Paterson v R

Case •

[2021] NSWCCA 273

•

19 November 2021

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Paterson v R [2021] NSWCCA 273
Hearing dates: 8 September 2021
Date of orders: 19 November 2021
Decision date: 19 November 2021
Before: Beech-Jones CJ at CL at [1]
R A Hulme J at [61]
N Adams J at [62]
Decision:

(1)   The applicant be granted leave to appeal from the sentence imposed by Rothman J on 12 March 2020;

(2)   Appeal allowed;

(3)   Set aside the sentence;

(4)   In lieu thereof:

(a)   The applicant is sentenced to a term of imprisonment comprising a non-parole period of 9 years commencing on 7 August 2017 and a balance of the term of the sentence of 3 years;

(b)   The applicant will become eligible for release on parole upon the expiration of the non‑parole period on 6 August 2026.

Catchwords:

MANSLAUGHTER – unlawful and dangerous act – applicant kicked and stomped on head of deceased – alcohol fuelled violence – poor criminal record – starting point for sentence prior to discount for plea of guilty near maximum penalty – offence found to be at “highest end of culpability” – whether characterisation of offence was open – whether sentence was manifestly excessive – disparity with co-offender – appeal allowed – applicant re-sentenced

Legislation Cited:

Crimes(Sentencing Procedure) Act 1999

Crimes (High Risk Offenders) Act 2006

Cases Cited:

Attwater v R; Maris v R [2021] NSWCCA 17

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Craft v R [2021] NSWCCA 131

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hili v The Queen; Jones v The Queen 242 CLR 520; [2010] HCA 45

Jimmy v Regina [2010] NSWCCA 60; (2010) 77 NSWLR 540

Magro v R [2020] NSWCCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38

O'Brien v R [2010] NSWCCA 297

R v Attwater; R v Maris [2017] NSWSC 1710

R v Blake Davis [2021] NSWSC 235

R v Chandler (No2) [2017] NSWSC 1758

R v Grogan [2017] NSWSC 378

R v Jones [2017] NSWSC 19

R v Lane (No 4) [2018] NSWSC 1898

R v Loveridge [2014] NSWCCA 120

R v McNeil (No 4) [2015] NSWSC 1198

R v Paterson; R v O’Brien [2020] NSWSC 221

R v Blacklidge (Court of Criminal Appeal (NSW), 12 December 1995, Gleeson CJ, unrep)

Tepania v R [2018] NSWCCA 247

Veen v The Queen (No 2) (1987-1988) 164 CLR 465; [1988] HCA 14

Zreika v R [2021] NSWCCA 243

Category:Principal judgment
Parties: Ryan Paterson (Applicant)
Regina (Respondent)
Representation:

Counsel:
P Boulten SC (Applicant)
B Baker (Crown)

Solicitors:
Matouk Joyner Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)
File Number(s): 2017/200939
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Criminal
Citation:

R v Paterson; R v O’Brien [2020] NSWSC 221

Date of Decision:
12 March 2020
Before:
Rothman J
File Number(s):
2017/200939

Judgment

  1. BEECH-JONES CJ at CL: This is an application for leave to appeal from a sentence imposed for manslaughter.

  2. On 2 October 2019, the applicant for leave to appeal, Ryan Patterson, pleaded guilty to a single count on an indictment that charged him with unlawfully killing Jayden Mason at New Lambton Heights on 25 June 2017. Previously, on 5 September 2019, his co-accused, Benjamin O’Brien (“O’Brien”), also entered a plea of guilty to the same charge. Each of them requested that the Court take into account charges of possess prohibited drug that were included on notices filed by the prosecutor under s 32(1) of the Crimes (Sentencing Procedure) Act 1999 (“Form 1s” and the “Sentencing Act” respectively).

  3. A sentence hearing took place on 5 March 2020. On 12 March 2020, the applicant was sentenced by Rothman J to 16 years and 6 months imprisonment commencing 7 August 2017 with a non-parole period of 12 years and 5 months. O’Brien was sentenced to 8 years and 6 months imprisonment commencing 24 December 2017 with a non-parole period of 5 years and 6 months (R v Paterson; R v O’Brien [2020] NSWSC 221).

  4. On appeal, the applicant contends that his Honour erred in characterising his offending as being at the “highest end of culpability”, that his sentence was manifestly excessive and that there was an unjustified disparity between his sentence and that imposed on Mr O’Brien. For the reasons that follow, I would uphold the first two of those contentions and resentence the applicant. It is not necessary to address the third contention. To explain these conclusions, it is necessary to describe the offence and aspects of Rothman J’s reasons.

