Jones v R

[2009] NSWCCA 169

New South Wales
Court of Criminal Appeal

CITATION:	Jones v R [2009] NSWCCA 169
HEARING DATE(S):	16 June 2009
JUDGMENT DATE:	26 June 2009
JUDGMENT OF:	Young JA at 1; Johnson J at 2; Latham J at 45
DECISION:	1. Leave to appeal granted. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentencing - manslaughter, malicious wounding and common assault - offences committed during violent confrontation between members of two families - whether sentences manifestly excessive
LEGISLATION CITED:	Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	R v Jones and Ors [2007] NSWSC 1333 R v Fernando (1992) 76 A Crim R 58 Robertson v R (2007) 177 A Crim R 121 Ward v R (2006) 166 A Crim R 273 Salah v R [2009] NSWCCA 2 R v Vachalec (1981) 1 NSWLR 351 R v O’Donoghue (1988) 34 A Crim R 397 House v The King (1936) 55 CLR 499 Kardoulias v The Queen (2005) 159 A Crim R 252 R v Baker [2000] NSWCCA 85 Markarian v The Queen (2005) 228 CLR 357 R v Kelly (2005) 155 A Crim R 499 Borkowski v R [2009] NSWCCA 102 Stewart v R [2009] NSWCCA 152 Hopley v R [2008] NSWCCA 105
PARTIES:	Adam Samuel Jones Jnr (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2006/3278
COUNSEL:	Mr J Trevallion (Applicant) Mr P Miller (Respondent)
SOLICITORS:	Archbold Legal Solutions (Applicant) Solicitor for Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2006/2007
LOWER COURT JUDICIAL OFFICER:	Buddin J
LOWER COURT DATE OF DECISION:	23 November 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	R v Jones and Ors [2007] NSWSC 1333

2006/3278

YOUNG JA
JOHNSON J
LATHAM J

26 June 2009

ADAM SAMUEL JONES JNR v REGINA

Judgment

1 YOUNG JA: I agree with Johnson J.

2 JOHNSON J: The Applicant, Adam Samuel Jones Jnr, seeks leave to appeal under s.5(1)(c) Criminal Appeal Act 1912 with respect to sentences imposed on 23 November 2007 by Buddin J for the crimes of manslaughter, malicious wounding and common assault.

3 The offences were committed in the early hours of 9 October 2005 in the course of a violent confrontation between members of the Applicant’s family and the family of the deceased, William Smith. The Applicant’s offences were committed against three members of the Smith family. The partly cumulative sentences imposed upon the Applicant were as follows:

(a) malicious wounding of Noah Henry Smith - sentenced to 18 months’ imprisonment to commence on 26 October 2005;

(b) common assault upon Mary Rose Smith - sentenced to four months’ imprisonment to commence on 26 July 2006;

(c) manslaughter of William Smith - sentenced to a non-parole period of five years and three months, to commence on 26 July 2006, with a balance of term of three years.

4 Accordingly, the total effective sentence imposed upon the Applicant for the three offences was one of nine years’ imprisonment with a non-parole period of six years, with both periods to date from 26 October 2005. The earliest date on which the Applicant could be released on parole was 25 October 2011.

5 The sole ground of appeal is that the sentences imposed by Buddin J were manifestly excessive.

Facts of Offences

6 In remarks on sentence delivered on 23 November 2007, Buddin J passed sentence upon six members of the Jones family for a range of offences arising out of the violent confrontation between the Jones and Smith families on 9 October 2005: R v Jones and Ors [2007] NSWSC 1333. His Honour described the background to the offences, and the offences themselves, in a manner which is not challenged in this Court. Given the submissions made in this Court, it is appropriate to set out paragraphs [10]-[31] of Buddin J’s remarks (in which the Applicant is referred to as Adam Jones):

“10 The offenders and their family, as well as the deceased and his family, are Romany gypsies. Although both families were originally from the United Kingdom, they have lived in this country for many years. They reside in caravan parks and lead itinerant lifestyles which see them move around fairly frequently. Although members of the two families were acquainted with each other, they did not know each other particularly well. However the families became closer when the offender Adam Jones married Ellen Smith. Arrangements for the wedding, which took place in November 2004, gave rise to tension between the families. Those tensions led the young couple, who were then aged 18, to elope. Nonetheless it would appear that those tensions had abated by the time the events which give rise to these proceedings occurred.

11 The fatal incident took place at Tuggerah Village caravan park at Kangy Angy on the Central Coast at which members of the Jones family and the Smith family were then residing. Adam Samuel Jones and his wife Lydia Jones were occupying site 55. Adam Jones and Ellen Smith occupied site 41 which was a short distance away. The deceased and Noah Henry Smith, also known as Noah Smith Snr, are Ellen Smith’s uncles. They also resided at the caravan park, albeit on sites at the other end of the park, close to the amenities block. A number of other members of the Smith family also resided at the caravan park.

