R v CK

[2002] NSWSC 942

CITATION:	R v CK [2002] NSWSC 942
CURRENT JURISDICTION:	Common Law Division Criminal List
FILE NUMBER(S):	SC 70087/01
HEARING DATE(S):	20 May, 22 May, 3 July, 13 September 2002
JUDGMENT DATE:	11 October 2002
PARTIES :	Regina v CK
JUDGMENT OF:	Studdert J

COUNSEL :	E. Wilkins (Crown) M. Ramage QC (Prisoner)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Andrews Solicitors (Prisoner)
LEGISLATION CITED:	Children (Criminal Proceedings) Act Crimes (Sentencing Procedure) Act Children (Criminal Proceedings) Amendment (Adult Detainees) Act
CASES CITED:	R v Thomson (2000) 49 NSWLR 383 The Queen v Edwards (1996) 90 A Crim R 510 R v Howard & Ors (1992) 29 NSWLR 242 R v GDP (1991) 53 A Crim R 112 R v Kama (2000) 110 A Crim R 47 R v Pham (1991) 55 A Crim R 128 R v Tran [1999] NSWCCA 109 R v MacDonald (unreported) NSWCCA, 12 December 1995
DECISION:	See paras 36-38.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

STUDDERT J

Friday 11 October 2002

70087/01 REGINA v C.K.

SENTENCE

1 HIS HONOUR: On 22 May 2002 CK pleaded guilty to manslaughter upon the presentation of an indictment charging him with the commission of that offence on 16 April 2000. The crime was committed when CK was only sixteen years old. The victim of the crime was only seventeen years old. CK was then a school student in year 11; the deceased had left school and was employed as a storeman.

2 After CK’s plea the matter was stood over to 3 July 2002 for evidence and submissions on sentence. Unfortunately, the presentence report available on that date did not meet the requirements of s 25 of the Children’s (Criminal Proceedings) Act and it became necessary on 3 July 2002 after receiving some brief evidence to adjourn the hearing on sentence until 13 September 2002. On the latter date the evidence on sentence was completed and I heard the submissions of counsel before adjourning the proceedings until today for the purpose of passing sentence.

3 At the outset I propose to address the objective facts concerning the commission of this crime. The deceased sustained the injuries that caused his death when he was driving his car in Eucumbene Drive, Woodcroft on the evening of Friday 14 April 2000. The deceased was injured when CK threw a metal bar at the deceased’s car as it passed by the place where CK was standing and the bar penetrated the deceased’s skull.

4 The Court was presented with a statement of facts (Exhibit A), which was not challenged. That statement is lengthy but I consider it important that it be fully incorporated in these remarks on sentence, save for the omission of the names of those mentioned in the statement and for the omission of the name of the school CK was attending. This statement of facts records that, regrettably, there was tension between a group of youths of Australian background and a group of youths from a different background. CK found himself in the latter group, although he was actually born in Australia of Korean parents. The statement gives an account of disturbing happenings involving many youths. That statement concludes with an account of the criminal act for which CK is now to be punished and an account of its consequences. The consequences of that act committed by CK can only be described as tragic, as involving the loss of a life, and the loss experienced by the family of the deceased. The consequences are also tragic for CK and his family. The statement, Exhibit A, records:

“On 14 April 2000 in the early evening, [CK] spoke to a friend of his [KB] at the Blacktown Railway Station. [CK] and [KB] had known each other at school when both attended [school] at Marayong. [CK] told [KB] that a number of boys were going to McDonalds at Woodcroft (a suburb near Blacktown) to celebrate the sixteenth birthday of [MS].

[KB], [CK] and another youth [AN] went by bus to McDonalds at Woodcroft, arriving there at about 6.30 pm. After being at McDonalds for about an hour, [KB] saw a person [SM] arrive at McDonalds. [KB] did not like [SM]. The animosity arose from their school days. [KB] considered [SM] to be a racist. [KB] told a number of the Asian youths at McDonalds about an earlier clash between him, [SM], [SM’s] brother [J] and another youth [NM] (the latter youth being a close friend of the deceased). The evidence is not clear as to exactly which of the Asian youths with [KB] at McDonalds heard [KB’s] account of the earlier clash. However the story led to a confrontation in the carpark near McDonalds between [AN], another youth named [DS] and [KB] on one side, and [SM] on the other. Words were exchanged and [SM] drove off.