The Death of Mr Mason

  1. Tendered before his Honour was an agreed statement of facts for each of the applicant and O’Brien. Save for the description of the basis for their respective culpabilities, there were no material differences between the statements. The following is taken from those statements.

  2. As at the date of his death, Mr Mason was 21 years old. At around 8.00pm on 24 June 2017, he entered Wyong Leagues Club. Until around 9.30pm, witnesses describe him as affected by alcohol but not severely so and not behaving antisocially. However, from around 9.30pm he became increasingly abusive towards staff and more agitated. At approximately 9.50pm, he was forcibly ejected from the premises. Outside the Leagues Club he confronted staff, including attempting to punch them. At some point he was told to go home. He started walking northwards on a footpath adjacent to Lake Haven Drive. One witness observed him “screaming out to passing cars and crying hysterically for ten minutes”.

  3. The applicant and O’Brien were travelling on a “courtesy bus” that pulled over on Lake Haven Drive opposite the Leagues Club. They had been drinking elsewhere since around 7.00pm although one witness stated that no one on the bus “was overly intoxicated”. Mr Mason was in the vicinity of the bus when it stopped and was abusive towards its occupants. The applicant and O’Brien alighted from the bus and walked towards Mr Mason who had removed his shirt.

  4. Both the applicant and O’Brien attempted to punch Mr Mason, but he evaded the punches. Mr Mason then ran up Lake Haven Drive. The agreed facts record that he “zig-zagged across the roadway” and was chased by the applicant, O’Brien and another person (Mr Henry). Mr Mason attempted to flag down two cars. The agreed facts record that Mr Mason “appeared frightened as he ran away”.

  5. The fatal assault(s) on Mr Mason occurred at a location that was 165 metres from the initial altercation. During the chase, the applicant slipped and so O’Brien arrived first. O’Brien punched Mr Mason who fell to the ground. Mr Henry then grabbed O’Brien and held him. The agreed e record that the applicant then “kicked the deceased to the head like a soccer ball” who was “unconscious after the attack”, kicked him to the head a second time and then “stomped on [Mr Mason’s] head with both feet”. After this assault, Mr Mason was left lying in the bicycle lane and not moving. Several cars drove past the spot. One of them collided with Mr Mason and most likely dragged him along the road.

  6. Paramedics arrived at the scene at around 10.40pm. Mr Mason was observed to be unresponsive. He was transferred to hospital. He was diagnosed as having sustained a severe traumatic brain injury. He was pronounced dead at 12.11am. An autopsy report described him as suffering severe abrasions and haemorrhaging across his head but not skull or facial fractures. His blood alcohol level was .191. The cause of death was severe traumatic blunt force head injuries.

  7. The applicant and O’Brien left the area on foot. They were both arrested on 3 July 2017. At the time of the applicant’s arrest, 4.5 grams of cannabis was found in his motor vehicle. A search of the applicant’s home yielded 27.91 grams of methandienone and 10.5 grams of cannabis. His possession of these drugs was reflected in the offences included on his Form 1. At the time of O’Brien’s arrest, the police located 2.58 grams of methylamphetamine which was the basis for the possession charge included on his Form 1.

Basis for Manslaughter Plea

  1. In light of the grounds of appeal, it is necessary to set out the basis identified in each statement of facts for the entry of a plea to manslaughter.

  2. In the case of the applicant, the agreed facts recorded the following:

“61. The facts that are accepted for the purposes of sentencing are that:

a.   Mr Paterson

i.   Approached the deceased willing to fight him:

ii.   threw a punch at him which missed

iii.   knew that Mr O’Brien also threw a punch which missed

iv.   pursued the deceased with Mr O‘Brien for 165m

v.   saw the deceased attempt to stop passing cars

vi.   knew the deceased did not want to fight him

vii.   saw Mr O’Brien punch the deceased with a closed fist to the head, causing the deceased’s body to buckle, and the deceased to fall to the ground

b.   At this time the deceased was conscious, but dazed

c.   This conduct represented a joint criminal enterprise with Mr O’Brien to assault the deceased

d.   Mr Paterson

i.   then kicked the deceased to the head on two occasions whilst the deceased was supine

e.   This rendered the deceased unconscious

f.   Mr Paterson, while wearing Adidas sneakers:

i.   then jumped on the head of the deceased with two feet striking the deceased’s head at the same moment; and

ii.   left the deceased lying unconscious on the roadway in a bike lane; and

iii.   failed to warn approaching vehicles of the deceased’s position

g.   This conduct represented unlawful and dangerous conduct towards the deceased falling short of intending to inflict grievous bodily harm on the deceased

h.   This conduct, as an unlawful and dangerous act, represents a substantial contribution to the death of the deceased

i.   ….” (emphasis added)

