R v Jack Beaudean Colley (No 4)

[2010] NSWSC 1475

CITATION:

R v Jack Beaudean COLLEY (No 4) [2010] NSWSC 1475

HEARING DATE(S):

6 September 2010-8 September 2010, 13 September 2010-17 September 2010, 26 November 2010

 
JUDGMENT DATE : 

17 December 2010

JURISDICTION:

Common Law

JUDGMENT OF:

Rothman J

DECISION:

Sentenced to a non-parole period of 16 months imprisonment commencing 14 June 2010 and expiring 13 October 2011, with a balance of term of further imprisonment of 3 years and 2 months, expiring 13 December 2014. The total sentence is imprisonment for 4 years and 6 months. First eligible for release on 13 October 2011.

I direct that the prisoner be assessed forthwith, and, for the reasons herein associated with risk and the need for family support, recommend that Jack Colley be classified as a minimum security prisoner (classification C2 or lower) and be accommodated at Glen Innes.

I direct that a copy of Dr Nielssen's Report (Ex S1) be attached to these orders and provided to the Department of Corrective Services.

CATCHWORDS:	CRIMINAL LAW – sentence – manslaughter – joint criminal enterprise – parity – relative culpability – youth just over 18 years of age
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
CATEGORY:	Sentence
CASES CITED:	BP v R [2010] NSWCCA 159 Jimmy v Regina [2010] NSWCCA 60; (2010) 269 ALR 115 KT v R [2008] NSWCCA 51 MJ v R, CPD v R [2010] NSWCCA 52 Postiglione v R [1997] HCA 26; (1997) 189 CLR 295 R v GDP (1991) 53 A Crim R 112 Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465
PARTIES:	Regina (Crown) Jack Beaudean Colley (Offender)
FILE NUMBER(S):	SC 2009/258242
COUNSEL:	J McLennan (Crown) C Davenport SC (Offender)
SOLICITORS:	Office of the Director of Public Prosecutions (Crown) Moin & Associates Lawyers (Offender)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

17 DECEMBER 2010

2009/258242 R v Jack Beaudean COLLEY (No 4)

JUDGMENT

1 HIS HONOUR: Mr Jack Colley has been tried by jury and found guilty of manslaughter. He and his brother Brendan Colley were party to an agreement which resulted in the death of Stephen Cameron, who was beaten in his own home on the night of Saturday 4 October 2008. For reasons which are currently irrelevant, Mr Cameron’s partner did not realise the nature of the injuries sustained by him and his death was not discovered until the next morning. It is the Court’s function to sentence Jack Colley.

2 Manslaughter is an extremely serious offence. It carries a maximum penalty of 25 years’ imprisonment. There is no standard non-parole period, because the range of circumstances that may give rise to manslaughter is so wide. The starting point for a consideration of the appropriate penalty, in this case, is the assessment of the gravity of the objective circumstances of the case and an understanding that the offence involved the taking of human life. Whatever view one may take of the conduct of the victim, to which I will come, he was entitled to live out his life as best he could. His partner has been denied his support; his siblings have been denied a continuing relationship with their brother, and their children the benefit of an uncle; his parents have seen a child brutally killed. The loss of a brother and child is traumatic, but, as acknowledged by the victim’s father, no matter what happens in Court, nothing will bring him back. Nevertheless, to lose such a close relative is traumatic and to do so under such violent circumstances is even more difficult to bear and to understand.

3 I will deal firstly with the involvement of Jack Colley in this crime. As already stated, manslaughter is a crime committed in an extraordinarily wide range of circumstances. While the Crown may have initially suspected that Jack Colley and his brother had an intent, it has been no part of the prosecution of this offence that Jack Colley intended to cause death or intended to cause serious bodily injury to the victim, Mr Cameron. In that sense, the Crown conducted its case on the basis that the death of Mr Cameron was caused by an unlawful and dangerous act that was not intended to end in death or in really serious injury.

4 During the course of reading the victim impact statement, Mr Cameron’s sister, in an outburst, described Jack Colley as a murderer. While the Court understands that, in circumstances such as these, emotion may not always be easy to control, it is no part of the allegations proved against Jack Colley that he is guilty of murder or that he had any intent consistent with causing the death of Mr Cameron, or even causing really serious bodily injury.

