KT v R - [2008] NSWCCA 51

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: KT v R [2008] NSWCCA 51

HEARING DATE(S): 21 November 2007

JUDGMENT DATE:
1 April 2008

JUDGMENT OF: McClellan CJ at CL at 1; Hall J at 44; Price J at 129

DECISION: By majority:
1. Leave to appeal granted
2. Appeal dismissed

CATCHWORDS: CRIMINAL LAW - application for leave to appeal against sentence - manslaughter by dangerous and unlawful act - juvenile offender - principles relevant to sentencing young offenders - whether sentencing judge had sufficient regard to offender's youth and immaturity - whether offender acted as an "adult" - considerations of punishment, general deterrence and rehabilitation of young offender - whether sentence manifestly excessive

LEGISLATION CITED: Children (Criminal Proceedings) Act 1987
Crimes Act 1900

CATEGORY: Principal judgment

CASES CITED: Hearne v R (2001) 124 A Crim R 451
Lowndes v The Queen (1999) 195 CLR 665
Makarian v The Queen (2005) 215 ALR 213
Money v R [2007] NSWCCA 317
MS2 v The Queen (2005) 158 A Crim R 93
R v Adamson (2002) 132 A Crim R 511
R v AEM Snr, KEM and MM [2002] NSWCCA 58
R v Blacklidge (CCA, unreported 12 December 1995)
R v Bus, unreported, NSWCCA, 3 November 1995
R v E (a child) (1993) 66 A Crim R 13 (WACCA)
R v Forbes [2005] NSWCCA 377
R v GDP (1991) 53 A Crim R 112 (NSWCCA)
R v Grenenger [1999] NSWSC 380
R v Hoang [2003] NSWCCA 380
R v Kwon [2004] NSWCCA 456
R v LC [2001] NSWCCA 175
R v Maclauren [2003] NSWSC 799
R v Maguire (CCA unreported 30 August 1995)
R v Morabito (1992) 62 A Crim R 82
R v Marrah [2002] NSWSC
R v MD, NA, BM, JT [2005] NSWSC 344; (2005) 156 A Crim R 372
Melchers v R [2003] NSWCCA 119
R v Nardoni [1999] NSWSC
R v O’Hare [2003] NSWSC 652
R v Pham (1991) 55 A Crim R 128
R v Risteski [1999] NSWSC
R v TJP [1999] NSWCCA 408
R v Tran [1999] NSWCCA 109
R v Voss [2003] NSWCCA 182
R v Wilson [1999] NSWSC 1235
R v SDM (1997) 127 A Crim 318
R v Woodland (2001) NSWCCA 416

TEXTS CITED: Judicial Commission of New South Wales 2007 Sentencing Statistics
Judicial Commission’s Monograph 23 (2006) Sentenced Homicides in NSW 1994-2001

PARTIES: KT (Applicant)
The Crown

FILE NUMBER(S): CCA 1889/2007

COUNSEL: A Haesler SC/D Yehia (Applicant)
M Hobart SC (Crown)

SOLICITORS: Legal Aid Commission (Applicant)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 1680/2006

LOWER COURT JUDICIAL OFFICER: Johnson J

LOWER COURT DATE OF DECISION: 16 February 2007

LOWER COURT MEDIUM NEUTRAL CITATION: NSWSC 83

1889/2007

McCLELLAN CJ at CL
HALL J
PRICE J
TUESDAY 1 APRIL 2008

KT v R

Judgment

1 McCLELLAN CJ at CL: The applicant pleaded guilty to the manslaughter of Kuol Agang. The maximum penalty for the offence is 25 years imprisonment. The applicant was sentenced to a term of 6 years imprisonment with a non-parole period of 4 years. He seeks leave to appeal his sentence.

2 The applicant was 16, almost 17 years of age at the time of the offence. On Tuesday 31 January 2006 at about 11.30 pm he was the front passenger in a vehicle driven by another juvenile, SG who was 17 years old. Another person was in the back seat of the vehicle.

3 They were driving around the streets of Auburn carrying eggs with the intention of throwing them at members of the public, a practice described as “egging.” Most of the eggs had been thrown when they came upon Mr Kuol Agang, a Sudanese man, who was walking north in Harrow Road, Auburn, on his way home to Granville.

4 When the vehicle was near Mr Agang, the applicant threw an egg at him. The egg missed. However, Mr Agang, no doubt surprised, retaliated by throwing either a can or a plastic bottle at the vehicle, striking it near the rear window. He then chased the vehicle.

5 SG continued to drive down Harrow Road until he came to a roundabout where he turned his vehicle around and drove back down Harrow Road until he was opposite Mr Agang. He then did a U-turn and stopped on the side of the road near him.

6 Mr Agang, who was agitated, ran after the vehicle but was held back from approaching it by two men. The applicant and SG got out of the vehicle and ran towards Mr Agang. As this occurred the men holding Mr Agang let him go. The applicant said “let’s fight” and then punched Mr Agang heavily on the jaw.

7 Mr Agang was of slender build. He weighed 60 kg. The applicant was thick set. The force of the punch knocked Mr Agang to the ground. As he fell, he struck his head. There was a loud noise, “like a loud crack”, which was the sound of Mr Agang’s head hitting the ground.

8 The applicant said “you want more? I’ll be back.” Mr Agang was lying motionless on the ground. The applicant and SG ran back to their vehicle and drove away at high speed.

9 When the police and ambulance officers arrived at the scene they found Mr Agang unconscious, with a haematoma to the back of his head. He was taken to Auburn Hospital and then Westmead Hospital where he was operated on for a subdural haematoma. However, on 4 February 2006 he died.

10 A post-mortem examination found that Mr Agang had suffered a fracture to his skull from the base to the middle, estimated to be 10 cm in length. He also had bruising to the left chin and cheek area, caused by the punch by the applicant. There were other abrasions to the skull. The summary of the major internal injuries were: “massive injuries to brain. Brain was deformed and swollen, signs of significant trauma.”

11 When interviewed SG admitted to the police that he was driving the vehicle at the time and in an ERISP nominated the applicant as throwing an egg at Mr Agang, getting out of the car, saying “let’s fight” and throwing a punch at Mr Agang. He described the punch as a hard punch, that Mr Agang fell straight to the ground and that he heard a “boom” noise when Mr Agang fell down.

12 The applicant was arrested and interviewed by the police. He admitted throwing the egg and that he hit Mr Agang “pretty hard.”

13 The applicant said that he was going to speak to Mr Agang “cause he canned the car.” He was asked:

“Q. But as you’ve stated yourself you’ve, you’ve threw an egg at him to start with?

A. That’s no damage. This is damage, money, man.

Q. So you were angry at Mr Kuol for throwing a can at the car?

A. Yeah, I was pretty angry but I didn’t do nothing, went to talk to him.”

14 The applicant was charged with murder on 7 February 2006. On 1 September 2006, he pleaded guilty to manslaughter. The plea was entered on the basis of the commission of an unlawful and dangerous act, being the assault upon Mr Agang.

Ground of appeal

15 The applicant submitted that the sentence imposed was excessive. The essential complaint was that the sentencing judge failed to have sufficient regard to the applicant’s youth and immaturity.

Remarks on sentence

16 In his remarks the sentencing judge provided the following account of the applicant’s personal circumstances at [42]-[57]:

“KT was educated at schools in the Auburn and Granville areas and completed Years 7 to 10 and obtained his School Certificate. It appears that KT was suspended on two occasions in Year 8 for fighting with peers and was struggling to an extent with studies. He started truanting which escalated by Year 10. Nevertheless, he obtained his School Certificate.

Following his departure from school, KT enrolled in a sheet metal work/boiler-making course at a TAFE college, where he attended full time for six months. KT stated that he was not successful in finding employment in this area and ceased attending the course in order to commence full-time employment. Since leaving his TAFE studies, KT has worked as an apprentice plumber, and then as a tiler, for short periods before eventually securing full-time employment as a cabinet maker with a firm in Yennora, where he had been working for six months prior to his arrest.

According to the background report, KT stated that he enjoyed cabinet making and was planning a return to TAFE studies just prior to his incarceration, so that he could obtain an apprenticeship and receive qualifications to become a certified cabinet maker/carpenter.

The oral and documentary evidence confirmed that KT was a punctual, well-mannered and respected worker, whose work was said to be “quite good” . Mr Issa stated that, upon KT’s release from custody, he would provide employment for him once again in the cabinet-making business.

Drug and Alcohol Use and Associates

According to the background report, KT did not present as a young man with a history of problematic drug or alcohol use. He admitted to experimenting with cannabis on one occasion when he was 15 years of age, however stated that he did not enjoy the experience and believed it was a waste of money. Similarly, KT stated that he had tried alcohol on one occasion when he was 16 years of age, but that he did not enjoy the taste and could not finish his drink. There is no suggestion that alcohol or drug use by KT played any part in the commission of the present offence.