  1. In the case of O’Brien, the agreed facts concerning him record the following:

58. The facts that are accepted for the purposes of the sentence are that:

a.   Mr O’Brien:

i.   took off his shirt intending to fight the deceased

ii.   threw a punch at him which missed

iii.   knew that Mr Paterson also threw a punch which missed

iv.   pursued the deceased with Mr Paterson for 165m

v.   saw the deceased attempt to stop passing cars

vi.   knew the deceased did not want to fight him

vii.   punched the deceased with a closed fist to the head, causing the deceased’s body to buckle, and the deceased to fall to the ground

b.   At this time the deceased was conscious, but dazed

c.   This conduct represented a joint criminal enterprise with Mr Paterson to assault the deceased

d.   This conduct represented unlawful and dangerous conduct towards the deceased

e.   Mr Paterson kicked the deceased to the head on two occasions whilst the deceased was supine

f.   This rendered the deceased unconscious

g.   Mr Paterson stomped on the head of the deceased with two feet

h.   Mr O’Brien:

i.   left the deceased lying on the roadway in a bike lane

ii.   heard a car strike the deceased

i.   His conduct, as an unlawful and dangerous act, represents a substantial contribution to the death of the deceased

j.   Mr O’Brien:

i.   conducted himself as described by independent witnesses [at paragraphs 35 to 39 of these facts] thereafter.

ii.   did not anticipate that Mr Paterson would kick or stomp on the deceased

iii.   apologised to the uncle of the deceased after learning that the deceased had passed away.

k.   ….” (emphasis added)

  1. In one part of the sentencing judgment his Honour described the basis of the entry of the pleas of guilty to manslaughter as follows ([2020] NSWSC 221 at [34] to [35]):

“34.   As earlier stated, the basis upon which each of the offenders is liable for the conduct that caused the demise of the deceased is joint criminal enterprise. ….

35.   In this case, even without the plea of guilty, the conduct of each of the offenders in chasing the deceased with the intention of assaulting him was an agreement or evidenced an agreement to engage in criminal conduct. Mr O’Brien can only be held responsible under that rubric if the conduct to which he’d agreed, namely the assault, was a substantial cause of grievous bodily harm or death. As will be seen, in my view, Mr O’Brien’s liability is only just within that definition. As a consequence, each of Mr O’Brien and Mr Paterson are responsible for the conduct that each engaged in and in which the other person engaged.” (emphasis added)

  1. In specifying the basis of both the applicant’s and O’Brien’s culpability for manslaughter and referring to both participating in a joint criminal enterprise to assault Mr Mason the statements of agreed facts did not assist his Honour.

  2. In relation to the applicant, and with respect to his Honour, the basis upon which the applicant was liable to the “conduct that caused the demise” of Mr Mason was not joint criminal enterprise. Instead, the agreed facts demonstrate that he was a principal offender. Paragraph 61(g) of the agreed statement for the applicant records that “this conduct” amounted to “unlawful and dangerous conduct” and satisfied the causation test (ie “substantially contributed”). Further, the reference to “this conduct” I take to be a reference to the conduct identified in 61(d) to (f), ie, kicking the deceased in the head twice, jumping on his head, leaving him in the gutter and failing to warn oncoming vehicles.

  3. The position with O’Brien is less clear. Paragraph 58(j) of his agreed facts record that “his conduct”, as opposed to “their” conduct, was also an unlawful and dangerous act which represented a substantial contribution to Mr Mason’s death. This suggests that he was a principal offender. However, it is unclear what the “conduct” being referred to is. It appears to at least include him leaving Mr Mason lying on the road in a bike lane; (ie an omission) although it may also extend to his participation in the joint criminal enterprise to assault Mr Mason referred to in [58(c)]. However, that is different to participating in a joint criminal enterprise to dangerously assault him which would be what is necessary for the joint criminal enterprise to embrace culpability for manslaughter. To complicate matters [58(j)(ii)] refers to O’Brien not anticipating Paterson kicking or stomping on Mr Mason. This would appear to preclude any suggestion that the doctrine of extended joint criminal enterprise rendered him guilty of manslaughter. Ultimately, as it is not O’Brien’s appeal, it is not necessary to resolve this.