12 During the evening of 8 October 2005 Adam Samuel Jones, Adam Jones and Lydia Jones were socialising at the caravan park with members of the Smith family. At around about 11 pm an argument developed. On the face of it, the argument was trivial. It seems to have been precipitated by remarks made by Adam Samuel Jones to Ellen Smith’s mother, Mary Isabella Smith. I am satisfied that it amounted to no more than friendly banter. Mary Smith certainly did not take offence at the remarks.

13 The deceased’s reaction however was quite different. He, unlike Mary Smith, did not laugh it off. He became upset with Adam Samuel Jones and told him that he did not appreciate the fact that he was taking ‘the piss out of [Mary Smith] ’. It is not without significance that the deceased had been drinking heavily that day. Indeed he had spent much of the day at a nearby club with his brothers, John and Noah. The evidence indicated that the deceased was an experienced drinker and that he could, and did, consume significant quantities of alcohol on a very regular basis. A toxicology report, conducted at post-mortem, reveals that the deceased had a blood alcohol reading of 0.227. The evidence leads me to the conclusion that the deceased, fuelled by alcohol, was behaving in an aggressive manner during the course of this initial incident.

14 Nonetheless it was the actions of Adam Jones which escalated the tension. He produced a knife which he pointed at the deceased. He said to his father words to the effect of, ‘We can stab him Dad’. The argument then became quite heated. The deceased tried on several occasions to physically attack Adam Jones. He also taunted him by saying that he was not enough of a man to be worth fighting. When the deceased was restrained from attacking Adam Jones, he then grabbed hold of Adam Samuel Jones’ collar and said to him, words to the effect of, ‘Come on, I’ll fight you. You think you’re the big man, let’s see what you can do.’ Louisa Smith, the deceased’s mother, gave evidence that from her observation Adam Samuel Jones was clearly reluctant to engage in a fight.

15 Adam Jones was asked several times to put the knife away and eventually did so. The evidence suggests that the matter was resolved, at least temporarily, when the deceased and Adam Samuel Jones agreed that they would ‘sort things out in the morning’.

16 Various members of the Smith family gave evidence that they anticipated that this meant that the two protagonists would meet, in accordance with Romany gypsy tradition, for the purpose of having a fist fight the following morning. Be that as it may, I am quite satisfied however that various members of both families had other intentions. In any event, the parties dispersed and returned to their respective caravans. The evidence as to what happened at the caravan park from that point until the onset of the fatal incident is, at best, sketchy.

17 Evidence elicited from mobile phone records reveal that a call was made at about 11.30 pm from the phone owned by Adam Samuel Jones to the phone owned by his parents Samuel Jones and Elizabeth Jones who were then residing at the Parklea caravan park. The only direct evidence as to what was said emerges from Michael Bennett, a friend of Samuel Jones, who said that Samuel Jones told him that he had been informed that there were ‘dramas’ up at the caravan park. Whatever was said prompted the couple to travel immediately to Kangy Angy. Samuel Mark Jones was also residing at Parklea at the time and it can readily be inferred that contact was also made with him, probably through his wife. At 11.38 pm the phone owned by Samuel Jones and his wife was used to contact the phone owned by Lydia Jones. At 11.48 pm, the swipe card owned by Samuel Jones and Elizabeth Jones, was used to activate the boom gate at the Parklea caravan park. It is apparent from the phone records that they then left the Parklea area and made their way up the F3 freeway towards the Tuggerah Village Caravan park, where they arrived at approximately 12.30 am.

18 Although he travelled separately from his parents, Samuel Mark Jones also made his way up to Tuggerah arriving there at about the same time as his parents. The mobile phone records reveal that a number of other persons were contacted by Samuel Mark Jones as he travelled to the caravan park. The overwhelming inference from all the evidence, which was led in the case against him, is that he was responsible for recruiting those persons to attend the park for what was anticipated to be some kind of a fight. That inference is made even more irresistible when regard is had to the contents of two of those calls which Samuel Mark Jones made to a Michael Walker. Those calls had been lawfully intercepted by police in respect of an entirely separate investigation. During the course of the trial, I ruled that that evidence was not admissible in the case against the other offenders. Those calls were tendered, without objection, in the proceedings against Samuel Mark Jones.

19 Ellen Smith gave evidence that, prior to the arrival of those persons, she observed her husband, Adam Jones, collect a sword from their van and take it to his father’s caravan. She said that she also observed Adam Samuel Jones collect various items, including a baseball bat, and place them on the ground outside his caravan.