According to the background report, KT socialises primarily with his younger brother and with close friends whom he met at school. He stated that their activities are typical of most adolescents and generally involves spending time in each other’s homes, listening to music, watching television, going to the beach and occasionally playing football. KT stated that he did not associate with peers who are involved in anti-social activities or who have involvement with the legal system. KT’s mother reported that she did not hold any concerns regarding her son’s peer associates and that she is familiar and accepting of those peers who visit her home.

A number of character references tendered in the defence case speak highly of KT and his family. The authors of the references describe KT as a person not given to violence.

Conduct in Custody

KT was admitted to Cobham Juvenile Justice Centre on 8 February 2006 and was subsequently transferred to Kariong Juvenile Justice Centre on 14 February 2006, where he has remained until the present time. According to the background report, KT initially experienced some difficulty settling into the institutional routine, primarily resulting from the stress of being incarcerated and being separated from his family. After this initial period, KT’s behaviour has reportedly been of a high standard and he has progressed onto the highest unit in the Centre. KT has taken on the position of the Centre sweeper under the supervision of the maintenance overseer. According to the welfare officer, this position is a privileged appointment and involves cleaning the administration office, clinic and other parts of the building. Centre staff reported that KT appears to be a mature, co-operative and hard-working young man with a polite manner.

KT has been involved in one violent incident only since being admitted to Kariong, being a fight with another inmate on 28 May 2006. According to the background report, perusal of staff reports and consultation with the welfare officer indicates that the other inmate instigated the assault on KT which resulted in KT’s jaw being fractured. KT was hospitalised and underwent an operation to repair the injury on 2 June 2006.

The background report concluded that KT presents as a mature and friendly young man who appears to experience a close relationship with his parents and siblings. He appears to be capitalising on the opportunities presented to him in the custodial setting and continues to receive strong family support.

Psychological Report Concerning KT

A clinical psychologist, Mr Champion, administered to KT the Wechsler Adult Intelligence Scale (WAIS-III) test, which is a standard test of ability for those aged 16 years and over. The results obtained by Mr Champion were the subject of a number of specific submissions by Ms Yehia, counsel for the Offender. It is appropriate to refer to a number of Mr Champion’s findings.

“The picture is one of a reasonably global limitation of intelligence (as reflected in the grosser measures or IQ scores), but not to a level where a formal diagnosis of developmental disability could or would be considered.”

“[16] He is perhaps best seen as a very unsophisticated and intellectually limited individual, with poor reasoning skills and a markedly under-developed level of language based skills.

[17] As indicated, while KT demonstrates significant cognitive deficits in many areas, his scores are above the level where a formal diagnosis of developmental disability as per the DSM-IV criteria would be contemplated; and his scores are above the level where IM placement at school would have been a normal consequence.

…

“[27] In sum KT does not present with obvious signs of a major form of mental illness, psychological disturbance, neurological impairment or problematic AOD [alcohol or drug] history. The significant feature of his presentation continues to be his intellectual limitations and lack of sophistication. There are no obvious indicators for formal psychotherapy, or the consideration of psychotropic medication.”

“[42] In sum, on the basis of this single assessment, and the history as I know it, ones thinks that the ‘risk’ of future violence (of a criminal type) should probably be rated as low. The general impression is of a pointless form of adolescent bravado or perhaps more correctly machismo (in a group situation, ie. with associates being there or there about), demonstrated by an intellectually limited and naive young man who was 16 at the time of the offence.”

Children (Criminal Proceedings) Act 1987

17 His Honour was mindful of the fact that the offence was committed when a single punch was thrown and no weapon was used. It was the striking of Mr Agang’s head on the ground which produced the fatal injuries. His Honour reached the conclusion that the offence was objectively serious and that the level of seriousness exceeded the “level submitted by the counsel for the Offender.” That level had been put by counsel at the lower end of the range of objective seriousness for the offence of manslaughter, constituted by what was said to be “a pointless form of adolescent bravado or machismo which escalated, impulsively and quickly, into an incident where a single forceful blow was struck by [the applicant] to Mr Agang which, tragically, caused him to strike his head forcefully on the ground, thereby sustaining fatal injuries.”

18 The applicant pleaded guilty and his Honour determined that it was appropriate to allow a discount of 25% for that plea. His Honour also concluded that, although the applicant did not immediately show remorse, since being taken into custody he has developed genuine remorse for his crime.

19 With respect to the applicant’s youth his Honour said at [117]-[118]:

“I have given careful consideration to these submissions. The Offender was 16, almost 17, years of age at the time of the offence. His initial conduct, involving the throwing of eggs at persons in the street, has an element of immaturity about it. However, his conduct in returning to the place where Mr Agang stood for the purpose of engaging in a violent confrontation, which led to the infliction of a very powerful blow by him which felled Mr Agang, was not juvenile behaviour. The Offender was powerfully built with the appearance of a young man, and not a child. He had left school and was in employment and was living a life closer to that of an adult than a child. He was out with friends late in the evening.

R v MD

Children (Criminal Proceedings) Act 1987

Principles relevant to sentencing young offenders

20 The applicant was aged 16 years and 11 months at the time of the offence. For the purposes of the Children (Criminal Proceedings) Act 1987, he was a child. The offence of manslaughter is a serious children’s indictable offence and, accordingly, the applicant was required to be dealt with according to law (ss 3, 16 and 17 Children (Criminal Proceedings) Act 1987).

21 Section 6 of that Act provides legislative guidelines in the treatment of young offenders:

“A court, in exercising criminal jurisdiction with respect to children, shall have regard to the following principles:

(a) that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b) that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c) that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d) that it is desirable, wherever possible, to allow a child to reside in his or her own home,

22 The principles relevant to the sentencing of children have been discussed on many occasions. Both considerations of general deterrence and principles of retribution are, in most cases, of less significance than they would be when sentencing an adult for the same offence. In recognition of the capacity for young people to reform and mould their character to conform to society’s norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation. These principles were considered in R v GDP (1991) 53 A Crim R 112 at 115-116 (NSWCCA), R v E (a child) (1993) 66 A Crim R 14 at 28 (WACCA) and R v Adamson (2002) 132 A Crim R 511; [2002] NSWCCA 349 at [30].

23 The law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law. Accordingly, allowance will be made for an offender’s youth and not just their biological age. (R v Hearne (2001) 124 A Crim R 451; [2001] NSWCCA 37 at [25]). The weight to be given to the fact of the offender’s youth does not vary depending upon the seriousness of the offence (Hearne at [24]). Where the immaturity of the offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult. (Hearne at [25]; MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397 at [61]).

24 Although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. There remains a significant public interest in deterring antisocial conduct. In R v Pham & Ly (1991) 55 A Crim R 128 Lee CJ at CL said (at 135):

In short, deterrence and retribution do not cease to be significant merely because persons in their late teens are the persons committing grave crimes

Williscroft

25 The emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders, may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself and has committed a crime of violence or considerable gravity (R v Bus, unreported, NSWCCA, 3 November 1995, Hunt CJ at CL; R v Tran [1999] NSWCCA 109 at [9]-[10]; R v TJP [1999] NSWCCA 408 at [23]; R v LC [2001] NSWCCA 175 at [48]; R v AEM Snr, KEM and MM [2002] NSWCCA 58 at [96]-[98]; R v Adamson (2002) 132 A Crim R 511 at [31]; R v Voss [2003] NSWCCA 182 at [16]). In determining whether a young offender has engaged in “adult behaviour” (Voss at [14]), the court will look to various matters including the use of weapons, planning or pre-meditation, the existence of an extensive criminal history and the nature and circumstances of the offence (Adamson at [31]-[32]). Where some or all of these factors are present the need for rehabilitation of the offender may be diminished by the need to protect society.

26 The weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity (R v Hoang [2003] NSWCCA 380 at [45]). A ‘child-offender’ of almost eighteen years of age cannot expect to be treated substantially differently from an offender who is just over eighteen years of age (R v Bus, unreported, NSWCCA, 3 November 1995; R v Voss [2003] NSWCCA 182 at [15]). However, the younger the offender, the greater the weight to be afforded to the element of youth (Hearne at [27]).

Submissions

27 The applicant’s submissions may be summarised as follows:

· The sentencing judge’s consideration of the youth of the applicant was infected by error. There is no rule, which requires that the principles in R v GDP (1991) 53 A Crim R 112 must be read down because the offence was adult-like or of considerable gravity and committed in a way an adult might.

· Likewise, there is no rule or principle that requires that a judge when sentencing a child, even one nearly 17, to say the elements of punishment and deterrence “must not be subsidiary to the rehabilitation of the offender.” ([2007] NSWSC 83 at [118], his Honour’s emphasis).