5 The Court should, at this stage, also mention that Brendan Colley, the other party to this crime, pleaded guilty to manslaughter and was sentenced by RA Hulme J on 3 June 2010. After allowing for a 20% reduction in sentence on account of the utilitarian value of Brendan Colley’s plea of guilty, his Honour sentenced Brendan Colley to a head sentence of 7 years and 2 months, including a non-parole period of 5 years and 4 months. His Honour dealt with that sentence on the basis of agreed facts and the facts that arise from the trial in this matter are different from those upon which his Honour sentenced, at least in relation to the respective responsibilities of each brother.

6 The victim, Mr Cameron, was acquainted with Jack Colley’s sister, who lived a short distance from Mr Cameron. On or about Saturday 27 September 2008 there was a fight in which Mr Cameron “bashed” Ms Colley. The details of the injury are not in evidence before the Court and are not directly relevant to any issue with which the Court must deal. Ms Colley complained to her father who, in turn, informed each of the brothers that their sister had been physically assaulted by Mr Cameron. It is unnecessary for the Court to determine whether in fact Mr Cameron bashed Ms Colley. It is sufficient for present purposes to state that Jack Colley understood that he had. Neither Jack Colley nor his brother initially wanted to be involved in this issue, notwithstanding their father’s anger.

7 Jack Colley lived in Inverell and was aware of the residential address of Mr Cameron. Brendan Colley lived in Casino, but spent, with his partner Ms Jeffries, the weekend of 4 and 5 October 2008 in Inverell, visiting his family.

8 At or about 5.00pm on 4 October 2008, Jack Colley, with his brother and a friend of his brother, travelled into town and drank. By about 9.30pm, they were all heavily intoxicated and the brother’s friend decided to continue the consumption of alcohol at The Australian Hotel. Jack Colley and his brother went with him. The friend never made it to the Hotel. He fell to the ground, presumably because he was drunk, and was left in that state.

9 The two brothers continued to the Hotel but, in the course of their journey, coincidentally crossed paths with their sister. She apparently told them some of the details of the alleged “bashing” by Mr Cameron. On some material given to the psychiatrist, Jack Colley was given to understand that his sister had been raped.

10 Brendan Colley, on hearing first hand that his sister had been assaulted, and possibly from the effect of the alcohol, got particularly “riled up” and said to Jack Colley: “let’s go down … to get him”. Further he said: “let’s go, where is it, show me where he lives, we’ll go up there and bash him”.

11 The two brothers jumped in a taxi, alighted before Ross Hill School, and walked the short distance to Mr Cameron’s residence. There, Jack Colley indicated to his brother precisely where Mr Cameron lived. It was Jack Colley, the local for relevant purposes, who directed the taxi.

12 From the evidence at the trial, the Court finds that thereafter Jack Colley waited outside the premises while his brother Brendan initially entered. It is necessary to describe the premises. Relevantly it is a cottage with a veranda that is enclosed by green mesh and partly by weatherboard.

13 Brendan Colley approached the outside of the “meshed-in” veranda, knocked on the door and said: “Oh, this is Barry, Barry, I want to score some drugs”. Mr Cameron would not, at that point, let Brendan Colley into the premises, so Brendan Colley ripped the door open, ran in and commenced to hit Mr Cameron.

14 It is alleged that Mr Cameron was a local dealer in drugs, hence the introduction referred to above. There is some, but not very much, corroboration of that fact and it is unnecessary for the Court to come to any finding in that regard.

15 The bashing by Brendan Colley included punches and stomping. The stomping inflicted the fatal injuries.

16 The Court finds that during the course of this “bashing”, Jack Colley waited outside until the events took too long. On going to the door, he realised, in his drunken state, that the bashing was more serious than he had envisaged. Jack Colley went into the premises, grabbed hold of his brother and pulled him away from Mr Cameron. Neither Jack nor Brendan Colley were aware, at that stage, that Mr Cameron was dead, and he probably was not. He sounded like he was snoring.

17 The Court needs to deal with two particular pieces of evidence. There is a palm print of Jack Colley on the inside of the screen door of Mr Cameron’s premises, being the screen door leading from the veranda into the house proper. That position of the palm print is not inconsistent with Jack Colley’s entry into the veranda area only for the purposes described above. I find, based on the evidence including the absence of marks on the adjacent wall, that it was likely that this screen door was open during the altercation.

