Chandler v R [2023] NSWCCA 59

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Chandler v R [2023] NSWCCA 59 Hearing dates: 23 September 2022 Date of orders: 22 March 2023 Decision date: 22 March 2023 Before: Beech-Jones CJ at CL at [1]; Hamill J at [81]; N Adams J at [90]. Decision: (1) Extend the time in which the applicant may apply for leave to appeal against sentence up to and including 23 February 2022; (2) Grant leave to appeal against sentence; (3) Set aside the sentence imposed on Christopher Chandler on 14 December 2017; (4) In lieu, impose a sentence of imprisonment, taking into account the offences on the Form 1, of 15 years and 8 months commencing on 12 August 2017 and expiring on 11 April 2033 with a non‑parole period of 10 years and 6 months commencing on 12 August 2017 and expiring on 11 February 2028. Catchwords: CRIME – appeals – appeal against sentence – manifest excess – applicant sentenced to 19 years' imprisonment with non-parole period of 13 years – one count of manslaughter arising from an unlawful and dangerous act – offender struck and killed 18-month-old child by deliberately driving stolen car through fence of suburban home – whilst evading police pursuit and with knowledge of the appreciable risk of serious injury to persons in the backyard – offender was 22 years old and had a substantial criminal history – offender experienced a profoundly deprived and dysfunctional upbringing and suffered from serious mental health issues – whether sentence properly reflected the total criminality of the offender's conduct – relevant factors on sentence – sentencing statistics – where reference made to "comparable cases" – where offender received second highest manslaughter sentence for single offence since relevant statistics have been recorded – where offender received highest sentence for vehicular manslaughter since relevant statistics have been recorded – where offender's sentence is broadly comparable with murder sentences where murder weapon was a motor vehicle – relevant factors on sentence –whether sentencing judge erred in concluding that offence was at the "gravest end of the spectrum" – held no error – finding not to be equated with finding that the offence was in the "worst category" of offending – offender's mental health had no bearing upon assessment of objective seriousness – whether sentencing judge erred in only allowing 5% discount for late plea of guilty – held no error – whether sentencing judge erred in application of Bugmy principles and consideration of applicant's mental illness and you – held no error – whether aggregate sentence manifestly excessive – held by a majority manifest excess established – appeal allowed – offender re-sentenced Legislation Cited: Crimes (High Risk Offenders) Act 2006 Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Road Transport Act 2013 (NSW) Cases Cited: Attwater v R; Maris v R [2021] NSWCCA 17 Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 BW v R [2011] NSWCCA 176 Byrne v R; Cahill v R [2021] NSWCCA 185; (2021) 97 MVR 85 Clare v R [2008] NSWCCA 30; (2008) 181 A Crim R 45 Conte v R [2018] NSWCCA 209; (2018) 86 MVR 239 Craft v R [2021] NSWCCA 131 Crowley v R [2021] NSWCCA 45 Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (NSW) v Abdulrahman [2021] NSWCCA 114; (2021) 96 MVR 309 DS v R; DM v R [2022] NSWCCA 156 Dungay v R [2020] NSWCCA 209 Hallak v R [2014] NSWCCA 48 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Hoskins v R [2021] NSWCCA 169 House v The King (1936) 55 CLR 499; [1936] HCA 40 KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51 Kutschera v R [2015] NSWCCA 73 Magro v R [2020] NSWCCA 25 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Martinez v R [2022] NSWCCA 12 Mitchell v R [2021] NSWCCA 306 Moananu v R [2022] NSWCCA 85; (2022) MVR 331 Obeid v R (2016) 96 NSWLR 155; [2017] NSWCCA 221 Paterson v R [2021] NSWCCA 273 R v Attwater; R v Maris [2017] NSWSC 1710 R v Bellchambers [2010] NSWDC 306 R v Blake Davis [2021] NSWSC 235 R v BW & SW (No 3) [2009] NSWSC 1043 R v Camilleri [2021] NSWSC 221 R v Chandler (No 2) [2017] NSWSC 1758; (2017) 84 MVR 399 R v Crabbe (1985) 156 CLR 464; [1985] HCA 22 R v DF [2022] NSWSC 762 R v JK [2012] NSWSC 710 R v Kilic (2016) 250 CLR 256; [2016] HCA 48 R v LC [2010] NSWSC 815 R v Millwood [2012] NSWCCA 2 R v Musa [2023] NSWSC 198 R v Nguyen [2013] NSWCCA 195; (2013) 234 A Crim R 324 R v Stefanato [2023] NSWSC 73 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Regina v Holton [2002] NSWSC 775 Regina v LC [2010] NSWSC 815, Spark v R [2012] NSWCCA 140 Tabbah v R [2019] NSWCCA 324 Veen v the Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Christopher Chandler (Applicant) Crown (Respondent) Representation: Counsel: I McLachlan (Applicant) A Bonnor (Respondent)