· The sentencing judge erred in concluding that the applicant’s conduct in returning to Mr Agang for the purpose of engaging in a violent confrontation was “not juvenile behaviour” ([2007] NSWSC 83 at [117]).

· The sentencing judge’s assessment of the applicant’s behaviour based on his appearance and the fact he was in work and not at school and thus living a life closer to that of an adult than a child, caused his Honour to underestimate the impact of his youth, intellectual deficits and immaturity in respect of his actions and intentions.

28 The Crown submitted that the applicant’s behaviour was that of an “adult thug.” His conduct as a whole should be characterised as adult behaviour. The Crown endorsed the sentencing judge’s remarks that the offence was objectively serious and had been “committed by a young man living in an adult world.” It was submitted that the sentencing judge was justified in regarding punishment and deterrence as significant factors and not subordinate to rehabilitation.

Consideration

29 In my opinion the actions of the applicant were typical of the irresponsible and unthinking actions of an immature person. Although an adult may have acted as the applicant did his actions were not typical of a mature person. The throwing of eggs at innocent pedestrians was a stupid and irresponsible act and an invitation for trouble. The return to pursue Mr Agang was similarly the stupid act of an immature youth. To my mind it is difficult to dissociate the two acts. Both the throwing of the egg and the pursuit and assault of Mr Agang were the acts of an immature person intent upon making trouble for others.

30 His Honour found that both the applicant’s physical attributes and his lifestyle were relevant to the objective criminality of the offence. His Honour found that the applicant was powerfully built with the appearance of a young man. He had left school and was employed. Although these matters were not irrelevant to the ultimate decision as to the appropriate sentence, when determining the part which his youth had played in the offence it was necessary to give consideration to the events which comprised the offence. There are many young people who appear physically mature but are, in fact, emotionally and in other ways quite immature. From a desire for excitement or adventure and without insight into the potential harm to others they conduct themselves in an irresponsible manner. The throwing of eggs was childish. A mature person would have foreseen that retaliation was possible if not likely. The applicant’s action in pursuing and punching Mr Agang was a furtherance of his stupid and reckless aggression and not separate from it. With respect, the applicant’s physical appearance and employment appear to have deflected his Honour from the appropriate understanding of the objective criminality of the offence.

31 Mr Champion, a clinical psychologist, concluded that the applicant was a “very unsophisticated and intellectually limited individual, with poor reasoning skills and a markedly underdeveloped level of language based skills.” He found that he demonstrated “significant cognitive deficits.” Whatever his physical appearance, as his actions confirm, the applicant was an immature person lacking insight into the social acceptability of his actions.

32 The applicant complains that his Honour erred when he said that although the provisions of s 6 Children (Criminal Proceedings) Act 1986 and sentencing principles with respect to young offenders remain relevant “it is appropriate in this case to reflect upon sentence the elements of punishment and deterrence which must not be subsidiary to the rehabilitation of the offender.”

33 In my opinion this submission should be rejected. The conclusion which his Honour expressed reflected the view that he had formed of the significance of the various elements to which he referred when sentencing the applicant. Having discussed each of the elements, his Honour concluded that in the present case punishment and deterrence were as important as the need to fashion a sentence appropriate for the rehabilitation of the applicant. That decision was open to his Honour and, in the circumstances appropriate. Although the applicant’s conduct was the irresponsible act of a young person there is a need to ensure that the adolescents approaching adulthood realise that any act of violence resulting in death will be met with significant terms of imprisonment.

34 It remains to consider whether the sentence was excessive requiring this Court to intervene.

35 In Forbes (2005) 160 A Crim R 1; [2005] NSWCCA 377 Spigelman CJ discussed the difficulty of identifying a sentencing trend or pattern for the offence of manslaughter, for which the permissible sentencing range must be regarded as “particularly wide” (at [141]). His Honour said at [133]-[134]:

R v Blacklidge

R v Weinman

R v Hoerler

within

Morabito v R

R v Maguire

Regina v Woodland

36 The Court has considered various decisions where a sentence for manslaughter in circumstances similar to the present case were imposed. Although they must be approached with caution they provide a useful indication of the range of sentences.

R v Nardoni [1999] NSWSC 1097 – involved a guilty plea to manslaughter following a drunken rage in which Nardoni killed his girlfriend. Grove J imposed an effective sentence of 6 years with a 3 year non-parole period.

R v Grenenger [1999] NSWSC 380 – after a trial for murder, Grenenger was convicted of manslaughter. He had struck a blow to the deceased with a bar stool during a pub brawl. The jury rejected self-defence. Sully J sentenced him on the basis of his unlawful and dangerous act, and imposed a 3 year sentence with an 18 month non-parole period.

R v Risteski [1999] NSWSC 1248 – plea of guilty to manslaughter committed by throwing one punch during a brawl. Dunford J sentenced Risteski on the basis of an unlawful and dangerous act to 5½ years imprisonment with a 3 year non-parole period.

R v Wilson [1999] NSWSC 1235 – plea of guilty to manslaughter. Wilson hit his father about eight times. He thought he was dead and threw him off a boat whereupon the father drowned. Newman J imposed a 3 year good behaviour bond.

R v Marrah [2002] NSWSC 862 – plea of guilty to manslaughter for the beating of a man to whom the deceased owed money. Levine J sentenced Marrah to 6 years 5 months with a 4 year nine month non-parole period.

Melchers v R [2003] NSWCCA 119 (Ipp JA, Buddin J and Smart AJ) – a manslaughter occasioned by one punch. Ipp JA and Buddin J allowed the appeal and entered a verdict of acquittal. Only Smart AJ considered the Crown appeal against a sentence of 3 years with a non-parole period of 2 years and 3 months to be served by periodic detention for manslaughter. Smart AJ found the sentence to be within range.

R v MD, NA, BM, JT [2005] NSWSC 344 (Greg James J) – pleas of guilty to manslaughter. MD who punched the deceased and as the sentencing judge found “in some fashion frightened, propelled, pushed, chased or herded the deceased head long into” a telegraph pole, was sentenced to 5½ years with a 3½ year non-parole period. NA who punched the victim received a sentence of 4½ years with a 2 year non-parole period. BM who was complicit but struck no blows received a sentence of 4 years with a 2 year non-parole period. JT who kicked the deceased received a sentence of 4 years with a 2½ year non-parole period. The Crown appealed the sentences. This Court concluded that the sentences imposed on MD and NA were at the lower end of the scale but were not so manifestly inadequate as to require intervention. However, the Court concluded that the sentence in respect of JT was manifestly inadequate although in the exercise of the court’s discretion it would not intervene. JT had participated in the joint attack of the victim by delivering an intentional kick to his head when he was obviously injured and unable to protect himself.

It is important to appreciate that MD was one of a group who came upon the victim in a park late at night. The offenders, although charged with murder, pleaded guilty to manslaughter. The sentencing judge was provided with agreed facts consistent with that plea. His Honour did not find that they acted as a group, instead finding that some acted individually and some acted in aid of one or more of the others. His Honour was unclear as to the precise sequence of events but said that MD “somehow, in confrontation with the deceased, resorted to physical violence, and at least punched the deceased and at least, in some fashion, frightened, propelled, pushed, chased or herded the deceased, head on into the pole.” Although his Honour found that MD “was propelled into the pole by his own motion” it was the action of MD which caused this to occur. A finding that MD had driven the deceased’s head into the pole would have constituted the offence of murder which was precluded by the fact that the Crown had accepted a plea to manslaughter.

R v O’Hare [2003] NSWSC 652 - Whealy J imposed a sentence for manslaughter of 6 years with a 3½ year non-parole period. The victim was an old man who received a full-bodied punch to head from the offender who was a physically vigorous young man.

R v Maclurcan [2003] NSWSC 799 - Buddin J imposed a sentence for manslaughter after a plea of guilty, of 3 years with a non-parole period of 17 months. The victim received one punch to the head. The accused suffered from a psychiatric illness (bipolar disorder).

R v Kwon

37 In its Monograph 23 (2006), Sentenced Homicides in NSW 1994-2001, the Judicial Commission confirms that juvenile offenders generally receive shorter terms of imprisonment and non-parole periods than adults. The median sentence for manslaughter was 6 years imprisonment with a non-parole period of 3 years (compared to 7 years imprisonment and 4 years 6 months non-parole period for adults). The statistics for 2000-2006 suggest a similar pattern (see Judicial Commission of New South Wales 2007 Sentencing Statistics).

38 Judges of this Court are commonly called upon to sentence for manslaughter or determine on appeal whether the sentence imposed at first instance is adequate. It is common for the sentences, particularly the non-parole period imposed by the court, to be subject to criticism in the media. Sometimes, and understandably that criticism comes from relatives or friends of the deceased. It is commonly found in the editorial and commentary in various newspapers.