  4. Even though in the passage set out above his Honour discussed the liability of the offenders on the basis of a joint criminal enterprise, later his Honour noted (correctly) that “it was an unlawful and dangerous act or series of acts by Mr Patterson that represent[ed] a substantial contribution to the death of Mr Mason” (at [45]).

Balance of the Sentencing Judgment

  1. In the balance of the sentencing judgment, his Honour noted various principles of sentencing including parity between co-offenders (at [46] to [55]). The next part of his Honour’s judgment is headed “objective seriousness” (at [56] to [67]). His Honour characterised O’Brien’s conduct as falling “below the midrange of objective seriousness in terms of the role that he played in the joint criminal enterprise” (at [57]) and the applicant’s offence “at the highest end of culpability” (at [66]). This finding is the subject of complaint by ground 1 of the appeal.

  2. His Honour then addressed the subjective features and other circumstances of the applicant and O’Brien.

  3. In relation to the applicant, at the time he committed the offence he was 34 years of age. He was on parole for an offence of recklessly causing grievous bodily harm committed on 9 February 2008 (at [70]; Sentencing Act, s 21A(2)(j)). For that offence he was sentenced on 12 June 2014 to imprisonment for 3 years and 9 months commencing 22 August 2013, with a non-parole period of 1 year and 9 months. As noted by his Honour, that offence had “striking similarities” to the offence the subject of this appeal in that, in apparent retaliation for being hit on the head with a pole by the victim, the applicant stomped on the victim’s head and left him by the roadside (at [71]). The applicant had other convictions for offences of violence including steal from the person in 2008, assault occasioning actual bodily harm in 2009 and affray in 2010. In 2021, he received a custodial sentence for supply of a prohibited drug.

  4. His Honour found that the applicant was entitled to a discount of 25% on account of his plea of guilty (at [74]) and had a long history of depression and commenced being medicated for the condition at aged 19 (at [77]). His Honour found he had a “history of …. physical abuse occasioned by his father on his mother and him and abuse of alcohol and possibly drugs by both his mother and father” (at [77]). His Honour accepted that in his early childhood he suffered from ADHD and engaged in “tantrums and self-harm” (at [78]). His Honour also accepted a psychiatrist’s diagnosis that he has adult ADHD and that “explain[s] Mr Paterson’s conduct, at least to some degree” (at [82]).

  5. His Honour did not accept that the applicant was remorseful (at [84]). His Honour did not consider that the probability that he might gain employment on his release enhanced the applicant’s prospects of rehabilitation (at [99]). His Honour declined to make a finding of special circumstances (at [84]).

  6. In relation to O’Brien, at the time of sentencing he was 32 years old (at [98]). Unlike the applicant, his Honour accepted that he was remorseful (at [85] to [86]). At the time of the offence, he was on bail having been charged with affray although the charges were later dismissed. His attendance at the club was in breach of a specific condition attaching to his bail (at [86]). O’Brien was also on parole when Mr Mason was killed (Sentencing Act, s 21A(2)(j)). In December 2010, this Court allowed an application for leave to appeal by O’Brien against sentences imposed for the supply of not less than a commercial quantity of a prohibited drug and resentenced him to an overall term of 9 years and 6 months expiring on 31 March 2018, with a non-parole period of 6 years expiring 30 September 2014 (O'Brien v R [2010] NSWCCA 297).

  7. Otherwise, although O’Brien had a prior criminal record, his Honour noted that it did not include offences of violence (at [93]). His Honour accepted that O’Brien was raised in an “environment … [of] … alcohol-fuelled violence” but found that, as that involved violence between his parents and was not directed at him, it did not warrant consideration in accordance with Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 (“Bugmy”). His Honour found that he had “prospects of rehabilitation” on account of the remorse he had demonstrated (at [105]). As his offer to plea to manslaughter was made after the applicant offered his plea, he received a discount of 15% for its utilitarian value (at [92]). For O’Brien, his Honour commenced with a head sentence of 10 years imprisonment and after applying a discount of 15% imposed the sentence of 8 years and 6 months. His Honour made a finding of special circumstances which resulted in a non-parole period of 5 years and 6 months.

Ground 1 and Ground 3 - Objective Gravity and Manifestly Excessive

  1. Ground 1 of the appeal contends that his Honour erred in assessing the objective seriousness of the applicant’s offence as being at the highest end of the range. Ground 2 of the appeal contends that there was a lack of parity between the sentence imposed on the applicant compared to O’Brien. Ground 3 of the appeal contends that the sentence was manifestly excessive. Ground 2 only arises if grounds 1 and 3 are not made out. Grounds 1 and 3 can be dealt with together.