20 At some later stage, Ellen Smith saw Samuel Jones and Samuel Mark Jones in the vicinity of Adam Samuel Jones’ caravan. They were in the company of another male whom she did not know. According to Ellen Smith, Lydia Jones told her that ‘It will be a fair fight’. She also said that when she asked Samuel Jones to ensure that ‘nothing bad happened’, he had replied ‘I can’t baby, it’s out of my hands’.

21 At approximately 1.20 am, the five offenders, other than Lydia Jones, together with at least three other persons who were not known to members of the Smith family, approached the male members of the Smith family from the vicinity of the amenities block. Those persons were armed with a variety of weapons which included hand axes, machetes, swords, knives and iron bars. The Crown case was that those persons participated in a joint criminal enterprise, the purpose of which was to attack the deceased intending thereby to kill him or to inflict grievous bodily harm upon him. The Crown case was that each of the offenders was a principal in the first degree in that each participated in the attack upon the deceased by striking him with a weapon or weapons. There was no challenge on behalf of any of the offenders to the evidence given at trial that Samuel Mark Jones and several other persons were also engaged in the fatal incident. Nor was there any challenge to that aspect of the case during the sentence proceedings.

22 The evidence given by the 11 members of the Smith family who claimed to have witnessed the fatal incident is that no member of their family was armed with a weapon. They gave evidence that the attack had been totally unexpected and unprovoked and that members of their family had been defenceless in the face of what was essentially an onslaught. That part of the evidence was subjected to sustained attack by counsel who appeared on behalf of the various offenders. It is readily apparent from the jury’s verdicts that they rejected that aspect of the evidence given by members of the Smith family. I, too, have little hesitation in rejecting it. In doing so, I have had regard, inter alia, to a significant body of evidence from which it was clearly open to infer that in the period between the initial incident and the fatal incident, various male members of the Smith family, including the deceased, had gathered together a number of weapons in anticipation of a fight between the two families. The weapons which they had collected included a tomahawk, a machete, a meat cleaver, wooden sticks and socks which contained lead objects within them. Those items were located lying together at site 81, which is close to where the fatal incident occurred. It is reasonable to infer that they were secreted there by at least one member of the Smith family. Of particular significance is the fact that DNA consistent with that of each of the deceased, Noah Henry Smith and their father John Smith, respectively, was discovered upon some of those items. Even more importantly, Noah Smith’s blood was located upon one of the weapons. Noah Smith was quite unable, despite persistent questioning, to explain how it may have found its way there. Because Noah Smith was injured during the course of the fight, the only reasonable available inference is that his blood fell onto the weapon either then or whilst the weapons were being carried to site 81. To that material, may be added the evidence of Noah Henry Nathan Smith (Noah Smith Jnr). He told police that his grandfather had been in possession of a pickaxe handle. Somewhat improbably, he sought to retract that observation whilst giving evidence.

23 As I have said, the evidence given by members of the Smith family, that the attack upon them was unexpected and unprovoked and that they were unarmed, simply cannot be reconciled with the evidence to which I have just referred. Moreover, the evidence that the eleven members of the Smith family, amongst whom were several women and children, were all standing around sometime after 1am in the morning for the purpose of socialising, defies belief. The evidence indicates that the women were inside one of the vans whilst the men were outside the van. I am satisfied that the men, at least, had all gathered together in anticipation that a fight was in prospect. John William Smith told police that ‘we were concerned that members of the Jones group would return and start trouble’. He said that if they did so ‘then we would have to fight them as a group’. Caroline Smith said that she had a ‘feeling’ that something would happen. She also gave evidence that as the group of offenders approached, she heard someone yell out words to the effect of ‘they’re here’. There was, of course, no time in the period between the approach of the offenders and the beginning of the fight for the members of the Smith family to arm themselves. It is apparent, in those circumstances, that they had already armed themselves for the very reason that they anticipated that there would be some sort of fight involving the use of weapons.

24 Both Adam Samuel Jones and Adam Jones told police, in recorded interviews, that prior to the fatal incident they observed members of the Smith family gathering weapons together at their end of the park. They asserted that that group of persons, which included the deceased, had also taunted and threatened them.

25 The evidence disclosed that the deceased observed the offenders as they approached from the area of the amenities block. It seems that he was armed at the time with what appeared to be a pick axe handle. As I have already said, other male members of his family were also either armed or had ready access to weapons. The deceased immediately moved towards Adam Samuel Jones and grabbed him around the throat area. The deceased was then struck a number of blows which forced him to the ground. Whilst he lay on the ground on his stomach he was subjected to a further attack. The Crown case is that each of the offenders struck the deceased a number of blows during the course of the fatal incident. Whilst all this was happening, Samuel Mark Jones produced a pistol which he pointed at members of the Smith family. Even if it was only an imitation pistol, the production of it clearly changed the dynamics of what was presumably intended to have been a pitched battle involving the use of weapons. The introduction of the pistol effectively prevented the Smith family members from using their weapons during the course of the fight. This also partly explains why the offenders received only relatively minor injuries from their participation in the fight.