About fifteen minutes later [SM] returned to McDonalds with his brother [J] and two friends (one being [DB]). There was a further clash between the Asian and Australian youths, with one of the Australian youths making a racist comment. Five or six of the Asian youths confronted the Australian youths who ran to their car and left. [DS] hit the car with his hand as it left. There is no evidence that [CK] participated in any of these clashes involving the Asian and the Australian youths, although he was present at McDonalds when they occurred.

The police arrived at McDonalds after the Australian youths had left and told the Asian youths to move on. By this stage, other Asian youths had arrived at McDonalds, and about thirty of them including [CK] walked down to the Woodcroft Community Centre at the nearby lake.

Meanwhile a number of the Australian youths had arrived back at McDonalds looking for the Asians, who by then had left and gone to the lake. A group of the Australians comprising the deceased, [NM], [JM] and [DB] drove in the one car from McDonalds to the Woodcroft Community Centre near the lake in search of the Asians. They saw fifteen to twenty Asian youths in the carpark at the Community Centre. [NM] recognised some of them as being from his old school at Marayong. There was a brief verbal clash between the Asians and Australians and the Australians returned by car to McDonalds.

After the Australians left the lake area, [MS], who was with [CK], took two metal poles from a truck parked on a vacant block of land in Antique Street. This block is behind some tennis courts that are part of the lake complex. One of the metal bars obtained by [MS] was hollow. The other metal bar was sold. [MS] kept the hollow metal bar and gave the solid metal bar to [CK]. (The solid metal pole later removed from the deceased’s head was subsequently identified by the owner of the truck as one of the poles that had been taken from his truck.)

Meanwhile the Australians arrived back at McDonalds. There they met two carloads of Islanders who had arrived to assist them. Four carloads of people, including the deceased and his friends then set out from McDonalds. Two of the cars (a green Ford Escort and a white Ford Escort) contained Islanders and two contained the Australians. Some of the Islanders were armed with sticks, pipes and broom and axe handles. The evidence varies greatly as to the number of Islanders who were armed with these types of weapons. The evidence also varies as to the number of Australians and Islanders who went from McDonalds to the lake at this time.

On arriving at the lake, the Islanders brandishing their weapons charged towards [CK] and his friends. The Australians followed. There is no clear evidence of the exact number of Australians and Islanders involved in this charge. It appears to have involved somewhere between twenty and thirty of them. However, the perception of the Asian youths at the lake was that they were vastly outnumbered by the Australians and the Islanders. They scattered as soon as they saw the Australians and Islanders coming and ran away in all directions. One of the Asians was thrown into the lake, but was assisted to get out without being harmed.

A group of Asian youths that included [CK] ran around the lake and hid in a partly built house in Guthega Close near the lake. This group included [MS], [IW], [AS], [JCB] and possibly one other person. [CK] and the group he was with eventually moved from the house out into the street. A number of the group picked up sticks and bricks from around the house.

Meanwhile the Australians and Islanders had returned to their cars and driven in convoy up Woodcroft Drive and eventually into a street called Bricketwood Drive. They were searching for the Asians. The deceased was driving his own motor vehicle, a gold Commodore sedan. In that vehicle with him were [NM], [NC], [DB] and [AR].

At a roundabout at the corner of Bricketwood Drive and Eucumbene Drive, the deceased turned right. The other cars in the convoy kept travelling along Bricketwood Drive. The deceased drove down Eucumbene Drive and then turned left into Guthega Close. Guthega Close winds around to Waterside Drive near the lake. The deceased and his passengers were unfamiliar with the area in which they found themselves. They drove along Guthega Close but stopped suddenly when they saw a group of Asians standing in the street armed with wooden stakes and poles.

A number of the Asians began throwing rocks at the deceased’s car. [NM] got out of the front passenger seat and there was an exchange of abuse between him and the Asian group. Two or three of the Asian group then ran at the deceased’s car. The deceased reversed the car rapidly down Waterside Crescent, stopped, did a U-turn and drove back around Guthega Close the same way he had driven in. There is no evidence that [CK] played any, or any significant part in this clash, although he was present in the area at this time.

[CK] along with a number of the other Asian youths then walked up Eucumbene Drive towards the roundabout at the corner of Bricketwood Drive and Eucumbene Drive. Meanwhile in order to leave the area, it was necessary for the deceased and his friends to drive along Eucumbene Drive in the same direction as the Asian youths were walking.