  2. In relation to ground 3, the relevant principle governing a complaint that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (“Hili”):

“As was said in Dinsdale v The Queen [(2000) 202 CLR 321; [2000] HCA 54 at [6]], ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; [“Wong”], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say … in Wong [at [58]], ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.”

  1. In relation to ground 1, it is necessary to address how the sentencing judge addressed the submissions of the parties concerning two separate but related concepts of importance to sentencing, namely the “objective seriousness” of an offence and the “moral culpability” of the offender. As its name implies, the former involves an objective assessment of the seriousness of the crime and the matters causally related to it. The latter is concerned with an offender’s moral blameworthiness for an offence. A determination of moral culpability can involve a consideration of a wider set of subjective factors affecting an offender than the former (see: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27] and [54]; Bugmy v The Queen (2013) 249 CLR 571 at [44]; Veen v The Queen (No. 2) (1987-1988) 164 CLR 465; [1988] HCA 14; Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [57]; Zreika v R [2021] NSWCCA 243 at [55]).

  2. In Tepania v R [2018] NSWCCA 247 at [112], Johnson J described the matters that can bear upon an assessment of objective seriousness as follows:

“In sentencing for an offence (whether or not a standard non-parole period offence), a court should make an assessment of the objective gravity of the offence applying general law principles, so that all factors which bear upon the seriousness of the offence should be taken into account (unless excluded by statute). Factors such as motive, provocation or non-exculpatory duress may be taken into account in this way. Regard may be had to factors personal to the offender that are causally connected with or materially contributed to the commission of the offences, including (if it be the case) a mental disorder or mental impairment. It was recognised at common law that motive or emotional stress which accounts for criminal conduct is always material to the consideration of an appropriate sentence: Neal v The Queen (1982) 149 CLR 305; [1982] HCA 55 at 324-325 (Brennan J). Motive for the commission of an offence is an important factor on sentence: Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 55-56 [171]-[172] (Callinan J).”

  1. An assessment of an offender’s moral culpability includes both a consideration of the objective seriousness of their offence but also extends to a consideration of some of their personal circumstances, including circumstances which may affect their capacity to reason, appreciate the full wrongfulness of their actions or control their conduct. Commonly this includes intellectual impairments and mental illness (Muldrock at [54]) as well as a background of social deprivation (Bugmy at [44]) including being raised in an environment where the abuse of alcohol was common (Munda at [57]; Craft v R [2021] NSWCCA 131 at [42]).

  2. Further, in relation to the assessment of objective gravity of an offence, where a standard non-parole period is prescribed under s 54A of the Sentencing Act, it is common for sentencing judges to locate the objective seriousness of an offence on a hypothetical range of seriousness for such offences. However, that is not obligatory for such offences (s 54B(6); Tepania at [110] per Johnson J) and even more so with offences that do not carry standard non-parole periods.

  3. There is no standard non-parole period for manslaughter. Given that, and the much repeated statements that, of all crimes, manslaughter is said to "thro[w] up the greatest variety of circumstances affecting culpability" (R v Blacklidge (Court of Criminal Appeal (NSW), Gleeson CJ, 12 December 1995, unrep; see also R v Blake Davis [2021] NSWSC 235 at [138] per N Adams J) it follows that an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters or types of manslaughters is not only not obligatory, it is unlikely to be of much utility. For my part I consider that it is an analysis that is best avoided.

  4. In this case, the Crown’s submissions to the primary judge attempted to respect the distinction between objective serious and moral culpability, although with both it sought to place them on some hypothetical range. In relation to the applicant, the Crown submitted that the objective seriousness of his offending was “well above mid-range conduct for offences of this kind approaching the high end” and that his moral culpability “is at the highest end for an offence of unlawful and dangerous behaviour”. The applicant’s counsel submitted that the objective seriousness of his offending was “within the mid-range of objective seriousness”. It was accepted that it was “open to find that it was in the upper end of the mid-range” but not “in the high range”.

  5. In relation to O’Brien, the Crown submitted that the objective seriousness of his offending was “about mid-range” and, in relation to his moral culpability, submitted that his conduct “represents an [in]tolerable barbarism fuelled by machismo and alcohol”. O’Brien’s counsel submitted that his offending “falls between the low and the mid-range of objective seriousness”.