39 It is important to bear in mind that the task of sentencing for manslaughter is complex and difficult. Unlike many other offences the Parliament has not provided a standard non-parole period for manslaughter. However, this Court has over many years, and by a multitude of decisions defined a range of penalties which must be considered when sentencing a particular offender. Our system of justice demands that accepted principles be identified and applied. One fundamental principle is that the sentence imposed on a particular offender, having appropriate regard to relevant matters, must be consistent with the sentences imposed on other offenders for a similar offence.

40 In the present case the minimum term provided by his Honour was greater than that which has been imposed on youthful offenders guilty of a single violent and irresponsible act leading to another’s death and constituting the offence of manslaughter. Although the applicant was approaching his 17th birthday and was a physically mature and strong individual, his actions were an irresponsible, random act of violence involving a single blow causing Mr Agang to fall to the ground and hit his head. Mr Agang was a small man who the applicant, in actions typical of an adolescent bully believed he could overbear and assault with impunity. His actions in returning to hit Mr Agang were spontaneous and carried out without reflection or an appreciation of their possible consequences. To my mind a minimum term greater than that imposed in other cases of a spontaneous act of violence by a young person was not appropriate. In my opinion the minimum term should be reduced to 3 years.

41 I am of the opinion that, because of the approach which the courts have previously taken to offences of this nature, in this case the minimum term should be reduced from that originally imposed. However, there is considerable force in the view that, notwithstanding the youth of the offenders, the decisions of the courts for this type of offence have provided a range of penalty which fails to adequately reflect the need for general deterrence and retribution. The recent experience of this Court indicates that the range of penalties imposed on young offenders who commit random acts of violence resulting in death may not have been sufficient to deter others from similar irresponsible criminal behaviour. In my opinion although the circumstances of an individual offence and offender must always be considered, this Court should in future accept that more significant penalties may be required when sentencing offenders for this type of offence.

42 The sentencing judge found that the applicant’s rehabilitation will be substantially enhanced by his continued detention in a juvenile detention centre and made a finding for the purpose of s 19(3) Children (Criminal Proceedings) Act 1987 that there are special circumstances justifying his detention in such a centre. In my view this finding is appropriate and should be reflected in the resentencing of the applicant.

43 His Honour also made a finding of special circumstances justifying an extended period of parole. The applicant submitted that the problem in the sentence imposed lay in the non-parole period rather than in the term of the head sentence. For the reasons I have indicated I have accepted this submission. I also accept that his Honour’s finding of special circumstances was appropriate and that although the non-parole period should be reduced to 3 years the overall term of 6 years should not be varied.

Orders

Children (Criminal Proceedings) Act

44 HALL J: The applicant seeks leave to appeal in respect of a sentence imposed on him on 16 February 2007. He pleaded guilty to the offence of manslaughter with which he had been charged in the alternative on the indictment. The Crown accepted that plea in full satisfaction of the indictment. He was sentenced by Johnson J to a non-parole period of four years to date from 7 February 2006 and to expire on 6 February 2010, with a balance of term of two years to commence on 7 February 2010 and to expire on 6 February 2012.

45 A finding of special circumstances was made under s.19(3) of the Children (Criminal Proceedings) Act 1987. The sentencing judge directed that the applicant serve his sentence prior to release to parole as a juvenile offender. The applicant under the sentence will be eligible to be released to parole on 6 February 2010.

46 In the grounds of appeal dated 31 July 2007, the applicant gave notice that he intended to rely upon one ground only in the following terms:-

“The sentence imposed was excessive and some lesser sentence should be imposed because his Honour failed to have sufficient regard to the applicant’s youth and immaturity.”

47 The applicant’s date of birth is 5 February 1989. He was, accordingly, 16 years and 11 months of age at the time of the offence and was 18 years of age at the time of sentence.

The facts

48 The statement of facts tendered at the sentencing hearing, paragraphs 5 to 20, recorded the factual circumstances relating to the offence and the events immediately following. I reproduce those paragraphs below:-

“

Facts

5. The facts of the offence are outlined in the ROS at pages 1.3 to 6.28. In summary, on Tuesday 31 January 2006, at about 11.30 pm the applicant (aged 16, turned 17 on 5 February 2006) was the front passenger in a vehicle, a green Ford Laser sedan, driven by another juvenile, SG (17 years old). Another person was in the back seat.

6. They began driving around the streets of Auburn with a dozen eggs they had purchased with the intention of throwing them at members of the public from their moving vehicle, a practice described as ‘egging’.

7. Most of the eggs had been thrown from their vehicle at members of the public, when they came upon Mr Kuol Agang, a Sudanese man, who was walking north in Harrow Road, Auburn, on his way home to Granville.

8. When the vehicle was near Mr Agang, the applicant threw an egg at him. The egg missed him and he retaliated by throwing either a can or a plastic bottle at the vehicle, striking it near the rear window. He then chased the vehicle.

9. SG continued to drive down Harrow Road until he came to a roundabout and he turned his vehicle around and drove back Harrow Road until he was opposite Mr Agang. He then did a U-turn and stopped on the side of the road near him.

10. Mr Agang, who was agitated, ran after the vehicle and was held back from approaching the vehicle by two men. The applicant and SG got out of the vehicle and ran towards Mr Agang. As this occurred the men holding Mr Agang let him go. The applicant said ‘let’s fight’ and then punched Mr Agang heavily in the jaw.

11. Mr Agang was of a slender build. He weighted 60 kg. The applicant was thick set. The force of the punch knocked Mr Agang to the ground. When he did so, he struck he head on the ground.

12. When this occurred there was a loud noise, like a loud crack, which was the sound of Mr Agang’s head hitting the ground.

13. The applicant said ‘You want more? I’ll be back’. At this time Mr Agang was lying motionless on the ground. The applicant and SG ran back to their vehicle and drove away at high speed. The applicant was driven home by SG.

14. Police and ambulance arrived at the scene where they found Mr Agang unconscious with a haematoma to the back of his head. He was taken to Auburn Hospital and then Westmead Hospital where he was operated on for a subdural haematoma. On the

4 February 2006, Mr Agang was confirmed as being brain-dead.

15. On post-mortem it was found that Mr Agang had suffered a fracture to the skull from the base to the middle of the skull, estimated to be 10 cm in length. He also had bruising to the left chin and cheek area, caused by the punch by the applicant. There were also abrasions to the skull. The summary of the major internal injuries were: ‘massive injuries to brain. Brain was deformed and swollen, signs of significant trauma’.

16. Police obtained registration details in relation to SG’s green Ford Laser. SG admitted to police that he was driving the vehicle at the time and in an ERISP nominated the applicant as throwing an egg at Mr Agang, getting out of the car, saying ‘let’s fight’ and throwing a punch at Mr Agang, which he said was a hard punch, that Mr Agang fell straight to the ground and that he heard a boom noise when Mr Agang fell down (Q.248, 249).

17. KT was subsequently arrested and was interviewed by police by ERISP and admitted throwing the egg (Q.46), that the person ran after their vehicle, and that he (the applicant) was solid and the other person was thin, that he hit the person pretty hard (Q.323), like a normal punch (Q.324) and he went down (Q.330) and hit his head (Q.332).

18. KT was charged with murder on 7 February 2006.

19. The offence was not some act of childish bravado, rather, it occurred after an egg was thrown at an unknown person in a loutish manner. That person reacted and threw a bottle or a can back at the car. The applicant became angered by this act and did not act impulsively as suggested in the applicant’s submissions but in a vindictive and extremely aggressive manner.

20. The applicant became angry when the object thrown by Mr Agang hit the vehicle. They turned around and came back to confront Mr Agang. They alighted from the vehicle and ran towards him and the applicant punched him, causing him to fall to the ground.”

The remarks on sentence

49 In his detailed remarks on sentence, the sentencing judge noted that s.24 of the Crimes Act 1900 prescribed the maximum penalty for the offence of manslaughter as 25 years. His Honour observed that it was common ground that the plea of guilty by the applicant to manslaughter was entered on the basis of the commission of an unlawful and dangerous act, being the assault upon the victim which caused him to fall and strike his head heavily to the ground, thereby sustaining fatal injuries.

50 The remarks on sentence detailed the relevant subjective circumstances. The applicant did not give evidence in the sentencing proceedings. The evidence at the sentencing hearing included a report dated 1 November 2006 from Mr Peter Champion, clinical psychologist, the oral evidence of the applicant’s mother and from the applicant’s employer at the time of his entering custody on 7 February 2006.

51 His Honour noted that the applicant had no prior criminal history and that he completed Years 7 to 10 and obtained his School Certificate. It appeared that he had been suspended on two occasions in Year 8 for fighting with peers and was struggling to an extent with his studies. He commenced truanting which escalated by Year 10. His Honour noted that he attended TAFE College for six months on a full time basis in a sheet metal worker/boiler-making course and after leaving his TAFE studies, he eventually secured full time employment as a cabinet maker where he had been working for six months prior to his arrest.

