Eaton [2023] NSWCCA 125

• Crown appeal against sentence of imprisonment for death of four year old in kayaking accident
• Error found in assessment of objective seriousness of offence – despite error found sentence not inadequate but comfortably within the wide discretion entrusted to the sentencing Judge in circumstances of case: at [81], [88]
• In considering application of Whyte guideline judgment quoted with approval comments of Yehia J in Bresnahan [2022] NSWCCA 288 on punitive nature of imprisonment

[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: (Bresnahan [2022] NSWCCA 288 at [150])

“It must be remembered that imprisonment is uniquely punitive because it involves the complete loss of liberty, loss of personal autonomy, loss of privacy, forced association, restriction of movement, and exposure to violence and intimidation. In Mainwaring v R [2009] NSWCCA 207, Harrison J (at [71]) made an observation with which I respectfully agree:

‘Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences. In contrast, I have no doubt that the learned trial judge was acutely aware of such matters, as his careful disposition of the case reveals.’”