  6. In that part of his Honour’s judgment headed “objective seriousness” (at [56] to [67]), his Honour characterised O’Brien’s conduct as falling “below the midrange of objective seriousness in terms of the role that he played in the joint criminal enterprise” (at [57]). In relation to the applicant his Honour found as follows (at [61] to [66]):

“61.   A relevant distinction between murder and manslaughter, in these circumstances, is the presence or absence, respectively, of an intention to cause grievous bodily harm, or really serious physical injury, which intention may be inferred in circumstances where an offender engages in conduct that has such an inevitable and obvious consequence. In this situation, I do not draw that inference, because the parties are agreed, on the facts that are before the Court, that no such intention existed. Nevertheless, the obvious and inevitable consequences of the conduct of Mr Paterson place his conduct, if not in the highest category of manslaughter, then not much below it.

62.   During the course of submissions, the Crown expressed the view that the moral culpability of Mr Paterson was at the highest end for an offence of unlawful and dangerous behaviour, but not a worst case of manslaughter.

...

66.   Notwithstanding the view that the Court is not bound by the Crown's expression of opinion as to the appropriate classification of the conduct of Mr Paterson or Mr O'Brien, and notwithstanding that it is difficult, because of the conduct of Mr Paterson, to imagine a worse case of manslaughter by unlawful and dangerous act, I accept, in the totality of the circumstances of this offending, that the offence, in its objective seriousness, is not a worst case but, rather, at the highest end of culpability.”

  1. With respect to his Honour, these passages are suggestive of an elision between the concepts of objective seriousness and moral culpability. Paragraph 62 accurately reflects the Crown’s submission about moral culpability but it is located in a discussion of “objective seriousness”. The finding in [66] appeared to translate the Crown’s submission on moral culpability to objective seriousness and did so in a manner that was adverse to the offender. A finding of objective seriousness “at the highest end” is more severe than what the Crown submitted namely “well above mid-range”. Moreover, the findings that his Honour made about the applicant’s deprived background (see [23] above) arguably warranted a reduction in his moral culpability and not some apparent increase.

  2. That said, the error contended for was not that his Honour elided the difference between objective seriousness and moral culpability or that he denied the applicant procedural fairness. Instead, it was contended that his Honour’s characterisation of his conduct at the highest end of culpability was not open to his Honour. Given my misgivings about the utility of locating a particular instance of manslaughter on some hypothetical range, I will treat this ground as an aspect of ground 3 in that it explains how it was, on the applicant’s case, that his Honour came to impose a sentence that was manifestly excessive.

  3. In that context, his Honour found that the “starting point for [the applicant’s sentence] must be a high one and not much below 25 years” (at [101]). Hence, his Honour noted that he commenced with a total sentence of 22 years which was determined “hav[ing] taken into account all of the subjective circumstances and my determination as to the serious nature of the offence and the conduct that led to it” (at [102]).

  4. In support of ground 1, the applicant’s written submissions contended that his Honour “overestimated the seriousness of the offending, in part, because his Honour essentially ascribed too much causative connection between the applicant’s ‘stomping’ and the deceased’s death”. I do not accept this contention. So far as the applicant is concerned the agreed facts identified his acts with clarity and recited that they were causative of Mr Mason’s death in terms that rendered the applicant a principal offender. While at one point his Honour discussed the applicant’s culpability in terms of joint criminal enterprise, his Honour’s analysis of the objective seriousness of the applicant’s offence was directed to his actions namely kicking Mr Mason’s head twice, stomping on his head and leaving him in the road.

  5. Nevertheless, the essence of the applicant’s case on appeal is that his Honour erred in characterising his conduct as close to the “highest end of culpability” and consequently erred in determining that the appropriate sentence was 22 years imprisonment prior to allowance for the applicant’s plea of guilty. I agree.

  6. Both parties provided to the Court Judicial Information Research System (“JIRS”) sentencing statistics for manslaughter and referred to a number of comparative cases. Both did so fully acknowledging the limitations on the use of both especially in relation to manslaughter (see Magro v R [2020] NSWCCA 25 at [69] to [70]). That said, statistics can sometimes be useful in identifying cases at the extremes and can assist in any inquiry as to whether they should stay there. In this case the sentencing statistics are of some assistance in that they confirm what would be otherwise suspected, namely that the sentence imposed in this case is at the very upper end of sentences for manslaughter. The statistics for the period from September 2018 to 31 December 2020 reveal that for 66 cases where a sentence was imposed for manslaughter alone (ie, not an aggregate sentence) this is the only case where the total sentence imposed was above 14 years. Of the 263 manslaughter cases dealt with in the period January 2008 to September 2018, only five involved the imposition of a total sentence of 16 years or higher.