52 As noted in the remarks on sentence, there was no suggestion that alcohol or drug use played any part in the commission of the offence. Reference was made in the sentencing remarks to character references and that the authors of those references described the applicant as a person not given to violence.

53 The report of Mr Champion was considered and extracts from it were included in the remarks on sentence. These included the following observation by Mr Champion’s (paragraph 12):-

“The picture is one of a reasonably global limitation of intelligence (as reflected in the grosser measures or IQ scores), but not to a level where a formal diagnosis of developmental disability could or would be considered.”

54 An extract from paragraph 42 of the report was also referred to in the sentencing remarks. The extract stated:-

“In sum, on the basis of this single assessment, and the history as I know it, one thinks that the ‘risk’ of future violence (of a criminal type) should probably be rated as low. The general impression is of a pointless form of adolescent bravado or perhaps more correctly machismo (in a group situation, ie, with associates being there or thereabout), demonstrated by an intellectually limited and naïve young man who was 16 at the time of the offence.”

55 The sentencing judge at some length dealt with the objective seriousness of the offence and relevant subjective factors including, in particular, the applicant’s youth.

56 In paragraph 62 of the remarks on sentence, his Honour observed:-

“A central issue in the determination of sentence is an assessment of the objective seriousness of the offence. As the authorities referred to earlier in these reasons made clear, a wide range of criminal conduct is encompassed in the crime of manslaughter. It is necessary to consider the particular circumstances of the present case, by reference to relevant statutory and common law criteria, to form a conclusion concerning this question.”

57 After finding that the offence was not one committed “in company” and was not part of “a planned … criminal activity”, his Honour then observed, at paragraph 76:-

“However, the course of conduct engaged in by KT over a period of time before the confrontation with Mr Agang, is relevant to a determination of the objective seriousness of the offence. I will return to this factor later in these reasons.”

58 His Honour adverted to the question as to whether the Court could be satisfied, on the balance of probabilities, “… that the offender was not fully aware of the consequences of his actions because of his age or any disability”.

59 In paragraph 81 of the remarks on sentence, it was observed:-

“… the offender, having engaged in a course of conduct, involving a type of nuisance activity over a period of time. The egg throwing was certainly immature. It was intended, at the least, to upset strangers walking in the street late at night. The conduct was undertaken for the amusement of KT and his companions.”

60 His Honour, however, then went on to state (at paragraph 82):-

“The offender was prepared to elevate the conduct to direct physical confrontation with a willingness, which he acted upon, to use substantial violence upon a stranger in the street.”

61 Consideration was then given to “assessing the objective seriousness of the offence” in paragraphs 85 to 99 of the remarks on sentence.

62 Submissions made on behalf of the applicant and the Crown were then referred to. Importantly, his Honour then observed (paragraph 88):-

“… in assessing the objective seriousness of the crime, it is necessary to place the fatal blow in its broader factual context.”

63 His Honour observed that the applicant was travelling in a vehicle late at night in a suburb of Sydney, having determined to act in a way that was designed, at least, to frighten and upset strangers in the street. His Honour further stated that it was appropriate to characterise such activity as “hoodlum behaviour” and that it was entirely predictable that a person subjected to the activity of “egging” would react in an angry fashion. The reaction of Mr Agang did not, as his Honour noted, injure any person in the vehicle or threaten injury to any person, nor, as it happened, did it damage the vehicle.

64 His Honour referred to the fact that the applicant was physically much larger than the slender and lighter Mr Agang and that after the vehicle turned back in Mr Agang’s direction, the applicant alighted and rushed towards the victim, confronting him with the words “let’s fight”. At that time, Mr Agang did not represent an actual threat to the applicant.

65 His Honour observed that the applicant then struck a “very forceful blow” to Mr Agang’s head causing him to fall and that the punch was intended to hurt Mr Agang, although the applicant did not intend to kill him or cause him grievous bodily harm. The punch, his Honour found, was “intended to punish Mr Agang for his audacity” in reacting to the “egging” in the way in which he did.

66 His Honour referred to the evidence of the loud crack of Mr Agang’s head hitting the ground and that the applicant, he was satisfied beyond reasonable doubt, heard the loud crack and appreciated that Mr Agang had been injured. Instead of offering assistance, the applicant said loudly “you want more? I’ll be back”. The applicant and his companion then departed quickly by vehicle, leaving Mr Agang lying on the footpath.

67 The post mortem examination revealed that Mr Agang sustained a facture of the skull from the base to the middle of the head, estimated at 10 centimetres in length. He was found to have bruising to the left chin and cheek area and an abrasion to the rear of the skull.

68 His Honour observed that the violence of the applicant was perpetrated in a public street where persons were present and where it would be a particular affront to civil peace to have a man killed in the way that occurred in this case. He described it as “a brutal and cowardly act directed to a stranger in the street” and, in this respect, referred to the observations in Regina v MD & Ors (2005) 156 A Crim R 372 at 379 [24].

69 In paragraph 99 of the remarks on sentence, his Honour observed:-

“I have regard to the fact that a single punch was thrown and that no weapon was used. I have regard to the fact that it was the striking of Mr Agang’s head on the ground which produced the fatal injury. Nevertheless, having regard to the wider context surrounding the offence, I am satisfied that the present offence is an objectively serious one. The objective seriousness exceeds the level submitted by counsel for the offender.”

70 In paragraphs 112 to 118 of the remarks on sentence, his Honour then set out relevant principles. Counsel for the applicant, his Honour noted, referred to the principle that considerations of punishment and general deterrence in the sentencing of young offenders should generally be regarded as subordinate to the need to foster rehabilitation: Regina v GDP (1991) 53 A Crim R 112. Counsel acknowledged that that principle had been qualified in later cases, particularly where the offending behaviour “has demonstrated that the young offender has conducted himself in a way that an adult does”: Regina v Tran [1999] NSWCCA 109 at [9].

71 In paragraph 119 of the remarks on sentence, his Honour referred to the submission made that the present case called for an application of the general principle with respect to sentencing a young offender and to the fact that it had been submitted that he had not conducted himself as an adult but that he had been behaving in a childish and immature manner in throwing eggs at persons and had reacted impulsively to the victim hitting the car with an object.

72 Reference was made to the relevant cases in which it had been observed that the mitigation of sentence by reason of the age of an offender added much less weight when the offender had behaved with extreme violence or had acted as an adult: Tran (supra) at [9]; Regina v Hoang [2003] NSWCCA 380 at [44].

73 The Crown submitted to the sentencing judge that the weight to be given to the age of the offender diminished the closer he or she approached the age of maturity, referring to Hoang (supra) at [45].

74 The sentencing judge then concluded as follows (at paragraphs 117 to 118):-

“I have given careful consideration to these submissions. The offender was 16, almost 17, years of age at the time of the offence. His initial conduct, involving the throwing of eggs at persons in the street, has an element of immaturity about it. However, his conduct in returning to the place where Mr Agang stood for the purpose of engaging in a violent confrontation, which led to the infliction of a very powerful blow by him which felled Mr Agang, was not juvenile behaviour. The offender was powerfully built with the appearance of a young man, and not a child. He had left school and was in employment and was living a life closer to that of an adult than a child. He was out with friends late in the evening.

In my view, factors of punishment and deterrence are significant factors on sentence in this case. General deterrence is an important factor in this case. Young offenders must be made aware that the vulnerability of human beings requires restraint by others and a rejection of unprovoked violent assaults:

Regina v MD

at 389 [73]. Specific deterrence is less important, as the offender has developed some insight into his offence and now has become contrite. However, this was an objectively serious offence committed by a young man living in an adult world. Although the provisions of s.6, Children (Criminal Proceedings) Act 1987 and sentencing principles with respect to young offenders remain relevant, it is appropriate in this case to reflect on sentence the elements of punishment and deterrence which must not be subsidiary to the rehabilitation of the offender.”

Applicant’s submissions

75 In the detailed and well constructed written submissions of Mr A Haesler SC and Ms D Yehia of counsel, who appeared on behalf of the applicant, it was contended that the sentencing judge had erred in the way he approached the question of the applicant’s youth (paragraph 17 of the written submissions). In that respect, three matters were raised and, in that respect, I quote from the written submissions (paragraph 18):-

It is submitted that his Honour erred in the way he approached the question of KT’s youth:-

First, there is no rule that requires the principles in

Regina v GDP

must

be read down because the offence was adult-like, or to use the terminology of Hunt CJ at CL in

Regina v Gordon

(1994) 71 A Crim R 459 at 469, of ‘considerable gravity committed in a way an adult might’. Justice Johnson used this term at [114] and also put it in terms of the offence being ‘not juvenile’ ‘committed by a young man living in an adult world’. What the cases cited by his Honour recognise is that punishment and deterrence can become significant factors in determining a proper sentence where children commit offences which have ‘adult’ elements to them, such as planning, the extent and history of offending, and sometimes the nature of the offence.