The deceased drove up Eucumbene Drive away from the lake. When his vehicle approached the roundabout at the corner with Bricketwood Drive, one of the deceased’s passengers, [NC], saw about five Asian youths carrying what he described as bats, standing on the footpath on the left side of the roundabout. To turn left into Bricketwood Drive at the roundabout the deceased would have had to drive in close proximity to this group. Instead, he continued driving up Eucumbene Drive away from the lake. As the deceased’s car passed the group on the left hand corner of the roundabout, one of them [MS], threw a brick at the car. It missed the car. The deceased drove his car through the roundabout. The car continued up Eucumbene Drive on the correct side of the road.

Three Asian youths had proceeded along Eucumbene Drive past the roundabout and were near a tree on the right hand side of Eucumbene Drive as the deceased drove through the roundabout. They were on the other side of the roundabout from [MS], but not far from the roundabout. This group comprised [CK], [IW] and [JLB]. After he threw the brick at the deceased’s car, [MS] called out to them that the deceased’s car was coming.

[CK] and [IW] stepped out onto the road (Eucumbene Drive). [CK] had the solid metal pole he was given earlier in the evening. [CK] threw the pole at the deceased’s car as it passed. [IW] also threw a stick at the car. The stick thrown by [IW] missed the car. It hit a “For Sale” sign on the other side of the road. [IW] saw [CK] spin around immediately after [CK] had thrown the metal pole.

Inside the deceased’s vehicle, [NM] was in the front passenger’s seat, [NC] was sitting in the back on the right behind the deceased, [DB] was sitting in the back on the left hand side and [AR] was in the middle of the back seat. [AR] saw an Asian youth throw the metal pole at the car. He saw it shatter the driver’s window. [DB] heard the glass smash and saw the deceased’s hands come off the steering wheel. The car veered left up onto the gutter and came to rest on a dirt embankment. The deceased slumped over the steering wheel. It was only after the vehicle stopped that the passengers saw that the metal pole had penetrated the deceased’s skull near his right ear and was embedded in his head. None of the occupants of the deceased’s vehicle had been carrying any weapons that evening. No weapons were located in their vehicle.

[CK] told [IW] while they were standing in Eucumbene Drive between the tree and the roundabout that he had thrown the pole and shattered the window of the car. [CK], [IW] and [JCB] then met up with [MS] and others who had been in the area at the time. They went down Bricketwood Drive and hid around the back of a vacant partly built house in that street. At the house [CK] again said that he had thrown the metal pole at the car. He repeated this in a telephone conversation with his friend [RA] while he was hiding in the house. At this time he told [RA] that the car had crashed.

[CK] telephoned his friend [NM] from the house where he and his friends were hiding and arranged for [NM’s] mother to come and collect them. [NM] lived close to the scene of the crash. [CK] spent that night at [NM’s] house. At about 10-45 pm that evening [RA] telephoned [CK] and had a conversation with him. At that time [CK] told him that he thought someone had died in the crash because there were police and ambulances at the crash scene. In both conversations with [RA] that night [CK] asked him not to say anything about what had happened and to ask his friends to do the same.

After the crash, the deceased was taken by ambulance first to Blacktown Hospital and then to Westmead Hospital. At Westmead Hospital, he was operated on by a neurological surgeon, Dr Mark Dexter. Dr Dexter found that the metal pole had penetrated the deceased’s skull at one of its thickest points, passed through his brain and fractured the skull in a separate position. He removed the metal pole and attempted to stop the massive bleeding which resulted from the injury. The deceased was given blood transfusions. However the deceased had suffered severe and irreversible brain damage as a direct result of the metal pole passing through his skull. He died on 16 April [2000].”

5 The metal bar became an exhibit (Exhibit K). It is made of solid metal. It is approximately 30-35 cm long and approximately 6 mm in diameter. There are photos of it in Exhibit C; it is shown in position in the trailer from which it was taken in photos 43 and 44 of that exhibit.

6 It is unnecessary here to record the content of the post mortem report prepared by Dr Ellis (part of Exhibit B). Sufficient has been recorded in the statement of facts set out above as to the nature of the head injury which caused the death of the deceased. Unquestionably that injury was caused by the solid metal bar which had been thrown by CK and which had penetrated the deceased’s skull and his brain. Dr Dexter opined in a report in Exhibit C that the injuries to the deceased were consistent with the metal bar having been thrown with extreme force, and to my mind that conclusion is inescapable on the objective evidence. The bar broke the driver’s window in the car of the deceased before penetrating the deceased’s skull at one of its thickest points, and then it passed through the deceased’s brain before causing yet a further fracture.