26 The female members of the Smith family, together with several of their children (whom as I have said were inside one of the caravans), heard the commotion and came out to see what was occurring. They each gave evidence as to what they had been able to observe.

27 The Crown case was that the offenders attacked Noah Smith when he attempted to render assistance to the deceased. It contended that there was a joint criminal enterprise, the purpose of which was to attack and wound Noah Smith with the intention of killing him. However the jury’s verdicts are to be understood as indicating that it was only satisfied to the requisite standard that each of the offenders was a party to, and participated in, an attack upon Noah Smith in which the intention of each of them was merely to wound him.

28 A number of witnesses gave evidence that Adam Samuel Jones and Adam Jones each struck him with an axe or a blade. Adam Jones admitted, during a conversation on 20 October 2005 with Ellen Smith, which was covertly recorded by police, that he had stabbed Noah Smith. A knife that he owned, which had the blood of Noah Smith upon it, was subsequently located at the scene by police. Noah Smith gave evidence that Samuel Jones had struck him in the head with an iron bar. Samuel Jones declined to be interviewed by police. His version of events, which was elicited through the evidence of his friend Michael Bennett, with whom he spoke prior to his arrest, was that he in fact had been attacked by Noah Smith. Mr Bennett gave evidence that Samuel Jones told him that he had sustained an injury to his forearm during the course of that attack. There was a photograph in evidence which depicted that injury. So far as that aspect of the matter is concerned, Samuel Jones relied upon self-defence, an explanation which the jury plainly rejected. Nonetheless, I accept that Samuel Jones was struck forcefully with an implement during the course of the fatal incident.

29 Towards the end of the incident, Adam Jones struck Ellen Smith’s 16 year old sister, Mary Rose on the shoulder with an object causing her a minor injury. His case was that she had first struck him in the hand. Although he did sustain an injury to his hand, the jury rejected the offender’s claim that he had been acting in self-defence at the time of that incident.

30 The offenders and their accomplices then fled the scene. At approximately 1.25 am Louisa Smith, the deceased’s mother, called the police emergency service line and requested the immediate attendance of police and ambulance officers at the scene. Police and ambulance officers arrived there at approximately 1.40 am. Unfortunately, despite the efforts of ambulance officers, nothing could be done to revive William Smith who had already died. Noah Smith, who was in a distressed state and was bleeding heavily, was treated at the scene. He was then taken to Gosford Hospital where he received further treatment from Dr Arora. He had sustained a deep 20 cm laceration, which ran from his neck and down his back, as well as lacerations to his scalp, face, hands and groin. He had also suffered a blunt force trauma to his forehead. In Dr Arora’s opinion, the wound to his back would have been occasioned by a weapon with a blade measuring at least 20 cm.

31 Dr Lee, a forensic pathologist, conducted the post-mortem upon the deceased. His examination revealed that the deceased had sustained 18 sharp force injuries to his head, face, torso, arms, hands and legs. Dr Lee described those injuries as being stabbing, chopping and slash type wounds. The fatal injury was caused by a single blow which penetrated the deceased’s left lung. The Crown was unable however to attribute the infliction of the fatal wound to any particular offender. It was Dr Lee’s opinion that that injury was most likely to have been caused by a carving type knife. The deceased’s injuries were caused, in his opinion, by a variety of weapons. Some of the injuries were consistent with the use of weapons such as a machete or an axe or something of a similar kind, whilst others were consistent with having been inflicted with a smaller knife.”

7 It will be observed that the Applicant’s offences are described by Buddin J at paragraphs [25] (manslaughter), [27]-[28] (malicious wounding) and [29] (common assault) of the remarks on sentence extracted above.

8 Following the offences, the Applicant fled to Queensland where he was arrested on 26 October 2005. He remained in custody thereafter.

Some Further Findings of the Sentencing Judge

9 Having regard to the issues raised on this application, reference should be made to other findings of the learned sentencing Judge.

Basis for Sentence for Manslaughter

10 Buddin J observed, at [70], that he proposed to sentence the five offenders convicted of manslaughter, including the Applicant, upon the basis that each was a principal in the first degree to the manslaughter of the deceased and that the basis upon which their liability was to be assessed was that each was acting, at the relevant time, in excessive self-defence or defence of another or others and also under provocation.

