for the sentence, it is necessary to look at the totality of the offences. If the Court were sentencing for each of the drive whilst disqualified offences and this manslaughter at the same time, what additional incarceration would be imposed for the driving whilst disqualified.
In reality, it is this offence that has caused the offender's incarceration and were it not for this offence, the offender would have served out his Intensive Correction Orders without incident. Nevertheless, some additional incarceration (over and above the supervised liberty under which the offender operated for 10 months) is necessary. Taking into account that supervised liberty and bearing in mind the need for totality, it seems an appropriate commencement date is 13 June 2019, which I will use as the commencement date for the offences.
As to the fixing of the sentence and bearing in mind both the objective seriousness of the offence and the subjective circumstances of the offender, I consider that a sentence that started at a head sentence of 10 years is appropriate. I apply a 25% discount for the utilitarian value of the plea of guilty and fix a head sentence of 7 years and 6 months.
Mr Tailford, please rise; 1. You are convicted that on 2 March 2019 at Orange in the State of New South Wales you did unlawfully kill Richard Eggins; 2. The aforesaid conviction is recorded; 3. I sentence you to imprisonment for a non-parole period of 4 years and 3 months, commencing 13 June 2019 and concluding 12 September 2023, the balance of term being a further 3 years and 3 months, expiring 12 December 2026. 4. You are first eligible for release on parole on 12 September 2023. 5. These remarks, the transcript of today's short proceedings and the reports of Dr Martin and Dr Ashkar will be provided to Corrective Services.

Endnotes

R v Tailford [2021] NSWSC 248 ("the preliminary judgment" or "the earlier judgment").
Tcpt, 9 March 2021, p 260.8.
R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ,12 December 1995, unrep).
R v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [17]-[20] (Bell, Gageler, Keane, Nettle and Gordon JJ).
Veen v The Queen (No 2) (1988) 164 CLR 465 at 478; [1988] HCA 14.
Veen v The Queen (No 2), supra.
Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A.
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [53].
R v Engert (1995) 84 A Crim R 67 at 67; (Court of Criminal Appeal (NSW), Gleeson CJ, 20 November 1995, unrep).
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [44].
R v Fernando (1992) 76 A Crim R 58; Kennedy v R [2010] NSWCCA 260 at [53].
R v Gareth Mullaya Lewis [2014] NSWSC 1127.
Kentwell v R (No 2) [2015] NSWCCA 96.
Ibid at [93].
Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW), Schedule 2, Clause 5.
R v Black (No 2) [2021] NSWSC 77 (Cavanagh J).
R v Holmes (No 7) [2021] NSWSC 570 (Campbell J).
Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40; see also Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 and R v Nitu [2013] 1 Qd R 459; 222. There may be a difference between setting minima and maxima and preventing or requiring a discount that the sentencer considers affects the appropriateness of the sentence imposed.
R v Tailford [2021] NSWSC 248; R v Downs (1985) 3 NSWLR 312.
Holmes, supra, at [66]. Entry of the plea is, of course, different from entry of the verdict.
GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [28]-[29].

Amendments 16 June 2021 - Typographical error 17 June 2021 - Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 June 2021

Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017(NSW)

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