7 I am satisfied beyond reasonable doubt that CK caused the death of the deceased by an act that was both unlawful and dangerous. Whilst the consequence of the act was not intended, the act of throwing was deliberate and was an act which any reasonable person, including any reasonable sixteen year old boy, would have appreciated involved the risk of serious injury should any person be struck by it. Notwithstanding the earlier events, CK’s act was committed at a time when the deceased and the occupants of the car presented no threat to CK – the car was at that stage merely passing by.

8 I will now consider the subjective features in this case and in doing so I draw upon the background report prepared by officers of the Department of Juvenile Justice (Exhibit 1), other documentary evidence and oral evidence given in the course of the hearing on sentence.

9 CK was born in Sydney on 4 January 1984. He was born to parents who came to Australia from South Korea. When CK was four years old his parents separated and, after being with his mother for two years, CK has spent the rest of his life living in his father’s household. His grandmother has helped in his upbringing. His father eventually remarried and at the present time CK lives with his father, his stepmother and his stepbrother. His mother has also remarried and he has a stepsister as well. Following their separation, CK’s mother settled in Perth and she has only seen her son twice since then, once six years ago and recently when CK’s mother came to Sydney to afford her son support before this Court.

10 CK was educated through primary school and secondary school to year 11. However after the deceased met his death in the circumstances outlined, it was considered inadvisable for CK to return to the school where he was receiving his secondary education and he did not do so. He made some unsuccessful attempts to undertake TAFE courses but then found employment in a Kodak franchise. The opportunity for this employment came through his girlfriend whose father was conducting that business. CK is presently employed at a theatre at Darling Harbour. It is his hope eventually to complete his secondary education and ultimately to study architectural technology, a diploma course at TAFE.

11 The authors of the background report, Exhibit 1, expressed the following assessment:

“[CK] impresses as an intelligent, shy and quiet young man who caused the tragic death of another young person. He remains traumatised and overwhelmed by this unfortunate tragedy and this is evident from the daily flashbacks, sleep disturbance and nightmares that he proclaims he experiences. In the lead up to the conclusion of these Court matters [CK] has mentally avoided careful consideration of actively participating in securing character references, referrals for counselling, engagement with Juvenile Justice Intensive Programme Unit as well as maintaining regular contact with his legal team. This avoidance together with severe sleep disturbance, nightmares and flashbacks of the incident are intensifying his emotional stability to the extent that he has found it extremely difficult to assist himself by actively participating by absorbing himself in the tasks assigned to him. However, [CK] has actively participated and cooperated fully with this Officer of the Department of Juvenile Justice in compiling the background report. In addition to this, the young person is now beginning to overcome his avoidance issues and has begun to fully engage with all interested parties involved. [CK] recently accepted a counselling referral to High Street Youth Health Centre to assist him cope with the plethora of unresolved issues that he has since this tragedy occurred.
The young person states that he felt extremely bad, numb and weak ([CK’s] own words) after learning that he was directly responsible for the death of another human being and maintains that he did not intend to cause injury or death to the victim when he threw the metal rod at the victim’s vehicle. Additionally [CK] informed the author of this report that he deeply regrets the death of the victim and wishes that he had listened to his father that evening and stayed at home. As a result [CK] now feels angry about going to Woodcroft that evening and being involved in the death of another young person. He also expresses his profound remorse for the death of [SM].
Since the death of the victim [CK] reports to having flashbacks of the incident a number of times a day as well as suffering severe sleep disturbance. He finds it extremely difficult to get to sleep at night and watches television until the early hours of the morning, eventually falling to sleep. The young person’s father, [JSK], understands his son’s difficulty in sleeping as well as the reasons for using the television to assist in falling asleep but because of financial pressures he has unfortunately had to request [CK] to desist from this activity. When further enquiries were made about the sleep disturbance that [CK] experiences he stated that on many occasions he has thought about wanting to die but has not yet conceived a plan to carry this out.”