Secondly, there is no rule or principle that requires that a judge when sentencing a child, even one nearly 17, to say the elements of punishment and deterrence must not be subsidiary to the rehabilitation of the offender.

Thirdly, the assessment of KT’s behaviour based on his appearance and the fact he was in work, not a

school, caused his Honour to underestimate the impact of his youth, intellectual deficits and immaturity on his actions and intentions.”

76 It was further submitted on the question of the applicant’s youth that the sentencing judge made findings, in particular

• That the conduct involving the throwing of eggs demonstrated his immaturity. It was submitted that the immaturity was a constant and did not stop when he got out of the car. It was contended, accordingly, that it was difficult to understand why the sentencing judge then found in returning for the purpose of engaging in a violent confrontation and the infliction of a very powerful blow that this was not juvenile behaviour.

• The applicant was noted as having been powerfully built and had the appearance of a young man. It was said that this did not mean that he was not a child and that the report of Mr Champion confirmed his lack of maturity and full adult capacity.

• The reference to the applicant being out late in the evening with his friends and had left school and was in employment and living in an adult world did not mean that he was mature.

“not juvenile”

Regina v Bus

Regina v Pham & Ly

77 It was submitted on behalf of the applicant that none of the above factors provided any rationale for treating the applicant as an adult, nor did they justify a conclusion that the offence was “an adult offence” nor that it fell into the category of offences where a young offender conducts himself in a way that an adult does.

78 In oral submissions, Mr Haesler identified the sentencing judge’s statement in paragraph [118] as containing what he referred to as “the key error”. That submission related, in particular, to the last sentence of paragraph [118] of the remarks on sentence as extracted in paragraph [75] above.

79 I, with respect, agree with the observation made by the Chief Judge in his judgment, which I have had the benefit of reading in draft form, that this last-mentioned submission should be rejected for the reasons which the Chief Judge has set out. His Honour was, on the findings he made, fully justified in concluding that this was a case in which punishment and deterrence were as important as the need to fashion a sentence appropriate for the rehabilitation of the applicant. As the Chief Judge has observed, that decision was open to his Honour and, in the circumstances, was appropriate.

80 Mr Haesler further submitted in his oral submissions that the throwing of eggs demonstrated immaturity and that that immaturity was (transcript, p.2):-

“… constant, it didn’t stop when he got out of the car and that’s why we say it was difficult to understand why his Honour said returning to the car and hitting even one powerful blow wasn’t juvenile behaviour. We say it was a continuation of the same sort of adolescent juvenile behaviour with very serious consequences …”

81 Mr Haesler further submitted that the evidence demonstrated a lack of foresight (at transcript, p.4):-

“… his inability to think, his juvenile reasoning process and, similarly, when he makes a stupid remark as he walks off, leaving the man dying, a complete failure to appreciate the seriousness of what he had done. That can be painted as callous and adult-like and vicious.”

82 The difficulty with these submissions is that his Honour made factual findings to the contrary and those findings, as further discussed below, I consider were well open to him and no error has been demonstrated in respect of them.

83 His Honour was entitled to reject the submission that the striking of the blow was “impulsive in nature”. He stated that he was not satisfied that that was an appropriate characterisation of the applicant’s conduct (at [77]). His Honour found that the applicant embarked upon the physical confrontation with a willingness which he acted upon and in delivering the punch intended to hurt to Mr Agang. The sentencing judge did not consider that Mr Champion’s assessment that the applicant was an unsophisticated and intellectually limited individual operated in any significant way upon an assessment of the objective seriousness of the offence and that the very powerful blow which fell to the victim “was not juvenile behaviour”. His Honour also found that the applicant appreciated, after Mr Agang was knocked to the ground, that he had sustained injury. These findings were well open on the evidence.

84 I do not, with respect, consider that it is correct to use the earlier juvenile conduct as demonstrating a “lack of foresight” or “inability to think” when the applicant took it upon himself to confront Mr Agang and attack him in the way he did. Nor, with respect, do I consider that the applicant’s prior conduct demonstrated the applicant’s lack of insight, immaturity and incapacity to understand the consequences of his actions, as was submitted by Mr Haesler in the course of his oral submissions.

The Crown’s submissions

85 In the Crown’s written submissions dated 13 November 2007, it was submitted that this was a matter where the applicant had conducted himself in an adult manner and had engaged “… in an offence that involves extreme violence and is one of considerable gravity” (paragraph 23). It was further submitted that in such a case, it was the function of the Court to protect the community and not merely to give effect to the retributive and deterrent elements of sentencing: Regina v SDM (1997) 127 A Crim 318. The Crown relied upon dicta of Lee CJ at CL at 135 in Pham (supra).

86 In paragraph 29 of its written submissions, the Crown submitted that the behaviour of the applicant was “… of adult thuggery”. Whilst the throwing of the egg was described as “loutish”, it was the subsequent behaviour in returning to where Mr Agang was and then striking him heavily which was said to be adult behaviour, referring, in this respect, to the observations of the sentencing judge at p.117 of the remarks on sentence.

87 The Crown further submitted that the present case was one which involved a similar factual situation where an unprovoked punch to the head resulted in an elderly victim falling to the ground and fracturing the skull and later dying in hospital, namely, Regina v O’Hare [2003] NSWSC 652, wherein the sentencing judge (Whealy J) at [35] stated:-

“There is a plain need to denounce the occurrence of violence and unprovoked angry actions in the public streets of New South Wales.”

88 In that case, the offender was 22 years of age at the time of the offence. He was sentenced to six years imprisonment. The sentence was discounted by 20% for a plea of guilty and a non-parole period of three years and six months was set.

89 Finally, the Crown submitted that the sentencing judge had given a detailed and reasoned judgment taking into account every relevant consideration and that the sentences were within range for an offence of this kind and within his Honour’s discretion.

Consideration

90 In determining whether, as contended in the submissions on behalf of the applicant, his Honour did err, it is important to bring into account, as the sentencing judge twice observed in the course of his remarks, that the conduct and actions of the applicant were to be evaluated in context. It was only when so considered that his Honour characterised the applicant’s conduct in the way he did.

91 In terms of context and relevant events and activities, it is clear that, as his Honour, in effect, found, the applicant took the sole initiative in bringing about the unfortunate events that led to the offence and in escalating the seriousness of the events that occurred in the attack upon the entirely innocent victim. The relevant facts in this regard included the following:-

(a) It was the applicant who threw the egg at the victim.

(b) The applicant, together with the driver of the vehicle in which he was a passenger, it may be inferred, determined to return in the vehicle and confront the victim.

(c) The applicant then ran towards the victim saying, “let’s fight” .

“loud crack”

92 Although the episode of violence constituting the offence had been preceded by the “immature” and “loutish” behaviour associated with the egg throwing, the applicant’s engagement in an elevated level of aggressive conduct involving direct physical confrontation and a high level of violence constituted it as a qualitatively different event from the earlier conduct.

93 The facts and circumstances revealed in the statement of facts as summarised in paragraphs [91] to [92], in my opinion, provided adequate material upon which the sentencing judge could base the finding his Honour made as to the character of the applicant’s conduct. The conclusions expressed by the sentencing judge that the applicant conducted himself in an “adult manner” and had engaged in an offence involving extreme violence and, therefore, of considerable gravity were, in my opinion, soundly based and were certainly open on the evidence.

94 His Honour’s other observations as to the physique of the applicant and to his living in an adult world were quite ancillary to the principal matters relied upon by his Honour. Reference to those matters do not, in my opinion, in any way evidence error.

95 In context, the immature egg-throwing activity by the applicant from his position within the vehicle was, as the sentencing judge in my opinion correctly discerned, to be distinguished from the violent confrontation which he initiated outside the vehicle. The former was, with respect, properly characterised as “immature” “hoodlum behaviour”. The latter involved a deliberate attack involving a high level of aggression and violence and carried out, on the sentencing judge’s finding, with the intention of hurting Mr Agang.

96 As his Honour found, the applicant heard the victim’s head hit the ground and realised that he had sustained injury. That realisation, rather than resulting in assistance, was met with the applicant’s statement “you want more? I’ll be back”.

97 I do not, with respect, consider that conduct of the kind in question involving such a high level of criminality can be characterised simply as “immature” in the ordinary sense of the word, that is, “not yet fully developed; unripe; lacking emotional or intellectual development”: Shorter Oxford English Dictionary.

98 The applicant’s offence involving, as it did, a highly charged confrontation, an intention to injure and “a very forceful blow” so powerful as to fracture Mr Agang’s skull, in my opinion, places it in a category beyond mere immature conduct. The evident mixture of anger and malevolence stamped the offence as one involving serious criminality.

99 A reading of the remarks on sentence plainly indicate that these were the matters that well-supported the sentencing judge’s finding that the offence was not to be marked out simply as “juvenile behaviour” or as “adolescent bravado”.