11 Buddin J made further findings at [116]-[117] concerning the circumstances of the manslaughter offence:

“116 The offenders are to be sentenced upon the basis that they acted pursuant to a joint criminal enterprise to strike the deceased with an intention to kill or inflict grievous bodily harm upon him. As I have said, it is neither possible nor even necessary to identify who inflicted the fatal blow. It is common ground that it is an aggravating feature that the offences involved the use of weapons: s 21A(2)(c) of the Act. It is also appropriate to have regard to the fact that each of the offences were committed in company: s 21A(2)(e); R v Imnetu [2006] NSWCCA 203. Both the deceased and Noah Smith would inevitably have felt both fearful and powerless in the face of an attack of the present kind.

117 I have not overlooked the fact that the offenders are to be sentenced upon the basis that they were, to some extent, provoked. That is a mitigating matter which is specifically referred to in s 21A(3)(c) of the Act but it is nonetheless important to ensure that the matter is not given undue weight in a case in which it was also a factor in reducing the various offenders’ culpability for the death of William Smith from murder to manslaughter. In assessing this aspect of the matter I have had regard to the principles enunciated in R v Alexander (1994) 78 A Crim R 141 at 144.”

The Applicant’s Subjective Features

12 The learned sentencing Judge adverted to the Applicant’s subjective features at [80]-[88]:

“80 Adam Jones was born on 2 August 1986 and is now aged 21. Although he was born in Australia he went to live in the United Kingdom at the age of 3. Whilst in the United Kingdom he received some schooling. His family returned to Australia when he was 10 years old and he attended primary school for a short period of time thereafter. Although he received no formal education after the age of 12, he is said to have acquired good numeracy and literacy skills through tuition from his family.

81 The offender worked with his father doing menial labouring jobs until he married at the age of 18. He thereafter became self-employed. His wife has now returned with her family to the United Kingdom to live and she and the offender are in the process of getting a divorce.

82 The offender informed the author of the pre-sentence report that he disputes some aspects of the Crown case, but the areas of disagreement are not of any great moment. Although he professed not to know what started the conflict between the families that night, he has nonetheless accepted responsibility for his actions on the night. The author of the pre-sentence report observed that he ‘has expressed his sorrow at the death of the victim … that was caused [by the actions of his father and himself] …and the rift this has caused between both families’.

83 At the time of the offence, the offender was accustomed to consuming alcohol once every two months or so and conceded to Mr Watson-Munro that he was engaged in a ‘pattern of heavy binge drinking’. He said that although he had consumed some alcohol on the night in question, he accepted that it ‘was not at such a level that he was entirely unaware of his actions or their consequences’.

84 Mr Watson-Munro arrived at the following conclusions about the offender:

It is apparent that [the offender] has suffered from a range of psychological issues from early childhood. This arises from the isolation imposed upon him by virture [sic] of a strong family bond dynamic and tradition, according to his Romany heritage. Hence whilst he appears to have been fairly secure in terms of his immediate family, paradoxically the isolation arising from this and his itinerant lifestyle has precluded any real opportunity for this man to establish meaningful peer group relationships beyond this constellation. This no doubt coupled to his limited education has coloured his view of the world, which is of some relevance in terms of his judgment and capacity to critically evaluate problem situations free from emotional bias. Given the strong dependence that [the offender] has had upon his family, it is apparent that he would willingly follow their direction without readily questioning the broader implications arising from this lifestyle.
…
Arising from a fairly disjointed and itinerant life involving minimal formal education and extensive travel within Australia and the United Kingdom, [the offender] has developed a fairly myopic view of the world, which no doubt has reinforced the strong dependency that he has upon his family unit arising from the fairly intense bonding that has occurred by virtue of their isolation from the broader community. This dynamic has been further aggravated by his relatively young age and attendant immaturity. These issues are of considerable relevance to his mood state, judgment and behaviour at the material time.


85 The offender is described in a testimonial as a ‘caring and sensitive young man… [who] is devastated by the result that his actions have caused to both families, a burden that he will carry with him for the rest of his life’. The clergyman who officiated at the offender’s wedding to Ellen Smith indicated his ‘complete surprise to learn of the events that bring [the offender] to court’. He expressed the view that the offender ‘is genuinely sorry and repentant for his actions’.

86 The offender is reported to have been spending his time in custody in a productive fashion. He was originally employed as a sweeper but now works as a spray painter. His supervisor describes him as a good worker who relates well to both staff and inmates. Furthermore, he has completed a number of educational programs, including a TAFE course in carpentry. He has the continuing support of his mother and his younger siblings who visit him and his father on a regular basis.

87 Mr Watson-Munro also observed that:

[h] is exposure to the harsh reality of maximum security prison life has had a salutary impact upon him and reinforced a developing resolve to deal with some of his underlying psychological issues. At examination [the offender] expressed remorse for his behaviour which appears to be genuine.

88 His only previous convictions were recorded in the Local Court in March 2006 and in the Children’s Court in May 2006 and involved offences of dishonesty rather than violence. In the Local Court matter, he received a one month sentence of imprisonment for obtaining money by deception. In respect of the matters in the Children’s Court, he was placed on probation for 18 months for offences of making a false instrument and receiving stolen property.”

