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R v O'Sullivan; Ex parte Attorney-General (Qld); R v Lee; Ex parte Attorney-General (Qld)

Unreported Citation: [2019] QCA 300

This decision concern appeals by the Attorney-General against sentences imposed upon a mother and her partner for the manslaughter of a 22 month old boy. The Court of Appeal held that the sentencing range relied upon by the sentencing judge failed to take account of significant legislative changes in relation to domestic violence against children. This had implications for whether the sentences imposed appropriately denounced the offending. The judgment contains a number of important observations about the effect of legislative change on sentencing ranges, the role of community values in sentencing, the relevance of denunciation in sentencing and how the need for denunciation might impact upon the relevance of remorse in determining an appropriate sentence.

Sofronoff P and Gotterson JA and Lyons SJA

17 December 2019

In June 2016, paramedics found a dead 22 month old boy at a home in Caboolture. [1]. He had been punched in the abdomen by one of the respondents, O’Sullivan. This assault caused internal injuries for which he was not treated, and resulted in his death. [2]. The child had been the victim of sustained neglect abuse prior to this assault, and had spent 22 days in hospital earlier in 2016 as a consequence of this abuse. [4]–[16]. At the time of the killing, O’Sullivan was in an abusive relationship with the other respondent, Lee, who was the mother of the child. [3], [167]. O’Sullivan was a heavy user of drugs. [18]. In the days prior to his death, the child was living in O’Sullivan’s house. [18].

Both respondents were each charged with offences of manslaughter and cruelty with domestic violence as a circumstance of aggravation. Both pleaded guilty to the charges, though O’Sullivan intended to contest the facts under which he was to be sentenced until the morning of the sentencing hearing, when he was informed that his other children would be called to give evidence. [39], [153]. O’Sullivan was sentenced to nine years’ imprisonment for the offence of manslaughter, with a concurrent sentence of one year’s imprisonment for the cruelty offence.  [40]. Lee was sentenced to nine years’ imprisonment for the manslaughter offence, with a concurrent sentence of imprisonment of three and a half years for the cruelty offence. [41]. Taking into account time served, O’Sullivan was eligible for parole after serving nearly two-thirds of the sentence for manslaughter, while Lee was eligible after serving nearly one-third. [40]–[41].

The Attorney-General appealed against the sentences imposed on the ground, inter alia, that they were manifestly inadequate. [42]. The Attorney submitted that the comparative cases that the sentencing judges relied upon did not take into account significant legislative changes relating to domestic violence against children. The key case relied upon had been R v Walsh, an unreported 1986 Court of Appeal decision that stated the sentencing range was five to ten years. [58]. It was argued that a higher penalty was now called for. [57].

Significance of legislative changes

As to the role of legislative change in affecting sentencing decisions, the Court of Appeal (Sofronoff P, Gotterson JA and Lyons SJA) observed that there had been significant statutory amendments since R v Walsh. [69]. After tracing through them ([70]–[92]), their Honours concluded that:

“This sequence of legislative changes since 1997 puts it beyond question that the legislature has made a judgment about the community’s attitude towards violent offences committed against children in domestic settings. The amendments constitute legislative instructions to judges to give greater weight than previously given to the aggravating effect upon a sentence that an offence was one that involved infliction of violence on a child and that the offender committed the offence within the home environment.” [93].

It followed that the sentencing range relied upon at sentence could no longer be relied upon, as it did not take into account the presently applicable legislative provisions. [110].

Interaction between denunciation and remorse in sentencing

Their Honours went on to consider the relevance of denunciation in sentencing, noting that s 9 of the Penalties and Sentences Act 1992 required this to be considered as an aim of punishment. [131]–[139]. The weight to be given to denunciation could be reduced where there was evidence of remorse. Here, O’Sullivan had argued that he had expressed remorse. [130].

Denunciation was distinct from (though a correlative of) retribution ([133]–[146]) and the Court set out its purpose in sentencing as follows:

“Denunciation is intended to vindicate the community values that have been insulted by the wrongful act. It works to confirm the validity of those values by an act of judicial government that repudiates the offending conduct. A denunciatory sentence works to defeat the wrongdoer’s own repudiation of the community value and works to restore the correct moral relationship between wrongdoer and victim. However, a denunciatory punishment must not be disproportionate to the seriousness of the offence. A disproportionate punishment might satisfy the community’s need for vindication of the values that the wrongdoer has insulted, but it would itself constitute an affront to the shared moral value that requires every punishment to be a just punishment. In its excess it would constitute unjust retribution.” [145].

Their Honours opined that “[d]enunciation is a response to what somebody did and not to a person’s character” and how their actions conflict with community expectations. [147]. As a consequence, “denunciation and remorse … occupy different realms because remorse is something personal to the offender”. [148]. Thus, where there is a need to vindicate community values, the requirement that the sentence has a denunciatory effect means that remorse will become a secondary factor in fixing the sentence. [148].

Application to these Appeals

The Court held that O’Sullivan’s sentence had to be set aside, as the sentencing range relied upon was no longer appropriate. [110].

A question arose as to the extent of the remorse he had shown. [150], [155]. Although he pleaded guilty, in the circumstances there was only “some remorse” and “not much of it”. [113]–[116], [153]–[155]. The Court had regard, in addition to the plea, to the fact he had attempted suicide and had been beaten while on remand. [155]–[156].

The context in which the manslaughter occurred required the sentence to denounce the offending “in a demonstrable fashion”. [157]–[158]. The legislative amendments had demonstrated “the community’s deep repugnance and intolerance” of such a crime. [157]–[158]. The sentence had to be “one … significantly more severe” than imposed in past cases. [159]. The cruelty offence also exacerbated the manslaughter offence, and was part of the totality of the offending. [160].

Their Honours re-sentenced O’Sullivan to a head sentence of twelve years’ imprisonment for the manslaughter offence, with no further punishment for the cruelty offence. [162]–[164]. Without the mitigating features, a fifteen-year head sentence would have been imposed. [163].

In respect of Lee, the Court observed that her culpability lay in her neglect of her child. [166]. Though appalling, it differed from unlawful killing of a child by a deliberate violent act. [174]. There was also unchallenged evidence that Lee “was simply unable to protect her son against O’Sullivan”. [175]. While Lee’s conduct was “an affront to community values”, the reasons for it lessened “the sense of indignation”. [177]. A severe head sentence like that imposed by the sentencing judge was warranted, and there was no error in the weight given to mitigating factors. [177]. Lee’s sentence was not inadequate and bore appropriate parity to the new sentence imposed on O’Sullivan. [178].

In the result, the appeal against O’Sullivan’s sentence was allowed and that against Lee’s sentence was dismissed.

S Walpole