12 CK had been assessed by Dr Clark, the consultant psychiatrist. His report became Exhibit 4. Dr Clark considers CK is suffering from “a severe grief reaction. This is technically part of a post traumatic stress disorder.” Dr Clark said this:

“Remorse is not a usual psychiatric concept. However, it is a common enough moral concept, being the ‘compunction of conscience for an evil act committed,’ the sense of self-reproach or tortured sense of grief felt for one’s action. It is different from regret, different from contrition. It is that self-approbation one feels when one has a guilty feeling.
At the extreme of remorse are those people who kill themselves. Their self-punishing guilt so consumes them, they cannot face going on. We have found (Clark and Glaser) that suicides in prison are associated with those individuals having committed killings.
In this case, first of all, [CK] expressed regret and continues to be preoccupied with his act. Secondly, he has had suicidal thoughts or wishing he could get away from it all. Thirdly, he has the characteristic symptoms pattern of a Post-traumatic Stress Disorder. That is, there is no reason to suppose his emotional reaction is not genuine. Indeed, he fulfils all the criteria for a remorse reaction from the clinical point of view.
He is most unlikely to be involved in further violence...
It is important that he is not further victimised since he is a suicide risk. This [presumably a reference to victimisation] is highly likely if he is imprisoned. The subculture in NSW prisons is racist in the extreme… Most recent murders in prison have been a result of interracial strife. His case fits the typical profile for a suicide in gaol.”

13 The service of Dr Clark’s report upon the Crown prompted the Crown to arrange a psychiatric assessment by Dr Skinner. Dr Skinner (whose report is Exhibit G) does not consider that CK is a suicide risk, and Dr Skinner said this in her report of 11 September 2002:

“Although he is experiencing symptoms of psychological stress with heightened anxiety, a sleep disturbance and lowered energy levels, I do not consider that [CK] is suffering from a psychiatric illness or emotional disorder. His anxiety in the situation is within the range that would be expected of any person in his circumstances.
[CK] is not suffering from a depressive illness. I do not consider that [CK] presents a suicide risk. I disagree with Dr Clark that [CK] has suicidal thoughts. He states that he wishes he could ‘get away from it all’. I spent some time with [CK] discussing what he meant by this, and I understood him to mean that he wishes the incident had never happened and he wished he could get away from his present predicament. I disagree with Dr Clark that [CK] has ‘the characteristic symptoms pattern of a post traumatic stress disorder’.
I note Dr Clark’s comments on the relationship between suicide in prison and individuals who had committed killings. I agree that there are various risk factors taken into account on reception to a prison or juvenile detention centre. These include the association between violent acts and suicide, including the killing of another person and suicide. However, in the case of [CK] a number of factors suggest that he is not at risk of suicide. I understand that he has no previous history of aggression or violence. As mentioned above, he has a supportive family and good relationships with his girlfriend and others. He has no previous history of suicide attempts and he denies suicidal thoughts thus I do not think that he fits the typical profile for a suicide in jail. There is no indication for any psychiatric treatment.
With respect to the issue of remorse, I believe that [CK] is remorseful in the sense that he is genuinely sorry that his actions resulted in a loss of life. He does have feelings of self-concern, as he is worried about his present situation and his future. I do not know what Dr Clark means by ‘fulfils all the criteria for a remorse reaction from the clinical point of view’. I do not think that [CK] is experiencing ‘extreme remorse or self punishing guilt’. He told me that he left school and that the family moved, not because he was remorseful, but rather because others at the school and in the local area know the victim and he and his family were afraid that they might cause problems for him and his family. However, I do believe that he is genuinely sorry that the victim was killed and that his actions were responsible for the death.”

14 Neither psychiatrist was called to give evidence and on the material before the Court I see no reason to prefer Dr Clark’s opinion to that of Dr Skinner. The author of the background report (Exhibit 1) has expressed his concurrence with Dr Clark’s opinion as to the suicide risk, but it has not been suggested that the author is qualified to express such an opinion. On the state of the evidence, I am unable to find that CK is a suicide risk. There is, however, evidence before me in an affidavit from the solicitor with the conduct of this matter in the Office of the Director of Public Prosecutions (Exhibit H) concerning the steps that can be taken in the event of a perceived suicide risk attaching to a person being admitted to a juvenile prison. I shall return to this evidence presently.