100 In determining the appropriate sentence, his Honour gave extensive consideration to the applicant’s youth. In that respect, his Honour set out the provisions of s.6 of the Children (Criminal Proceedings) Act 1987, “Principles relating to the exercise of criminal jurisdiction” and had regard to the detailed submissions made on behalf of the applicant, including the fundamental submission made that he had not conducted himself as an adult (paragraph 115).

101 The sentencing judge stated (as is evident from the remarks on sentence), that he had given careful consideration to the submissions made. It is clear that the relevant sentencing principles and the relevant factual matters were foremost in the consideration underpinning the determination as to the appropriate sentence.

102 I have earlier set out the submissions made in paragraph 18 of the submissions on behalf of the applicant. I do not, with respect, consider it accurate to say that his Honour adopted an approach, as suggested in paragraph 18, namely, that there was a rule that required that the principles in GDP (supra) must be read down because the offence was adult-like or of “considerable gravity committed in a way an adult might”. Nor do I consider that his Honour approached the sentencing task with some notion that there was a rule or principle that required a judge, when sentencing a child, to say that the elements of punishment and deterrence must not be subsidiary to the rehabilitation of the offender.

103 Plainly, there is no hard and fast general rule that applies uniformly in the sentencing of young offenders. One well-known principle, of course, is that when a court is required to sentence a young offender, considerations of punishment and general deterrence should in general be regarded as subordinate to the need to foster the offender’s rehabilitation: see Tran (supra) at [9]. However, the phrase “in general” is not to be overlooked. In Tran, Wood CJ at CL observed at [9]:-

“That is a sensible principle to which full effect should be given

in appropriate cases

. It can have particular relevance where an offender is assessed as being at the cross roads between a life of criminality and a law abiding existence.”

104 Again, the phrase “in appropriate cases” is not to be overlooked. His Honour went on in Tran to state (at [10]):-

“What his Honour did not mention, and appears to have overlooked, however, was the qualification to that principle concerning young persons where they conduct themselves in a way that an adult does, and commit a crime that involves violence or is one of considerable gravity. In such a case, it is the function of the Court to protect the community, and to appropriately give effect to the retributive and deterrent elements of sentencing:

Pham

(1991) 55 A Crim R 128;

Allam

(Court of Criminal Appeal, New South Wales, 13 April 1993, unreported);

DRL

(Court of Criminal Appeal, New South Wales, 16 May 1997, unreported);

Townsend & Cooper

(Court of Criminal Appeal, New South Wales, 14 February 1995, unreported) and

SDM

(Court of Criminal Appeal, New South Wales, 4 August 1997) …”

105 In Tran (a case involving one count of armed robbery under s.97(1) of the Crimes Act 1900 to which the respondent to the appeal pleaded guilty, together with an offence of supply prohibited drug and an offence of goods in custody taken into account on a Form 1), Wood CJ at CL concluded (at [14]):-

“The nature and circumstances of the offence were accordingly such that the respondent should have been considered as having conducted himself like an adult, with the consequence that relatively little weight should have been given to his age.”

106 The same point was made by this Court in Hoang (supra) at [44]. The Court additionally observed at [45] that the weight to be given to considerations associated with offending arising out of immaturity, diminishes the closer an offender approaches the age of maturity, referring in that respect to this Court’s decisions in Bus (supra) and Regina v Voss [2003] NSWCCA 182.

107 In MD & Ors (supra), three of four offenders entered pleas of guilty to manslaughter. The offence occurred on New Year’s Eve, late at night, where a number of young people had gathered, some of whom were significantly affected by alcohol. The deceased, his male companion and some young girls were walking from a railway station to a party and some members of the group, including the offenders, moved either individually or in small groups over to the highway and an altercation then occurred. The details of the altercation were difficult for the sentencing judge to ascertain. It was not clear that the offenders acted as a group and such finding was not made.

108 The deceased had been first incapacitated when his head made contact with a pole, apparently causing significant injury. The sentencing judge was uncertain how the injury occurred, saying that MD somehow, in confrontation with the deceased, resorted to physical violence and at least, in some fashion frightened, propelled, pushed, chased or herded the deceased, head-on, into the pole. He sustained severe cerebral injuries and fell to the ground.

109 This Court (McClellan CJ at CL, Simpson and Howie JJ) observed at [21]:-

“The sentencing statistics of the Judicial Commission, covering the period January 1998 to December 2004, reveal that not all persons convicted of manslaughter received custodial sentences. Of those that did, the sentences imposed range from 18 months to more than 20 years. In relation to the non-parole periods or fixed terms, the range varied between one year and 16 years. The middle 80% of cases fell in the range of two years to eight years. In respect of persons under 18 years, there are few examples, but the head sentences ranged between five years and eight years and the non-parole periods between 30 months and five years.”

110 The respondents to the appeal were, at the date of the offence, aged 17 and nine months (MA), 17 years and eight months (JT), 17 years and two weeks (MD) and 16 years and nine month (BM).

111 In that case it had been submitted that none of the respondents had been demonstrated to have lacked sufficient maturity to appreciate the risk that they were taking by their actions and that although no finding had been made that they acted as a group, the Crown submitted that each of them should have been aware that he was not alone in his role in his attack on the victim. It was submitted that the actions of the respondents were so brutal that, even given their lack of maturity, they should have appreciated the seriousness of their actions and have been sentenced accordingly.

112 In the course of the judgment in MD, this Court stated:-

“61. The crime of manslaughter carries a maximum sentence of 25 years imprisonment (s.24, Crimes Act 1900). The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise, for the protection of human life must be a fundamental objective of any criminal law system in a civilised society:

Regina v Edwards

(1996) 90 A Crim R 510.

62. It is important when sentencing an offender to reflect the objective seriousness of the crime concerned:

Regina v Rushby

[1977] 1 NSWLR 594. The assessment of that matter depends on the factual findings made by the sentencing judge. When, as in the present matters, the factual findings of the sentencing judge are not challenged on appeal, the appeal court must consider the matter having regard only to those factual findings.

63. Because the sentencing process requires consideration of a number of matters, some of which indicate a greater sentence whereas others reflect concerns which would ameliorate the sentence, the task of the sentencing judge can be complex and difficult. For this reason it is common for courts to accept that there will be a range of sentences appropriate for any particular circumstances within a particular offence category. Provided the sentence that is imposed is accepted as falling within that range, the discretion of the sentencing judge will not have miscarried. If, however, the sentence is such that, having regard to all relevant matters, it falls outside the range, an error will be identified and an appeal court may intervene.

64. However, the High Court has recently again emphasised the importance of due weight being given to the exercise of the discretion by the sentencing judge. It has acknowledged, as this Court must, that there is no single correct sentence and judges at first instance must be allowed ‘as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies’:

Makarian v The Queen

(2005) 215 ALR 213 at [27].”

113 In considering the sentence imposed on MD, the Court observed at [71] that MD had been sentenced to five years and six months on the manslaughter count and six months on the stealing count, the aggregate sentence being five years and nine months with a non-parole period of three years and nine months. The sentence had been reduced by 10% to take into account the utilitarian value of MD’s plea of guilty. The undiscounted sentence was, therefore, about six years and four months.

114 The Court then observed in MD:-

“72. … that even taking into account his youth and strong subjective circumstances, if it could have been shown that the respondent was directly and intentionally responsible for the impact of the deceased with the light pole, his culpability would have been such that a more severe sentence could not have been avoided.”

115 The Court finally observed at [80] that:-

“… the non-parole period and the head sentence imposed in relation to MD was at the lower end of the available range but the Court was not persuaded that the sentence imposed was such that the Court should intervene”.

116 I note that the age difference between MD and the applicant in the present appeal was one and a half months (MD was 17 years and two weeks as against the applicants 16 years and 11 months as the date of the offences).

117 The non-parole period of three years and nine months imposed with respect to MD is, in my opinion, in line with the non-parole period imposed in the present case of four years, given, in particular, the Court’s observation in paragraph [72] extracted above that, if it could have been shown that MD was directly and intentionally responsible for the impact of the deceased with the light pole, then his culpability would have been such that a more severe sentence could not have been avoided. In the present case, the applicant by his brutal attack was both directly and intentionally responsible for inflicting the fatal injuries on Mr Agang.

Sentencing statistics

118 Whilst I consider that the sentence imposed in the present case is to be evaluated both on the factual findings made by the sentencing judge and by the application of relevant sentencing principles having regard, in particular, to the applicant’s age at the date of the offence, I record the following observations in relation to the sentencing statistics produced by the Judicial Commission and which were tendered before the sentencing judge.