  7. A review of those cases that can be identified at the extremes and the cases referred to by the parties confirms that, although this was a very serious instance of manslaughter by unlawful and dangerous act, the criminality involved in cases that lead to comparable sentences to that imposed by his Honour was significantly worse and the sentences imposed for offences involving roughly similar criminality were significantly less.

  8. It is only necessary to refer to some of the cases in both categories. In relation to the former, in R v Chandler (No. 2) [2017] NSWSC 1758 the offender drove a stolen vehicle through the fence of an enclosed backyard of residential property to escape police and struck and killed an 18-month-old child in the backyard. The offender then drove dangerously in a park and on public streets to evade the police. The offender was 22 years of age and had a background of dysfunction sufficient to invoke Bugmy principles but had a poor criminal record. He was sentenced to 19 years imprisonment with a non-parole period of 13 years. He received a 5% discount on account of his plea such that the starting point for his sentence was 2 years less than the applicant.

  9. In R v Attwater; R v Maris [2017] NSWSC 1710 (“Attwater”), after a trial, Fullerton J imposed an aggregate sentence of 19 years imprisonment with a non-parole period of 14 years for aggravated sexual assault and manslaughter. The indicative sentence for manslaughter was 18 years imprisonment. The starting point for that sentence is less than the starting point for the sentence imposed on the applicant in this case. In Attwater, the offender sexually assaulted the deceased with brutal force and she died from blood loss from injuries to her vagina. An appeal against conviction and sentence, including on the ground the sentence was manifestly excessive, was dismissed (Attwater v R; Maris v R [2021] NSWCCA 17).

  10. The notorious case of R v Loveridge [2014] NSWCCA 120 (“Loveridge”) involved conduct that has some similarity to that of the applicant. The offender pleaded guilty to unprovoked and random violent attacks on five different people over the course of an evening at Kings Cross. He was charged with one count of manslaughter, one count of assault occasioning actual bodily harm and three counts of assault. The manslaughter offence arose from the offender punching a complete stranger to the head as he talked on a mobile phone. The deceased fell to the ground and the impact of his head on the pavement caused a severe fracture to his skull (at [26]).

  11. The offender in Loveridge was aged 18 at the time of the offence, had a deprived upbringing and it was his first time in custody (at [77] and [270]). A Crown appeal was upheld and the offender was sentenced to an effective total term of 13 years imprisonment with a non-parole period of 10 years and 2 months. For the manslaughter offence, the offender was sentenced to a total term of imprisonment for 10 years and 6 months with a non-parole period of 7 years. Prior to the 25% allowance for the offender’s plea, the offender’s sentence for manslaughter was 14 years imprisonment.

  12. In R v Jones [2017] NSWSC 19 (“Jones”), Harrison J sentenced an offender to 10 years imprisonment with a non-parole period of 6 years after a discount of 15% on account of the offender’s plea of guilty. Prior to discount the total sentence was 11 years and 9 months. The offender was 22 years of age and punched a much older man following an argument over a traffic incident. The offender had a strong subjective case with no significant criminal record, was remorseful and found to have good prospects of rehabilitation.

  13. In R v McNeil (No 4) [2015] NSWSC 1198 (“McNeil”), the offender was sentenced to an aggregate sentence of 10 years imprisonment with a non-parole period of 7 years and 6 months for one count of manslaughter, assault occasioning actual bodily harm and assault. The indicative sentence for manslaughter was 9 years imprisonment which made provision for a 25% discount. In McNeil, the offender was a powerful man affected by alcohol who took offence at something that was said by three youths whom he then assaulted. The deceased was a passer-by who tried to intervene, and the offender felled him with a single punch to the face which resulted in his head colliding with the pavement (at [9]). He then assaulted the deceased’s brother. The offender had a criminal record that included offences of violence but had prospects of rehabilitation that were assessed as “reasonable” (at [37]).

  14. The Crown’s comprehensive submissions emphasised that Loveridge, Jones and McNeil all involved a single punch (as did R v Grogan [2017] NSWSC 378 and R v Lane (No 4) [2018] NSWSC 1898) and contrasted that with the greater level of violence involved in this case. I agree that the level of violence involved in this case was more severe than the various one punch manslaughter cases. However, unlike at least some of those cases where the attack was entirely unprovoked and was, such as in Loveridge, part of a deliberate attack on random strangers, in this case the confrontation was at least initiated by Mr Mason although the response of the offender and O’Brien was grossly disproportionate. The objective seriousness of this case was worse than the one punch manslaughter cases and the applicant’s subjective case was poor. However those matters did not warrant a sentence that was significantly higher than the sentences imposed in those cases.