15 I accept for present purposes, as Dr Skinner opined, that CK has feelings of self concern. It would be unnatural for this not to be so as he awaits sentence and faces the uncertainty of his future. It would be unnatural for him not, out of self interest alone, to deeply regret what he did. However, I accept that his regret extends beyond self interest. There is abundant evidence as to the contrition of CK, even though he gave no evidence before the Court. His father, an uncle and a cousin who came from Western Australia gave evidence of his expressions of contrition and, of course, expressions as to this are to be found in the psychiatrists’ reports and in the report from the juvenile justice officers. In addition to that evidence, there is the evidence that CK met the mother of the deceased in June this year to express his sympathy on the death of her son. I consider this meeting is to be regarded as evidence of contrition and I observe in relation to the statement that the deceased’s mother gave concerning this meeting that the deceased’s mother was generous in her response at such meeting. CK has visited the grave of the deceased and I accept this to be further evidence of contrition. In this case I view the plea of guilty to the crime of manslaughter as further evidence of contrition.

16 The plea of guilty is also to be taken into account consistently with the principles expressed in R v Thomson (2000) 49 NSWLR 383. There were lengthy committal proceedings in this case before CK was committed for trial and when a trial date was set in December 2001 this court was informed that the estimate of the hearing was eight weeks. The trial date appointed when that estimate was given was 20 May 2002. When the matter came before me as trial judge on that date I was asked to adjourn the matter for two days, and then on 22 May 2002 CK pleaded guilty to manslaughter.

17 Mr Ramage submitted that there was good reason for the timing of the plea of guilty, since as late as 20 May 2002 there was no expert evidence to prove that the action of CK in throwing the bar could have caused the deceased to receive his fatal injuries. It was only at that time that an expert report containing an expression of such opinion became available. That may be so, but the evidence indicated no human intervention in the progress of the bar between the time CK threw it and the time it struck the deceased.

18 Nevertheless the entry of the plea was of very real utilitarian value. It avoided the necessity for a trial estimated to take eight weeks. It avoided the necessity to call many, many witnesses. Whilst there was ample evidence available to the Crown to establish the guilt of the accused, I accept that the number of witnesses it would have been necessary to call offered the opportunity for contradictory evidence, so that it could not be said that a conviction, although likely, would have been inevitable. Mr Ramage submitted that the utilitarian value of the plea considered in conjunction with CK’s remorse and contrition called for a discount of up to thirty-five percent. The Crown submitted such a discount would be too much, and that a discount of half of that proposed by Mr Ramage would be more appropriate.

19 I have decided in all the circumstances of this case that an appropriate discount to take account of the utilitarian value of the plea of guilty and CK’s contrition and remorse is a discount of twenty-five percent.

20 CK has no prior criminal record and I accept evidence that has been given to the effect that he is not a person who before or since has been known to act violently or in an aggressive manner. His father, his uncle and his cousin gave evidence to that effect, as did a teacher who taught CK in 1998 and who continued to have some association with CK thereafter. According to this teacher, CK was not part of any gang at school and he was not an aggressive person. Unhappily, however, it seems there was some racial tension in the school in this teacher’s perception. In addition to the oral evidence, a large number of persons wrote favourably as to CK’s character (Exhibit 3). I take into account in CK’s favour his prior good character and that he is not an offender who in the past has demonstrated a propensity for violence. Further, I accept he has not come under any adverse notice of persons in authority before the commission of this crime. I assess the prospects of rehabilitation in this case as being favourable.

21 CK lives with his father, his stepmother and his stepbrother. CK’s father faces the prospect of an operation to amputate his left leg because of a tumour and he is presently unable to work. This will remain the situation indefinitely. CK’s stepbrother was born in 1990, so he is a school student. CK’s stepmother is not working. At present the household is dependent upon the father’s disability pension and CK’s earnings. CK gives his father his wages, keeping only $50 per week for himself. The removal of CK as a financial provider for the household would undoubtedly involve very real hardship for the other members of it. Mr Ramage submitted that this circumstance should be taken into account, and I am concerned to give it proper consideration. I should add so far as CK’s stepmother is concerned, that although she is not working she has no physical disability to prevent her from doing so. CK’s stepmother arrived in Australia from Korea in 2000 and is still learning English. She has done some part time work in a Korean business here and, although this may not be easy for her, I consider she ought to be regarded as capable of doing some work in the future.

22 I accept that there would be particular hardship to CK in his perception of a failure to fulfil his obligation to continue to provide for the household and I intend to take that into account. However, hardship to third parties should only be taken into account in determining an appropriate sentence where the circumstances are “highly exceptional”: see The Queen v Edwards (1996) 90 A Crim R 510. The imposition of a sentence of imprisonment on a person with others dependent on his earnings is by no means a rare happening, and whilst I accept that the imprisonment of CK will result in financial hardship to his family, I do not consider I can properly regard the circumstances of this case as “highly exceptional”. I propose nevertheless to take account of the added hardship to CK because of the distress he will experience in his perception of a failure to discharge his obligation to help to support his family.