18 The second piece of evidence with which the Court must deal, is the evidence of Mr Ford who, from a distance, described what he saw beyond the green shade cloth. He saw two men throwing punches or engaged in some altercation and swinging arms. The Crown alleges that this must mean that Jack Colley was involved in inflicting the injuries. I do not agree. At least initially, when Brendan Colley commenced punching Mr Cameron, one would expect that Mr Cameron would defend himself and/or have his arms flailing and Mr Ford’s evidence is not inconsistent with the foregoing account. Nor is the destruction of the camera probative of any one of the factual scenarios.

19 Largely the foregoing account comes from the version of events given by Jack Colley in an ERISP on 6 October 2008, including a walk-through of the premises in which the bashing occurred. It is also consistent with a number of other independent pieces of evidence.

20 I accept that the two brothers thereafter left the premises together, and their conversation and conduct involved a degree of hubris and much swearing. Given that neither, at that stage, understood that the bashing had caused the death of Mr Cameron, that too is not inconsistent with the version of events that the Court accepts. No other version has been proved beyond a reasonable doubt and there are other pieces of evidence that are inconsistent with the Crown’s version that Jack Colley was physically involved in the altercation.

21 Eventually Jack and Brendan Colley arrived home. They were both scared and agitated. Brendan Colley asked his partner for the keys to the truck and said: “we’ve just had a blue … we need to go, the coppers will be chasing us”. And Brendan Colley may have also said: “we just bashed the fuck out of this bloke”. His partner, angered by these events, said: “you bloody idiot; what did you go and do that for?”, to which Brendan replied to the effect that they had seen their sister down town and that she had a busted nose and lip, which is why they went there. The partner then asked words to the effect if he was all right, then why would the police be chasing you, to which Brendan Colley replied: “he’s all right, but there’s a girl in the house, she would have called the coppers”. The evidence suggests that Jack Colley said nothing, or almost nothing, during this conversation but was generally in agreement with what was being said.

22 Whether or not Jack Colley said anything, I accept that this is one of those rare occasions in which Jack Colley’s silence, if there were silence, was an acknowledgment as to the correctness of the facts asserted by his brother. However, I do not accept that the use of the word “we” in reference to the bashing necessarily involves the proposition that each of the brothers participated in inflicting the injuries. Each of them, in the view of the Court, was involved in the bashing in that they had agreed to go to Stephen Cameron’s house to revenge their sister, but Brendan Colley was the only one who inflicted injuries. Brendan Colley was certainly the only one who kicked or stomped on Mr Cameron, which action caused his death.

23 I take the same view in relation to the loose use of words with Mr Borthwick. The use of the plural “we”, does not, in the circumstances of this case, signify that each participant was involved in inflicting injury. What is clear from the text message exchange between Jack Colley and Mr Borthwick is that neither Jack Colley nor his brother Brendan intended to kill Mr Cameron. However, they did intend to hurt him, but not in a way that would cause him serious bodily injury.

24 One further piece of evidence should be the subject of comment. That is the evidence of Senior Constable Morgan in relation to an incident on 14 March 2010. The Constable, who was not involved in the investigation of the offence with which Jack Colley was then charged, received a call which required her to attend on Jack Colley. He had attempted suicide. During a conversation with Jack Colley, Jack said: “I just can’t handle the pain anymore … someone is dead because of me”. This conversation and/or sentiment was corroborated by the ambulance officer who attended. The evidence is that Jack Colley was very upset and was crying throughout the time.

25 I mention the foregoing for two reasons, one of which relates to the subjective circumstances relevant to the appropriate sentence to be applied and the acceptance of responsibility by Jack Colley for the effects of his conduct or his omission. Secondly, it is referred to, at this stage, because the suicide attempt and the comments that were made to police and ambulance officers at that time is consistent with the feeling in Jack Colley that if he had acted earlier, in pulling his brother away, Mr Cameron may still be alive. A thought that, no doubt, will haunt Jack Colley for all or most of his life. It is, however, not inconsistent with the version of events given by Jack Colley and the facts found by the Court.

