R v Eaton

1. [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. [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. [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. [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:

5. [5]

   The grounds are somewhat related but different considerations arise and I will deal with them separately. There is merit in the first ground of appeal, and I accept that one of the errors alleged by the Director has been established. However, I discern little merit in the second ground of appeal and consider the sentence fell well within an appropriate discretionary range. I have concluded that the appeal must be dismissed, either because the error disclosed in his Honour’s reasoning did not impact on the result or by the proper application of the residual discretion to dismiss such an appeal, despite the existence of error. These are my reasons for those conclusions.

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

1. [6]

   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. [7]

   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. [8]

   The child’s mother addressed the respondent directly, telling her:

4. [9]

   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.

5. [10]

   Both parents suffer in silence. They have blamed themselves and each other, fought behind closed doors, been unable to seek professional help and tried to hide their own needs to take care of their surviving children. The mother is on medication and they took six months off work, which has affected their family financially.

6. [11]

   The victim impact statement included the following:

7. [12]

   The knowledge of how their daughter died makes them “emotionally unable and at times physically ill” and their “wellbeing is not ok”. Losing their daughter has changed “how they function as a family” with their “superior bond” being fractured. While they are supported by their Aboriginal and Maori community and are guided by their strong spiritual beliefs, they are unable to move forward or forgive the respondent because of the impact her actions have had on them, their family and the community. The loss of their daughter has been “incredibly damaging”, and the respondent has filled their “lives and hearts with so much hate”.

8. [13]

   On the Prosecutor’s application, these matters can be taken into account “in connection with the determination of the punishment for the offence” as an “aspect of the harm done to the community.” [5] But the power of a court to punish an offender is incommensurate with the devastation and grief suffered by a victim’s family in cases of this kind. Put in human language, there is nothing a sentencing court can do to undo the harm caused by an offender or, in this case, to bring the little girl back and make the family whole again.

The facts of the offence

1. [14]

   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’s personal circumstances

1. [15]

   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.

2. [16]

   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.

3. [17]

   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.

4. [18]

   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.

5. [19]

   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.

6. [20]

   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.

7. [21]

   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.

8. [22]

   The respondent suffers from anxiety and depression, seizures, poor short-term memory, anxiety about her health, kidney failure, low iron levels and bipolar disorder. She stopped taking medication for her bipolar disorder five years before the offence and has never regularly engaged with a psychiatrist or psychologist. Because of her health anxiety and fear that “she might be dying”, the respondent has not seen a GP, or investigated the reason for her seizures, which have occurred since childhood. She has a history of self-harming and attempting suicide by intentionally overdosing on medication.

9. [23]

   Two weeks prior to the offence the respondent was hospitalised for liver failure and was suffering from nausea, jaundice, confusion and bleeding. She was given steroids to treat her liver failure. She was discharged from hospital four days before the offence and attended a detox program. She left the program after three days and resumed drinking. The respondent stated that her mental health had declined due to her restricted access to her children.

10. [24]

    On the night before the offence, she had an argument with her ex-husband about access to her children and became distressed. She said that she drank an entire bottle of vodka before going kayaking on 1 June. She also said that she did not feel intoxicated and had a clear memory of the whole day. However, she said she could not remember the kayak capsizing, how it capsized or the victim drowning.

11. [25]

    After the offence the respondent was taken to hospital to be treated for extensive cuts on her legs and hands. Doctors noted that her mental state was “erratic”, “suicidal” and “distressed”. Her sister reported that she had multiple seizures during her stay in hospital. The respondent was assessed as suffering from anxiety, stress disorder and alcohol use disorder. She was prescribed antidepressant and blood pressure medication and was referred to a psychologist and drug and alcohol counselling. She attempted suicide after the offence. The respondent told Ms McMillan that her mental health was “not good at all”.

12. [26]

    The respondent completed a 10 week rehabilitation program at Jarrah House in October 2021. Since then, she has maintained abstinence from alcohol but did relapse once when she found out that her daughter was molested by her brother.

13. [27]

    Ms McMillan and Dr Furst conducted various tests with the respondent.

14. [28]

    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.

15. [29]

    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.

16. [30]

    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”.

17. [31]

    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”.

18. [32]

    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”.

19. [33]

    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.

20. [34]

    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.

21. [35]

    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.

22. [36]

    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.

23. [37]

    Judge McGrath accepted that the respondent was truly remorseful.

24. [38]

    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.

25. [39]

    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.

26. [40]

    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.

27. [41]

    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.

28. [42]

    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.