Applicant’s Pleas of Guilty

13 Just prior to the commencement of the trial at which the Applicant (and other members of the Jones family) were charged with the murder of William Smith and wounding Noah Smith with intent to murder, the Applicant offered to plead guilty to manslaughter and malicious wounding. When that offer was refused by the Crown, the Applicant pleaded guilty to manslaughter and malicious wounding upon his arraignment before the jury. The Crown declined to accept those pleas of guilty in discharge of the indictment and the trial of the Applicant (and others) proceeded before the jury between 21 February and 2 July 2007. The jury acquitted the Applicant of murder and wounding with intent to murder and an alternative count of wounding with intent to do grievous bodily harm, but convicted him of manslaughter, malicious wounding and common assault.

14 With respect to the Applicant’s pleas of guilty to manslaughter and malicious wounding, which were not accepted by the Crown, Buddin J adverted to the relevant authorities and concluded at [123]:

“The Crown submits that a discount in the range of 10% - 15% should be extended to each of the offenders. Counsel for the relevant offenders suggested that a discount of up to 20% was called for. I am inclined to the view that a discount in the order of 15% is appropriate in the circumstances of the present case. In doing so I have had regard to the timeliness of the pleas, and to the observations of the Court of Criminal Appeal in R v FD & JD (supra) in which it was suggested that pleas of guilty offered in circumstances such as the present ought properly to have attracted a discount somewhere around the mid-point of the range in Thomson & Houlton (at 422).”

Contrition and Remorse

15 Buddin J referred to submissions concerning the Applicant’s contrition and found, at [124], that the Applicant accepted responsibility for his actions and that he was “somewhat remorseful for having so conducted himself”.

The Role of the Applicant

16 His Honour said with respect to the Applicant at [126]-[127]:

“126 Adam Jones was a young man of 19 at the time of these offences. Although he played a pivotal role in the events which led to the fatal incident and is properly to be regarded as an adult so far as his actions are concerned, he is, and was, far from wise in the affairs of the world. Moreover, he was still very much under the influence of his family, particularly his father. His life within that family was a very insular one. I regard his age as having some relevance to the sentencing exercise: s 21A(3)(j). His age cannot however be regarded as having the significance which may have been attributed to it had he been younger and had he not conducted himself in the manner in which he did on the night in question.

127 Given all the features of the case to which I have referred, I am of the view that each of the offenders has ‘good prospects of rehabilitation’: s 21A(3)(g).”

17 Having referred to issues of accumulation, concurrency and totality, Buddin J turned to the question of parity and made findings, including further findings concerning the role of the Applicant, at [130]-[131]:

“130 That leaves the question of parity as between the five main offenders. This aspect of the sentencing task is not without its difficulties. Prima facie, persons who are involved in a joint criminal enterprise to commit a particular offence can expect to have the objective gravity of their offending assessed at the same level. I have already indicated however that the roles played by Samuel Jones and in particular Elizabeth Jones were such as to entitle them to a penalty which is a little less severe than the other three offenders.

131 Notwithstanding the fact that there are differences in the circumstances of each of the other three principal offenders, I am unable to see a basis upon which it would be appropriate to differentiate between the sentences imposed upon them. I should add that counsel who appeared on behalf of each of those offenders, as well as the Crown, indicated that they agreed with that approach. It is nevertheless necessary to briefly explain why I have reached that conclusion. Adam Jones is younger than the other two and I have concluded that his immaturity and dependency on his family played some part in the reason for his having committed these offences. Unlike his father he has no Form 1 offences to be taken into account, although he does have the conviction for common assault which is to be brought into play. However, his role throughout the entirety of the evening which culminated in the fatal incident, was a critical one. Furthermore, he must bear responsibility for having turned the initial argument from a verbal argument into something considerably more serious by having produced the knife and threatening to use it.”

Special Circumstances

18 A finding of special circumstances was made with respect to the Applicant (and others) at [137], principally to reflect the fact that each offender was to serve their first term of imprisonment and would need an extended period upon release from custody to re-integrate into society and also because the sentences were to be partly accumulated.

Sentencing for Manslaughter

19 With respect to sentencing for the crime of manslaughter, his Honour said at [135]-[136]:

“135 The various authorities to which I earlier referred make plain that there is no established tariff for the offence of manslaughter. Nevertheless, I have derived some assistance from a number of cases which, the Crown submitted, were somewhat comparable to the present case and as such give some indication as to the appropriate range. The cases to which I was referred by the Crown are R v Ladd [2001] NSWSC 1055; R v Bullock [2005] NSWSC 1071; R v Berrier [2006] NSWSC 1421; R v Cavanough [2007] NSWSC 561 and R v Cakovski [2005] NSWSC 1001. For completeness I should indicate that I have had regard to the review of relevant authorities undertaken in R v Forbes (2005) 160 A Crim R 1 at 37-43 and in Cakovski (supra) at pars 35-6.