  15. Serious as it was, the offender’s conduct did not warrant any characterisation of it as something close to or towards the worst category of manslaughter. A sentence of imprisonment of 22 years prior to any allowance for the plea was manifestly excessive.

  16. I would uphold both grounds 1 and ground 3 of the appeal.

Ground 2: Parity

  1. As noted, ground 2 of the appeal contended that there was excessive disparity between the sentences imposed. A consideration of parity only arises where it is accepted that the sentence is in all other respects an appropriate one and one falling within the proper discretionary range of sentences applicable in the circumstances (Jimmy v Regina [2010] NSWCCA 60 at [251]; (2010) 77 NSWLR 540). As I have concluded that the sentence is not in the proper range, this ground does not need to be determined. That said, the parity principle must be applied by this Court in re-sentencing the applicant (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [37] to [45]).

Re-Sentence

  1. On resentence, the Crown read an affidavit attaching material concerning the applicant’s conduct in custody in 2020 and 2021. The material includes five instances of misconduct, four of which involved aggressive conduct.

  2. In oral argument, Senior Counsel for the applicant, Mr Boulten SC, took the Court to the material which formed the basis for the finding by his Honour noted at [23] above. This mainly comprised a psychologist’s report which noted that the applicant’s parents had separated when he was 8 years old as a result of his father’s alcoholism. He was then raised by his mother but she often sent him to reside with his father as she struggled to raise him and his siblings. The applicant reported being assaulted by his father on a daily basis while he was affected by alcohol. The applicant also reported that his mother and stepbrother were the subject of severe violence from another partner. He left home when he was 16 years old. The psychologist described him as having been “exposed to several developmental vulnerabilities, including exposure to abuse, substance use and negative parental role modelling”.

  3. Mr Boulten SC also took the Court to a psychiatrist’s report that was tendered before his Honour. The report recounted a personal history consistent with that noted by the psychologist and expressed opinions about his being affected by ADHD and a predisposition to depressive symptoms and aggressive behaviour that were accepted by his Honour.

  4. The applicant inflicted savage violence on Mr Mason when he was effectively defenceless and any threat or offense from his behaviour had dissipated. This was clearly a very serious example of manslaughter by unlawful and dangerous act. It carries a commensurate level of moral culpability for the applicant save that I accept that his personal background warrants a consideration of Bugmy principles including a reduction in his moral culpability (as does his mental condition). I otherwise adopt the findings of fact of the sentencing judge noted above (at [22] to [24]). On any view the applicant’s conduct was more serious than O’Brien’s and his subjective case was worse such that any sentence imposed on the applicant must exceed that imposed on O’Brien.

  5. Prior to any allowance for the plea, I would impose a sentence of 16 years imprisonment. Like the sentencing judge, I do not consider that a finding of special circumstances is warranted given the applicant’s limited prospects of rehabilitation and the length of time he will be supervised on parole in any event. After allowance for the plea, the total sentence will be 12 years imprisonment and the non-parole period will be 9 years.

  1. Otherwise, I note that the offence of manslaughter is a "serious and violent offence" as defined in s 5A of the Crimes (High Risk Offenders) Act 2006 (NSW) and pursuant to 25C of that Act the applicant is advised of the existence of that legislation and its application to the offence he has committed.

  2. Accordingly, the orders that I propose are:

  1. The applicant be granted leave to appeal from the sentence imposed by Rothman J on 12 March 2020;

  2. Appeal allowed;

  3. Set aside the sentence;

  4. In lieu thereof:

    1. The applicant is sentenced to a term of imprisonment comprising a non-parole period of 9 years commencing on 7 August 2017 and a balance of the term of the sentence of 3 years;

    2. The applicant will become eligible for release on parole upon the expiration of the non‑parole period on 6 August 2026.

    1. R A HULME J: I agree with Beech-Jones CJ at CL.

    2. N ADAMS J: I agree with the orders proposed for the reasons provided by Beech-Jones CJ at CL.

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Amendments

29 November 2021 - Order 4(a) - date sentence to commence amended to 7 August 2017.


Order 4(b) - date first eligible for release on parole amended to 6 August 2026.

Decision last updated: 29 November 2021

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