29. [43]

    The sentencing Judge made the following findings regarding the respondent’s subjective case:

    1. (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. (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. (3)

       Imprisonment would be more onerous for the respondent because of her mental conditions.

    4. (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. (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. (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. (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. (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. [44]

   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”.

2. [45]

   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.

3. [46]

   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]

4. [47]

   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):

5. [48]

   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.

6. [49]

   While it is correct to say that there are occasions where matters personal to an offender may impact on the assessment of objective gravity, those occasions require more than a simple or indirect causal connection between the relevant subjective feature of the case and the offending. The argument put by the respondent here is that the respondent’s manifest difficulties – her traumatic and deprived childhood and her mental health issues – led to her alcohol dependence and, in turn, to her dreadful and reckless offending. While I accept, as the sentencing Judge accepted, that this had a substantial and profound impact on her moral culpability, I am unable to accept that it impacted on the objective criminality of her conduct and its consequences.

7. [50]

   This conclusion is consistent with the approach taken in the High Court in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”).

8. [51]

   While Muldrock concerned the proper application of standard non-parole periods, and the statutory language that introduced that sentencing phenomenon, it was emphasised at [27] that:

9. [52]

   Counsel for the Director pointed out correctly that nothing in Bugmy, a seminal case on the impact of an offender’s childhood deprivation and neglect, supports the conclusion that the diminution in moral culpability led to, or was mirrored by, a reduction in the objective gravity of the offender. The Director’s point is made more starkly in a case argued and decided the same day as Bugmy and in which similar issues were under contemplation: Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38 (“Munda”). In Munda, the Court said at [57]:

10. [53]

    The Director relied on the similar circumstances which presented in the case of Chandler v R (2023) 103 MVR 392; [2023] NSWCCA 59 where the Chief Judge at Common Law (dissenting in the outcome but with the concurrence of the majority Judges on the relevant ground of appeal) concluded that the findings relating to the applicant’s deprived background and mental health, which led to his drug addiction and, in turn, a shocking case of vehicular manslaughter “do not come close to having any bearing on the assessment of the objective seriousness” of the offending. [17]

11. [54]

    Contrast can be made to cases where there is a connection between the relevant subjective feature and a matter truly impacting on as assessment of the objective gravity of the offending. An example is Camilleri v R [2023] NSWCCA 106 (“Camilleri”) where the offender’s complex mental health and cognitive impairments, and her resultant loss of self-control, meant that the offence was truly spontaneous and unplanned.

12. [55]

    A few more things should be said about the complexity lying beneath what appears to be, and what I accept to be, the error in Judge McGrath’s reasoning process.

13. [56]

    First, the language of the guideline judgment, [18] in the context of more recent case law, is somewhat beguiling. Spigelman CJ referred to the guideline judgment being associated with an assessment of the offender’s “moral culpability”. In doing so, his Honour referred to the features of a “frequently recurring case”, most of which were objective matters and not personal to the offender, [19] and aggravating factors that might arise, [20] all of which were objective features of the offence. These were the things that bore upon whether “the offender’s moral culpability was high”. The Director (in this case) submitted – correctly I think – that the references to “moral culpability” in R v Whyte (2002) 55 NSWLR 252; [2002] NSWCCA 343 (“Whyte”), was, in fact or essentially, a reference to the objective criminality of the offending. Whyte was decided in 2002. It is in more recent times, perhaps since the decision in Bugmy in 2013, that the terms have come to be discussed as different, but related, factors in the complex mixture of things to be synthesised in exercising the sentencing discretion. Judge McGrath’s use of the expression “moral culpability” in the context of dealing with the submissions concerning the guideline judgment was at times used synonymously with “objective gravity”. This was understandable but was apt to cause confusion in light of more recent case law.

14. [57]

    Second, while it has become increasingly common for judges to do so, exposing the reasons for the ultimate sentencing outcome does not generally require a sentencing judge to place the objective seriousness of the offence on some putative scale from “low range”, through “mid-range”, to “high range”. In cases involving a standard non-parole period, it will usually be desirable to do because it is only if the case falls in (or above) the so called “middle range of objective seriousness” that the standard non-parole period applies. In FL v R [2020] NSWCCA 114, Wilson J said:

15. [58]

    Had the sentencing Judge in the present case not attempted to place the objective criminality within such a scale, let alone attempt to do so more than once, his Honour’s remarks as to the relevant factors relevant to objective criminality were impeccable. His Honour identified those features that made the case more serious objectively and, by reference to the guideline judgment and subsequent cases applying the driving guideline to dangerous navigation, the aggravating features that did and did not apply.