26 Lastly, on the objective circumstances of the offence and the role of Jack Colley in it, the medical evidence seems to indicate that the deceased, Mr Cameron, did not die immediately from the stomping injury. The stomping injury would have rendered him unconscious and death would have occurred up to two hours after the injuries were sustained. It seems that, had the deceased received appropriate medical attention, he may have survived the bashing.

27 The Court has heard victim impact statements from Mr Cameron’s mother, Mr Cameron’s father, Mr Cameron’s brother, and Mr Cameron’s two sisters. To some extent I have dealt with their content already. The Court expresses its gratitude for the statements that were made and reiterates the sentiments already expressed relating to the trauma and sorrow that would be felt by all of them. I extend my condolences to them.

28 One other matter requires mention. There is evidence before the Court that Mr Cameron bashed Ms Colley and was a local drug dealer. It is unnecessary for the Court to make findings in this regard, because Mr Cameron is not here to defend himself and the objective facts, as distinct from the opinion of Jack Colley, are not directly relevant to the offence with which Mr Jack Colley has been convicted. However, some comment should be made. It is for the courts to mete out justice. It is not for individual members of society to take justice in their own hands and seek to impose retribution for conduct that they consider unacceptable. If Mr Cameron were to have bashed Ms Colley, then that is a matter that should have been dealt with by the courts. Likewise, if he were a drug dealer, that too is a matter that should be dealt with by the courts. Neither offences, if they were to have been committed, justify Jack Colley or Brendan Colley bashing Mr Cameron. Nothing justifies his death.

29 Jack Colley, who was born on 14 June 1990, was just over 18 at the time of the offence. He is now 20 and will turn 21 in June of next year. His brother, Brendan, was 26 at the time of the offence.

30 As previously stated, Jack Colley did not live with his brother; the latter lived in Casino. But his older brother would have had a significant impact and effect on Jack’s behaviour.

31 Jack Colley has no other criminal record and is not known to the police for any negative behaviour, apart from the offence for which he has now been convicted. The investigating officer, Detective Sergeant Ehsmann, who had lived in Inverell for just under 10 years, gave evidence at the trial that he had known the Colley family and had known Jack Colley for almost all of that time.

32 Jack Colley had never come to the attention of police in any negative way. He had a reputation inconsistent with the occasioning of violence. He has no criminal history. Jack Colley went to school in Inverell and, according to the investigating officer, had been involved in community activities in the area, including a pipe band and other activities.

33 It is most unusual, albeit reflective of a local rural area, that the investigating officer would attest to the good character of the person at that time charged with such a serious offence. Others have given like evidence.

34 References have been given by Reverend Burke of the local Presbyterian Church of Jack Colley’s good character, his charitable activities including volunteering for community work or maintaining the church and its grounds. He has also helped out local church members either moving or collecting and delivering furniture for the Op Shop and the like. Jack Colley has been involved in Bible study and is described as having a “positive personality … [with a] willingness to be involved and help out whenever possible or when needed”. He works part-time or casually in the local area and has a good reputation in all other respects.

35 Evidence of his good character was also given by Mr Smith, previously a police sergeant who had been in the police force for over 27½ years. He gave evidence because of his association with Jack Colley in the pipe band and he has known him since he was approximately 12 years of age. He attested to the fact that he had never been, to his knowledge, aggressive towards anyone and that he had been particularly responsible in teaching and looking after junior members of the band, ensuring they did not get into trouble. Former Sergeant Smith assessed Jack Colley as being amongst “the highest of those young people that I have encountered”.

36 This evidence was adduced at the trial and was the subject of cross-examination. It must be said that Mr Smith had never seen Jack Colley drunk, which is a two-edged sword. Given Mr Smith’s significant history as a police officer in the area, one can infer that Jack Colley’s drunkenness is out of character, but also, as was clear from the cross-examination, his drunkenness may well have affected his conduct. Drunkenness is not an excuse for criminal behaviour.

37 Character evidence was given at trial also by the former principal of Jack Colley’s high school which was in or to the same effect as other evidence. The only additional matter which is noteworthy was the fundraising activities undertaken by Jack Colley to help out others who were in need. Documentary evidence at trial and on the sentence hearing were provided as to Jack Colley’s good character. That evidence came from the Mayor of Inverell, and the NSW Rural Fire Service.