136 It appears to be common ground that, with the exception of the decision in Ladd (supra) (in which the offender had a significant prior history including a conviction for murder), those cases suggest that a head sentence in the order of 7½ years to 9 years with a non-parole period of 5-6 years may be appropriate in a case such as the present. Notwithstanding the well recognised limitations of that kind of material and although the exercise of the sentencing discretion is for the Court alone, I am disposed, in what the Crown aptly described, as the unique circumstances of the present case, to have some regard to what those authorities indicate.”

20 Before moving to pass sentence upon the offenders, Buddin J concluded at [142]:

“In the final analysis, it is necessary to impose sentences which properly reflect the objective gravity of the offences in question. Furthermore, the sentences must give effect not only to the various matters referred to in s 3A of the Act but also to the maximum penalty prescribed by the legislature. The considerations to which I have just referred apply equally to the non-parole period and to the overall sentence: see R v Simpson (2001) 53 NSWLR 704. This case involves the death of a man following an unrestrained attack upon him by a number of persons during the course of which a number of dangerous weapons were used. Another man was badly injured when he attempted to assist the deceased. The attack took place in the presence of, and was witnessed by, a number of members of the deceased’s family, including relatively young children. A message must be sent out that the community will not tolerate disputes, even those of an apparently private nature, being resolved in the fashion in which the present one was. Notwithstanding the circumstances in which the offenders committed these offences, a human being has needlessly lost his life. Nothing less than custodial sentences of some length can thus be countenanced.”

Submissions of the Parties

21 Mr Trevallion, counsel for the Applicant, submitted that having regard to the strong subjective case of the Applicant and the circumstances of the offences:

(a) the overall sentences were manifestly excessive; and

(b) his Honour erred in finding that a discount of 15% for the pleas of guilty was appropriate in the circumstances of the Applicant’s case.

22 Mr Trevallion submitted that the learned sentencing Judge had not given appropriate weight to the subjective circumstances of the Applicant, nor the provocative conduct of the deceased and other members of the Smith family. In particular, relying upon R v Fernando (1992) 76 A Crim R 58, it was submitted that his Honour did not give appropriate weight to the way in which the Applicant’s membership of the Romany gypsy community helped to explain, or throw light upon, his involvement in the offences and his particular circumstances.

23 With respect to the Applicant’s level of culpability, Mr Trevallion pointed to the fact that the initial dispute between the two families arose because of the Applicant’s desire to marry Ms Smith and their subsequent elopement and marriage in secrecy, together with the dynamics within the Jones family which influenced the Applicant. Particular reference was made to the report dated 12 September 2007 of Mr Watson-Munro, psychologist, in the passages extracted by Buddin J at [84] of the remarks on sentence (set out at [12] above).

24 Mr Trevallion emphasised the extent of the provocative behaviour of the deceased, and the deceased’s family, which served to mitigate the Applicant’s culpability.

25 Reliance was placed upon sentencing statistics from the Judicial Commission of New South Wales for manslaughter offences, in support of the contention that the sentence for manslaughter in this case was manifestly excessive.

26 With respect to the discount allowed for the Applicant’s pleas of guilty, Mr Trevallion submitted that insufficient weight had been given to what was said to be the very substantial saving of court time and resources and that a greater discount should have been allowed in this case.

27 The Crown submitted that the sentencing Judge gave careful consideration, and appropriate weight, to the Applicant’s subjective features. Likewise, the Crown submitted that his Honour had carefully considered the issue of provocation on sentence, recognising the need not to allow the Applicant a double credit in this respect, given that an element of provocation had operated in the Applicant’s favour with his acquittal of murder.

28 The Crown pointed to decisions of this Court which have emphasised the need for particular care with respect to the use of sentencing statistics generally (Robertson v R (2007) 177 A Crim R 121 at 127 [36]) and other sentencing decisions for manslaughter: Ward v R (2006) 166 A Crim R 273 at 284-289 [59]-[74]; Salah v R [2009] NSWCCA 2 at [37]-[41].

29 With respect to the discount allowed for the Applicant’s pleas of guilty, the Crown submitted that no error had been demonstrated in this respect, and that a 15% discount lay within the discretion of the sentencing Judge.

30 The Crown submitted that this was a serious case of manslaughter, associated with offences of malicious wounding and assault committed against two other victims. The Applicant had played a significant role in the violent confrontation between the two families, and had escalated the tension directly when he produced a knife and, at a later point, was armed with a sword.