23 I referred earlier to CK’s age. He was sixteen years and three months of age when he committed this crime. (He is presently eighteen years and nine months old.) I should, and I do, have regard to the provisions of the Children (Criminal Proceedings) Act, and I recognise that the approach I should take must be influenced by the age of this offender. Indeed, CK’s age is a very important consideration in my sentencing task. It is, as the Court of Criminal Appeal observed in R v Howard & Ors (1992) 29 NSWLR 242 at 258, “a matter calling for special care”. Judgments in the courts have consistently recognised the importance of age in the case of a young offender. Consistent emphasis has been given to the importance of the consideration of rehabilitation and, for instance, in R v GDP (1991) 53 A Crim R 112 it was recognised that considerations of punishment and general deterrence have less significance in cases involving young offenders than in cases involving adult offenders and that individual treatment aimed at rehabilitation is of greater significance with such offenders than with adult offenders. In R v Kama (2000) 110 A Crim R 47 Spigelman CJ observed (at para 14) that the sentencing judge in that case had been entitled “to identify ‘emotional immaturity’ as a matter justifying greater weight being given to rehabilitation and less weight being given to general deterrence.” CK is to be regarded as having only that degree of maturity to be found in a sixteen year old youth at the time the crime was committed, and I have regard to this subjective feature.

24 Mr Ramage has submitted that this is a case in which his client should be dealt with other than by way of a full time custodial sentence, and I have given this submission the most anxious consideration. However, I have decided that nothing less than a significant full time custodial sentence is appropriate in this case.

25 I must impose a sentence that affords appropriate recognition to the objective gravity of this offence. Plainly what CK did can only be regarded as a most dangerous act and it resulted in loss of life. Moreover, notwithstanding CK’s age when he committed this crime, it does not follow that considerations of retribution, denunciation and deterrence should be ignored in determining what sentence should be imposed for the crime of manslaughter: see R v Pham (1991) 55 A Crim R 128, and in particular the judgment of Lee CJ at CL at 135, and R v Tran [1999] NSWCCA 109, and in particular the judgment of Wood CJ at CL at paras 10 and 11.

26 On the question of deterrence, I do not consider it likely that CK would again commit a crime of violence, but there is a need to deter other youths who might be tempted to commit acts of violence, whether as members of a group or otherwise. They must understand that crimes of violence will not be tolerated.

27 The crime of manslaughter can be committed in such a wide range of circumstances that it has to be recognised that little assistance is to be gained from looking at sentences passed for other crimes of manslaughter, and I have not been taken to any cases I find of particular assistance in deciding what sentence should be imposed in this case. However, it is important that the sentence recognises that a human life has been taken as well as the manner and the circumstances in which this happened. I refer to what was said by the Court of Criminal Appeal in its unanimous judgment in R v MacDonald (unreported, 12 December 1995):

“Manslaughter involves the felonious taking of human life. This may involve a wide variety of circumstances, calling for a wide variety of penal consequences. Even so, unlawful homicide, whatever form it takes, has always been recognised by the law as a most serious act. (See R v Hill (1981) 3 A Crim R 397 at 402). The protection of human life and personal safety is a primary objective of the system of criminal justice. The value which the community places upon human life is reflected in its expectations of that system.”

28 I have come to the conclusion that I should impose a sentence of imprisonment for seven years six months. I find that there are special circumstances for the purposes of s 44(2) of the Crimes (Sentencing Procedure) Act 1999 warranting the fixing of a non parole period which is less than three-quarters of the term of the sentence. In so finding I am acutely aware of the youth of CK and of his subjective circumstances as I have reviewed them. In the interests of his rehabilitation he is going to require a lengthy period under supervision when he is released into the community.

29 Mr Ramage submitted in the event that I should reach the conclusion which I have reached that the case is one requiring full time imprisonment it would be appropriate to order that the sentence of imprisonment be served in a detention centre within the meaning of the Children (Criminal Proceedings) Act, 1987.