38 Jack Colley has already served 6 months in gaol, prior to being granted bail. He has been on bail since that time and remains on it at the time of sentencing. His bail conditions involved a curfew and prevented him from leaving Yamba. I will allow some small amount for the supervision and conditions of bail for over 20 months, but no more than 1 or 2 months of any mandatory period of imprisonment, and nothing in the overall sentence.

39 While there is some evidence of mental health issues in Mr Colley’s family, it seems that he is not affected by it. He is not a user of illegal drugs and, while his alcohol consumption commenced at an early age (around 15), it was mostly in company with members of his family at family functions. He commenced some episodes of heavy drinking at about the age of 18 when he was permitted to go to the local hotel after work. He reports no bad hangovers or other episodes of disturbed behaviour or criminal conduct while drinking.

40 Jack Colley is the youngest of four children and was brought up in Inverell. His mother died when he was an infant. At the time he was told it was a heart attack, but now believes it may have been a complication arising from heroin use. He was brought up by his father and his paternal grandmother and, then, largely by his grandparents alone.

41 At the time of the assessment by Dr Olav Nielssen, psychiatrist, Jack Colley was living in Yamba with his pregnant girlfriend. Dr Nielssen diagnosed Jack Colley as suffering from adjustment disorder with depressed mood, which disorder is in partial remission and also from alcohol abuse disorder, also in remission. The major diagnosis of adjustment disorder is made on the basis of the history of depression following the events in question and the absence of any pre-existing depressive illness.

42 Jack Colley has had, since his participation in the events leading to the death of Mr Cameron, pervasive depression, withdrawal from company, interrupted sleep, loss of appetite and weight, lack of energy, guilty ruminations, thoughts of suicide and, as previously stated, a suicide attempt which was effected by an overdose of medication. His symptoms were treated by anti-depressant medication and have resulted in two admissions to hospital because of suicidal behaviour. Dr Nielssen opined that it is in partial remission on the basis of Jack Colley’s demeanour at his interview and his account of feeling better in the weeks prior to the interview.

43 Otherwise there is no history of any kind of developmental disorder, serious brain injury or past episodes of psychotic illness or mood disorder. Jack Colley expressed, and continues to express, a high level of remorse for the consequences of his actions and, it seems, that Dr Nielssen has no doubt that his depressed state appears to be linked to his distress over his role in Mr Cameron’s death.

44 It is a trite proposition, which I will nevertheless repeat, lest it be thought I am unmindful of it, that sentencing for a State offence, such as manslaughter, is governed by the Crimes (Sentencing Procedure) Act 1999 and the purpose established by that statute for which a sentence is imposed are punishment, specific and general deterrence, protection of the community, the promotion of rehabilitation, the imparting to the offender of accountability for his or her actions, denouncement of the conduct, and recognition of the harm done to the victim and the community (section 3A): see also Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 476-477:

“The purposes [of sentencing] overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

45 As earlier stated, Jack Colley was just over 18 years of age at the time of the offence. If he were to have been 5 months younger, the Court would be required to sentence under the regime established by the Children (Criminal Proceedings) Act 1987, s 6 of which sets out the criteria to which regard must be had in exercising, inter alia, the sentencing functions for minors.

46 But Jack Colley is not and was not a minor and the regime applicable to him is that contained in the Crimes (Sentencing Procedure) Act. However, when sentencing an 18 year old (Jack Colley’s age was 18 years and 4 months on the date of the offence), his youth should be taken into account, except to the extent that he is acting as a mature adult.

47 There is no bright line that applies to sentencing someone just under or just over 18 years of age. I reiterate my sentiments in MJ v R, CPD v R [2010] NSWCCA 52, in which I said:

“[70] Further to the foregoing, I confirm the comments made by me in R v LNT [2005] NSWCCA 307 (with whom Simpson and Johnson JJ agreed) as to the principles to be adopted on the sentencing of young offenders. The Children (Criminal Proceedings) Act 1987 applied to minors and establishes a different regime than for adults. Nevertheless, a person who is 17½ years of age cannot be expected to be treated significantly differently from his co-offender who has turned 18. This does not mean that youth, who are not minors, are not entitled to an assessment of sentence, that takes into account their youth and immaturity: see LNT , supra, at [32] and following, and the cases cited therein.