31 The Crown submitted that the appeal ought be dismissed.

Decision

32 In view of submissions made in support of the application, it is appropriate to recite some basic principles.

33 The Court of Criminal Appeal functions within well-established jurisdictional boundaries and is concerned, on an application for leave to appeal against sentence, primarily to ascertain whether the decision of the first-instance Judge was in error: R v Vachalec (1981) 1 NSWLR 351 at 353. An appeal to this Court is not by way of rehearing, and error must be established before the Court may intervene: R v O’Donoghue (1988) 34 A Crim R 397 at 401. This Court is bound by findings of fact of the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King (1936) 55 CLR 499 at 504: Kardoulias v The Queen (2005) 159 A Crim R 252 at 265 [56].

34 To the extent that some of the Applicant’s submissions assert that “insufficient weight” was given to a factor or that “appropriate weight” had not been given to another factor, it is timely to refer to the observation of Spigelman CJ in R v Baker [2000] NSWCCA 85 at [11] that “questions of weight in the exercise of a discretion are matters for the first instance judge” and that “the circumstances in which matters of ‘weight’ will justify intervention by an appellate court are narrowly confined”.

35 The Applicant does not contend that there is patent error in this case, but submits that there is latent error in that, having regard to the findings of fact made, the sentences imposed upon the Applicant were manifestly excessive. The real question is whether the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at 370-371 [25].

36 As is apparent from the extracts from the remarks on sentence set out earlier in this judgment, the learned sentencing Judge made careful and detailed findings with respect to the objective seriousness of the offences and the Applicant’s subjective circumstances. No error, either patent or latent, has been demonstrated with respect to his Honour’s assessment of the level of the Applicant’s culpability for his crimes and his subjective circumstances.

37 In my view, the decision in R v Fernando does not assist the present Applicant. Mr Trevallion confirmed that the decision had not been relied upon before Buddin J. In R v Fernando, Wood J made clear, at 62, that the same sentencing principles are to be applied in every case irrespective of the identity of the particular offender or his membership of an ethnic or other group, although the Court should not ignore those facts which exist only by reason of the offender’s membership of such a group. The principles in R v Fernando have particular application where deprivation and disadvantage suffered by an offender of Aboriginal race or ancestry exist, which bear upon the commission of the crime, although the application of the principles will depend upon the circumstances of the case: see R v Kelly (2005) 155 A Crim R 499 at 503-504 [17]-[19] (and the cases cited therein).

38 It is apparent that his Honour had regard to the Applicant’s family and social dynamics insofar as they played a part in his involvement in these serious crimes. No error has been demonstrated in his Honour’s approach in this respect.

39 It is apparent from his Honour’s findings of fact that the Applicant had played “a pivotal role” (at [126]) and that his part throughout the entirety of the evening, culminating in the fatal incident, was “a critical one” and that “he must bear responsibility for having turned the initial argument from a verbal argument into something considerably more serious by having produced the knife and threatening to use it” (at [131]). Whilst acknowledging that the Applicant’s life within the family was “a very insular one” and that he was “still very much under the influence of his family, particularly his father” (at [126]), Buddin J found that the Applicant had played a significant role in the violent confrontation, in which the Applicant was criminally responsible for the death of one man, the wounding of another and the assault of a teenage girl.

40 No error has been demonstrated in his Honour’s allowance of a 15% discount for the Applicant’s pleas of guilty. Bearing in mind that these pleas were offered, for the first time, just prior to the commencement of the trial, the discount allowed fell within the available discretionary range in accordance with the principles summarised recently in Borkowski v R [2009] NSWCCA 102 at [32].

41 References to sentencing statistics for manslaughter offences provide little assistance: Salah v R at [40]; Stewart v R [2009] NSWCCA 152 at [16]-[18]. In manslaughter cases, the circumstances of the offence and criminality involved can vary enormously, and the assessment of these circumstances, and of the criminality, is very much a matter for the judgment of a sentencing judge: Stewart v R at [17].

42 This case is a further example of the disastrous consequences which can flow from a public affray: Hopley v R [2008] NSWCCA 105 at [47]. The Applicant was armed with a weapon and was part of a joint criminal enterprise which saw the killing of a man in circumstances of clearly excessive self-defence. He committed offences of violence against three separate victims.

43 In the present case, the learned sentencing Judge undertook a careful appraisal of the objective circumstances of the offence, and the subjective circumstances of the Applicant, and reached a decision with respect to sentence which was clearly open in all the circumstances of the case. It has not been demonstrated that the sentences passed were unreasonable or plainly unjust so as to make good a ground of appeal based upon a claim of manifest excess. To the contrary, the sentences passed were plainly open and were well within the discretionary range available in the circumstances of the case.

44 I propose that leave to appeal be granted, but that the appeal be dismissed.

45 LATHAM J: I agree with Johnson J.

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