30 In considering that submission I must, of course, heed the amendments to s 19 of the Act affected by the Children (Criminal Proceedings) Amendment (Adult Detainees) Act, 2001. This amendment applies to persons sentenced since 25 January 2002. The section is now in the following terms:

“ (1) If a court sentences a person under 21 years of age to whom this Division applies to imprisonment in respect of an indictable offence, the court may, subject to this section, make an order directing that the whole or any part of the term of the sentence of imprisonment be served in a detention centre.
(2) A person is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 21 years, unless:
(a) in the case of a sentence for which a non-parole period has been set---the non-parole period will end within 6 months after the person has attained that age, or
(b) in the case of a sentence for which a non-parole period has not been set---the term of the sentence of imprisonment will end within 6 months after the person has attained that age.
(3) A person who is sentenced to imprisonment in respect of a serious children's indictable offence is not eligible to serve a sentence of imprisonment in a detention centre after the person has attained the age of 18 years, unless:
(a) the sentencing court is satisfied that there are special circumstances justifying detention of the person in a detention centre after that age, or
(b) in the case of a sentence for which a non-parole period has been set---the non-parole period will end within 6 months after the person has attained that age, or
(c) in the case of a sentence for which a non-parole period has not been set---the term of the sentence of imprisonment will end within 6 months after the person has attained that age.
This subsection is subject to subsection (2).
(4) In determining whether there are special circumstances for the purposes of subsection (3), the court may have regard to the following matters:
(a) the degree of vulnerability of the person,
(b) the availability of appropriate services or programs at the place the person will serve the sentence of imprisonment,
(c) any other matter that the court thinks fit.”

31 Before s 19 was amended, it was open to a court sentencing a person under the age of twenty-one years to make an order directing either that the whole or any part of that term be served in a detention centre. That position has now changed, as is apparent from the wording of the amended section set out above. I record that if s 19 still permitted me to do so, I would order that the whole of the sentence that I am about to impose be served in a detention centre. The section does not permit me to so order, as I now explain.

32 Because of CK’s present age, it is necessary to address s 19(3). I do so, and I am satisfied that there are special circumstances justifying the detention of CK in a detention centre although he is over the age of eighteen years. I identify those circumstances by reference to s 19(4). I consider that there are special circumstances because of CK’s physical and emotional vulnerability, as well as because of the better prospects of rehabilitation that, in my view, exist if he is now detained in a detention centre. Dr Skinner described CK as a slightly built young man and with his background he would at this stage be vulnerable to the sort of abuse that unhappily is well known to occur in adult institutions. Further, whilst I do not find that CK is a suicide risk, I am satisfied he is at least experiencing psychological stress with heightened anxiety, as Dr Skinner opined, and I regard it as desirable that CK should be carefully screened upon admission to his place of detention. I have regard to the affidavit of Antonino Cipri sworn on 12 September 2002 (Exhibit 8). It refers to available measures in a detention centre which, in my view, should be implemented. Indeed, I propose to make the recommendation referred in para 5 of that affidavit.

33 Under s 19(2) CK ceases to be eligible to continue to serve out his non parole period once he has attained the age of twenty-one years unless the non parole period would end within six months of his attaining that age. The effect of setting a non parole period here of more than two years and nine months, as I consider I must, means that s 19 permits me to make an order only that part of the term of the sentence be served in a detention centre.

34 I propose however to recommend, subject, of course, to favourable assessments as to his progress whilst in any detention centre where he is held, that when CK has to be transferred from the detention centre in which he is then in the process of serving his sentence, he be classified immediately to serve out the remainder of his sentence in a low risk security prison.

35 CK was detained at a detention centre for some hours after he was first charged before being granted bail, but has otherwise spent no time in custody for this crime.

36 I now pass sentence as follows: CK is sentenced to imprisonment for a term of seven years six months commencing 11 October 2002 and to expire on 10 April 2010. Having found special circumstances, I set a non parole period of four years commencing this day. I specify 10 October 2006 as the first day upon which CK will become eligible to be released on parole.

37 Pursuant to s 19 of the Children (Criminal Proceedings) Act, I make an order directing that the prisoner serve such part of his sentence as is required to be served to the age of twenty-one years in a detention centre within the meaning of that Act. I recommend that as soon as practicable following admission to the centre to which he is taken the prisoner be assessed by a psychiatrist and thereafter be given such care and treatment as may be advised by that specialist.

38 I recommend that when the time comes that the prisoner is required to leave the detention centre so as to serve the balance of the non parole period following his attainment of the age of twenty-one years, that he be classified immediately to a low risk security prison. I make this recommendation subject, of course, to favourable assessment as to his progress whilst in any detention centre from today.

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Last Modified: 10/14/2002