16. [59]

    Third, the utility of such putative scales of objective seriousness in illuminating the reasons for a particular sentencing outcome has been questioned. For example, in Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464; [2012] NSWCCA 162 Basten JA said at [88]:

17. [60]

    Fourth, linguistic parsing of the various terms used to express what is often the same thing, or a closely related thing, has become something of a lawyers’ picnic (or perhaps, in fairness, a judges’ picnic). Whatever one makes of expressions such as the “gravity of the offence”, the “objective seriousness of the offence”, an “offender’s moral culpability” or their “blameworthiness”, the ultimate question is: what is the appropriate sentence based on the seriousness of the offence, including its consequences, and the individual circumstances of the offender? There is never a single correct answer to that question, but the range of answers derives from an instinctive synthesis of many, often contradictory, considerations. If an offender was subject to abuse or dysfunction as a child and that is a matter relevant to sentence, one would expect the result of the synthesis to be the same whether that factor is placed in a pigeon-hole labelled “moral culpability” or (mistakenly) taken to inform an evaluation of the objective seriousness of the offence. Nevertheless, the Director is correct to emphasise that an assessment of objective seriousness of an offence is essential in setting the parameters of an appropriate sentencing outcome.

18. [61]

    Fifth, and finally, because Judge McGrath identified, correctly and carefully, the matters relevant to an evaluation of the objective seriousness of the offence, it is a case where the error asserted may be established but it may have little or no impact on the sentence finally imposed. In other words, if the sentence is otherwise within the appropriate range of sentences, the Court should not interfere to increase the penalty despite the error: see Manojlovic v R; R v Manojlovic [2020] NSWCCA 315 at [159] (Hoeben CJ at CL) and [225]-[246] especially at [243] (N Adams J) (“Manojlovic”). This issue will be addressed separately under a consideration of the Court’s “residual discretion” not to uphold the appeal despite error being established.

19. [62]

    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:

20. [63]

    This submission was discussed at the hearing:

21. [64]

    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. [65]

   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. [66]

   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. [67]

   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. [68]

   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.

5. [69]

   The guideline involved two distinct components. The first, as modified in Whyte, was that “a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement”. Judge McGrath applied this aspect of the guideline and, despite the respondent’s compelling personal circumstances and their impact on her moral culpability, imposed a full-time custodial sentence. That is no small thing. As Yehia J wrote recently: [24]

6. [70]

   The “numerical guideline” of three years was expressed to apply to a plea of guilty of limited utilitarian value. Mr Whyte himself pleaded guilty after his trial commenced and received a discount of 10%. The present respondent pleaded guilty in the Local Court and received a “sentencing discount” of 25%.

7. [71]

   While the guideline on culpable driving has been held to be, and may be, an appropriate “check” to sentencing in offences of culpable navigation, the analogy between the offences is not perfect. Offences under s 52A are far more prevalent than offences under s 52B. An interrogation of the Judicial Commission’s statistical database (at the date of writing) discloses a total of 158 offences deal with under s 52A(1) and (3) during the period 2018 to date. There are only four offences recorded under s 52B(1) and (3). The gap widens further when one includes the statistic for offences resulting in grievous bodily harm rather than death. The prevalence of an offence is a matter relevant to the significance of general deterrence and is one of the reasons the Court embarked in the late 1990s on promulgating guidelines for certain prevalent offences, namely armed robbery, break enter and steal, culpable driving and importing drugs. As far as I can tell this is the first time somebody in New South Wales has been charged following a death resulting from the dangerous operation of a kayak or canoe. The type of vessel makes many of the aggravating features of the frequently recurring driving case irrelevant to the respondent’s offence. Examples of such are the number of people put at risk, degree of speed, competitive driving and escaping police pursuit. The analogy is more apposite, but still not perfect, in the case of somebody navigating a speed boat or ferry.

8. [72]

   The final observation about the guideline judgment flows back to the first; it is not designed to be prescriptive and does not place a straight-jacket on sentencing judges. Spigelman CJ made this very clear:

9. [73]

   This observation is particularly important in the present case because the respondent’s subjective circumstances resulted in a substantial reduction in her “moral culpability” (in the manner used in more contemporary authorities) whereas the guideline “focussed attention on the objective circumstances of the offence”.

10. [74]

    I should also deal with two more of the Director’s specific submissions. The first is the complaint that Judge McGrath erred by saying that he would allow a “further discount” for remorse. It is correct that remorse is not a matter to be afforded a mathematical discount and that the plea was entered in the face of a strong prosecution case. However, the finding that the respondent was genuinely remorseful was more than “open” as it was put by the appellant; the finding was well founded on the evidence and obviously correct. The finding was relevant to a number of sentencing considerations and militated in favour of a more lenient penalty.