119 In the written submissions for the applicant at paragraph [44], reference was made to the Judicial Commission’s Monograph 23 (2006) “Sentenced Homicides in NSW 1994-2001” as revealing that juvenile offenders generally receive shorter terms of imprisonment and non-parole periods than adults. Reference was there made based on the Judicial Commission material that the median sentence for manslaughter was six years imprisonment and a non-parole of three years (compared to seven years head sentence and four years, six months non-parole period for adults).

120 Reliance was placed upon Judicial Commission statistics for 2000-2006 as indicating a similar pattern for young offenders. The observation, however, is made that there is too small a sample and insufficient details in the statistics to show that a sentence of six years with a four year non-parole period is “within range”.

121 The Judicial Commission statistics in respect of “non-parole periods/fixed term” – non-consecutive terms only in respect of pleas of guilty for offenders less than 18 years - indicate that in respect of a total of seven cases, 14% received a non-parole period/fixed term of 24 months, 43% received 36 months and 29% received 48 months.

122 I have referred earlier to the observations made in MD & Ors (supra) in relation to Judicial Commission statistics, referred to in paragraph [103] above.

123 In Regina v Forbes [2005] NSWCCA 377, the Chief Justice made the following observations in relation to sentencing patterns in relation to manslaughter (at [133] to [135]):-

“As has frequently been stated, manslaughter is almost unique in its protean character as an offence. (See in particular the observations of Gleeson CJ in

Regina v Blacklidge

(unreported, Court of Criminal Appeal, 12 December 1995, esp. pp.2 – 3.) In its objective gravity it may vary, as has been pointed out, from a joke gone wrong to facts just short of murder (

Regina v Weinman

(1987) 49 SASR 248 at 252;

Regina v Hoerler

(2004) 147 A Crim R 520 at [30]).

It is also relevant to recognise that, although manslaughters can be characterised in different ways, particularly in the various contexts which may reduce what would otherwise be a murder to manslaughter, the degree of variation within any such category is generally also over a wide range. Matters of fact and degree arise in all categories of manslaughter.

For example where diminished responsibility is relied upon, the extent to which culpability is ‘diminished’ can very considerably from case to case. Similarly, although it is possible to characterise a number of cases as ‘child-killing by a parent or carer’, it may never be possible to identify a sentencing pattern or tariff from the whole body of such cases. (See

Hoerler

supra.) This is not only because the number of cases in a particular category may be too few to establish a pattern or tariff. It is also because, within any such category, the relevant circumstances can vary over a wide range. This is also true in the case of manslaughter by reason of excessive self-defence (see

Regina v Trevenna

(2003) 149 A Crim R 505).”

124 In Regina v Blacklidge (CCA, unreported 12 December 1995, Gleeson CJ, Grove and Ireland JJ), Gleeson CJ observed:-

“It has long bee recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the ranges of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability.

At the same time, the Court has repeatedly stressed that what is involved in every case of manslaughter is the felonious taking of a human life. That is the starting point for a consideration of the appropriate penalty, and a key element in the assessment of the gravity of the objective circumstances of the case:

Regina v Dodd

(1991) 57 A Crim R 349;

Regina v Hill

(1981) 3 A Crim R 397 at 402 …”

Conclusions

125 I do not consider that Johnson J erred in the factual findings he made nor in his characterisation of the applicant’s offence in the context in which it occurred.

126 I do not consider that there has been demonstrated any erroneous application of sentencing principles in the consideration and determination of the sentence imposed on the applicant.

127 Finally, I do not consider that the sentence imposed was excessive or otherwise itself manifested error. Although sentencing statistics provide little in the way of guidance in this case, the sentence imposed fell within the range of other sentences imposed in cases of manslaughter involving young offenders.

128 Accordingly, the orders I would propose are:-

129 PRICE J: I have had the advantage of reading the drafts of the judgments prepared by McClellan CJ and Hall J. Their Honours in their judgments have carefully set out the facts and relevant sentencing principles for which I am grateful. Their Honours, however, disagree as to the outcome of the appeal. Like Hall J, I consider that the appeal should be dismissed. I propose to adopt his Honour’s discussion of the relevant sentencing principles and their application to the present case.

130 The appeal seeks the interference by this Court with the exercise of the judicial discretion by the sentencing judge. In Lowndes v The Queen (1999) 195 CLR 665 the High Court said at [15]:

Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice

131 In Makarian v The Queen (2005) 215 ALR 213 at [27] the High Court emphasised that there is no single correct sentence and “judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”.

132 As is stated by Hall J at [98] there were matters which well-supported the sentencing judge’s finding that the offence was not to be marked out simply as “juvenile behaviour” or as “adolescent bravado”. Whilst this Court may come to a different view to the part which the applicant’s youth played in the commission of the offence than was determined by the sentencing judge [and I do not], it was a view his Honour was entitled to hold. In my opinion, the sentencing judge did not err in the way he approached the question of KT’s youth.

133 An analysis of judgments of this Court of relevant sentences does not persuade me that the sentence imposed was such that this Court should intervene. As Hall J points out, the non-parole period of three years and nine months imposed on MD is in line with the non-parole period imposed in the present case: see R v MD, BM, NA, JT [2005] NSWCCA 342.

134 The statistics from the Judicial Commission of New South Wales in its monograph 23 (2006) Sentenced Homicides in NSW 1994-2001 indicate that the sentence was more than the median sentence for manslaughter committed by juvenile offenders. This Court has on prior occasions stated that the upper limit of the range of sentence is not established by the statistical information provided by the Judicial Commission. The upper limit is the maximum set by Parliament: see for example Money v R [2007] NSWCCA 317. The upper limit in this case is 25 years.

135 In my opinion, the sentence imposed by the sentencing judge was within the discretionary range open to him. No error on the part of the sentencing judge has been demonstrated. The sentence is not manifestly excessive. I would therefore grant leave to appeal but dismiss the appeal.

**********

Citations

KT v R [2008] NSWCCA 51

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Cases Cited

29

Statutory Material Cited

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R v Hearne [2001] NSWCCA 37

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CITATION:	KT v R [2008] NSWCCA 51
HEARING DATE(S):	21 November 2007
JUDGMENT DATE:	1 April 2008
JUDGMENT OF:	McClellan CJ at CL at 1; Hall J at 44; Price J at 129
DECISION:	By majority: 1. Leave to appeal granted 2. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against sentence - manslaughter by dangerous and unlawful act - juvenile offender - principles relevant to sentencing young offenders - whether sentencing judge had sufficient regard to offender's youth and immaturity - whether offender acted as an "adult" - considerations of punishment, general deterrence and rehabilitation of young offender - whether sentence manifestly excessive
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes Act 1900
CATEGORY:	Principal judgment
CASES CITED:	Hearne v R (2001) 124 A Crim R 451 Lowndes v The Queen (1999) 195 CLR 665 Makarian v The Queen (2005) 215 ALR 213 Money v R [2007] NSWCCA 317 MS2 v The Queen (2005) 158 A Crim R 93 R v Adamson (2002) 132 A Crim R 511 R v AEM Snr, KEM and MM [2002] NSWCCA 58 R v Blacklidge (CCA, unreported 12 December 1995) R v Bus, unreported, NSWCCA, 3 November 1995 R v E (a child) (1993) 66 A Crim R 13 (WACCA) R v Forbes [2005] NSWCCA 377 R v GDP (1991) 53 A Crim R 112 (NSWCCA) R v Grenenger [1999] NSWSC 380 R v Hoang [2003] NSWCCA 380 R v Kwon [2004] NSWCCA 456 R v LC [2001] NSWCCA 175 R v Maclauren [2003] NSWSC 799 R v Maguire (CCA unreported 30 August 1995) R v Morabito (1992) 62 A Crim R 82 R v Marrah [2002] NSWSC R v MD, NA, BM, JT [2005] NSWSC 344; (2005) 156 A Crim R 372 Melchers v R [2003] NSWCCA 119 R v Nardoni [1999] NSWSC R v O’Hare [2003] NSWSC 652 R v Pham (1991) 55 A Crim R 128 R v Risteski [1999] NSWSC R v TJP [1999] NSWCCA 408 R v Tran [1999] NSWCCA 109 R v Voss [2003] NSWCCA 182 R v Wilson [1999] NSWSC 1235 R v SDM (1997) 127 A Crim 318 R v Woodland (2001) NSWCCA 416
TEXTS CITED:	Judicial Commission of New South Wales 2007 Sentencing Statistics Judicial Commission’s Monograph 23 (2006) Sentenced Homicides in NSW 1994-2001
PARTIES:	KT (Applicant) The Crown
FILE NUMBER(S):	CCA 1889/2007
COUNSEL:	A Haesler SC/D Yehia (Applicant) M Hobart SC (Crown)
SOLICITORS:	Legal Aid Commission (Applicant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	1680/2006
LOWER COURT JUDICIAL OFFICER:	Johnson J
LOWER COURT DATE OF DECISION:	16 February 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	NSWSC 83