11. [75]

    The next was the suggestion that there was a “risk of overweighting and/or double counting” in relation to the finding – again, based on undisputed and credible evidence – that the respondent’s experience in custody will be more onerous because of her personal circumstances, the nature of offence (involving a death of a small child), and her mental health condition. The appellant points out that this matter was taken into account in making the finding of special circumstances and reducing the non-parole period from the usual 75% of the total sentence. There is no merit in this submission. The matter was relevant to both the total sentence and also the length of the non-parole period. As Mason CJ and McHugh J said in Bugmy v The Queen (1990) 169 CLR 525; 1990 [HCA] 18 at 531:

12. [76]

    There is nothing to suggest that Judge McGrath gave the matter too much weight in settling on a starting point which was obviously somewhere in the vicinity of three years and three months, or in the determination of the appropriate non-parole period where the onerous nature of the respondent’s term of imprisonment was entitled to receive even greater weight.

13. [77]

    I have considered many sentences imposed in other cases, a number of which were summarised in a helpful annexure to the Director’s written submissions. The cases overwhelmingly involve dangerous driving.

14. [78]

    Only one of those cases involved an offence of aggravated culpable navigation: Buckley v R; R v Buckley [2012] NSWCCA 85 (“Buckley”). Mr Buckley was charged with two counts under s 52B(2) because the two of the passengers on his motorised fishing boat drowned. He pleaded not guilty and was convicted after trial and there was no sentencing discount for a plea of guilty. He was remorseful, had good prospects of rehabilitation and was hardworking, honest and trustworthy. It was described as a “strong subjective case”, but it was of an entirely different kind to that presented on the respondent’s behalf. There was no suggestion that his moral culpability was diminished because of a history of childhood neglect and trauma or a history of mental illness. Mr Buckley was sentenced in respect of each offence to 2 ½ years with a non-parole period of 12 months. With partial accumulation, he received a total effective sentence of 3 years with a non-parole period of 18 months. The Crown appeal asserting inadequacy of his sentence was unanimously dismissed by the Court of Criminal Appeal.

15. [79]

    I also considered the sentences imposed by Grove J, and his Honour’s remarks in imposing those sentences in R v Reynolds; R v Small [2010] NSWSC 691. It needs hardly be said that the criminality involved in those cases of culpable navigation and manslaughter, where six people were killed, was immensely greater than the criminality involved in the respondent’s case.

16. [80]

    Neither Buckley, nor any of the other cases I have considered, are truly comparable with the circumstances of the respondent’s case. Objectively, there were many aggravating features of the respondent’s case and its impact on the child’s family has been devastating. However, the tragic reality is that every case prosecuted under ss 52A and 52B of the Crimes Act leaves in its wake a cavalcade of pain, grief and devastation.

17. [81]

    From the point of view of the child’s family and friends, the sentence must be thought to be inadequate. However, when full account is given to all relevant purposes of punishment, and the respondent’s particular circumstances are given appropriate weight, the sentence imposed by Judge McGrath was comfortably within the wide discretion entrusted to the sentencing Judge. It is not plainly wrong, unreasonable or unjust.

18. [82]

    I reject ground 2.

The residual discretion

1. [83]

   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. [84]

   In CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9, French and Gageler JJ said at [33] – [34]:

3. [85]

   Kiefel, Bell and Keane JJ said at [54]:

4. [86]

   In Manojlovic N Adams J said:

5. [87]

   In Director of Public Prosecutions v Abdulrahman [2021] NSWCCA 114, Beech-Jones CJ at CL said (with my emphasis):

6. [88]

   I am not satisfied the sentence imposed on the respondent was inadequate. That goes a long way towards establishing that the Court should exercise its discretion not to increase the sentence. I am fortified in that view by the respondent’s affidavit, read on the question of the residual discretion and re-sentencing, which sets out her progress in custody, her difficulties in obtaining appropriate medical treatment and medications since she has been in gaol, and her ongoing anxiety at the continuation of the court proceedings beyond the date of sentence.

7. [89]

   While the Prosecution acted with due diligence and was justified in bringing this appeal, there is no doubt that this is an appropriate case for the exercise of the residual discretion.

Orders

1. [90]

   I would make the following order:

   1. (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. [91]

   LONERGAN J: I agree with Hamill J.

3. [92]

   IERACE J: I agree with Hamill J.