[71] Chronological age of a young offender is not solely the determining factor in deciding how much weight should be attributed to general deterrence, as distinct from the other factors, in assessing an appropriate sentence. Regard must be had to the mental state and circumstances of the offender at the time of the offending: R v AN [2005] NSWCCA 239, per Howie J, with whom James J and I agreed, at [57]. Likewise, the violence of the offence, of itself, does not necessarily establish that the juvenile is acting ‘as an adult’. In sentencing, juveniles (including minors), who act as an adult would, the function of the courts requires deterrence and retribution and they remain, or become, more significant elements in sentencing the youth: R v AN , supra, at [53], citing R v Bus (Court of Criminal Appeal, 3 November 1995, unreported). The test, in those circumstances, is whether the youth has conducted himself or herself in a way that an adult would, and that requires an assessment of the maturity and conduct, not only the degree of violence and the gravity of the offence.”

48 In BP v R [2010] NSWCCA 159, Hodgson JA said:

“[3] The relevance of the youth of an offender to sentencing has been extensively discussed in many cases, including KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 (referred to by Johnson J) and cases referred to in that case. I accept the principles stated in KT at [22] – [26] (quoted by Johnson J at par [74] of his judgment). However, I wish to make three points concerning these principles.

[4] First, statements that, in relation to young offenders, principles of retribution may be of less significance and considerations of rehabilitation may be of more significance, may tend to obscure the point that even in relation to retribution the youth of an offender may be a mitigating circumstance. In my understanding, considerations of retribution direct attention to what the offender deserves; and in my opinion, where emotional immaturity or a young person’s less-than-fully-developed capacity to control impulsive behaviour contributes to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36].

[5] Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth diminishes the closer the offender approaches the age of maturity, and that a ‘ child offender ’ of almost 18 years cannot expect to be treated substantially differently from an offender who is just over 18 years of age, it does not follow that the age of maturity is 18 (albeit that for certain purposes the law does draw a line there: Children (Criminal Proceedings) Act 1987). In my understanding, emotional maturity and impulse control develop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006) 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime.

[6] Third, I do not think courts should be over-ready to discount the relevance of an offender’s youth on the basis that the offender has engaged in adult behaviour or acted as an adult. In the present case, the offence is a very serious one; but it did not involve significant planning or reflection, or any other indicia of mature decision-making. The applicant was 16 years old, and in my opinion the circumstances of the offence suggest rather that emotional immaturity and less-than-fully-developed capacity to control impulses were likely to be contributing factors.”

49 It is now well accepted, and documented in innumerable medical studies, that impulse control in the brain develops and reaches maturity at or after 21 years of age.

50 This offence was not planned. It was the result of an agreement between Jack and Brendan Colley, reached on the spur of the moment, on seeing and hearing first-hand from their sister of the alleged assault on her. Jack Colley was plainly influenced by his significantly older brother who was the major participant in the offence.

51 I give greater weight to rehabilitation and reform than I would if Jack Colley were over 21 years of age. I also give less significance, than would otherwise be appropriate, to the considerations of general deterrence and the principles of retribution: R v GDP (1991) 53 A Crim R 112 at 115-116; KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 at [22]-[23]. At the same time, these considerations are relevant and, in the case of a serious crime such as this, of significance.

52 The Pre-Sentence Report (Exhibit A on Sentence), after referring to Jack Colley’s difficult upbringing, caused, in part, by his parents’ substance abuse, refers to the support of his grandparents, who were largely responsible for his upbringing after the death of his mother. His risk of re-offending is low and would require medium-low level intervention, but that would include psychological counselling and alcohol counselling. Jack Colley was assessed as suitable for a community service order and for a bond, if the Court were minded to impose a non-custodial sentence.

53 The circumstances of Jack Colley are extraordinary, and certainly satisfy the test for special circumstances under s 44 of the Crimes (Sentencing Procedure) Act. These special circumstances include that this is Jack Colley’s first offence; his first time in prison (not however to double count the effect of the first offence); the risk of suicide and vulnerability, evidenced by past behaviour; and the need for continued rehabilitation in the community, including psychological counselling and programs targeting anger management and/or violent offending.

54 Jack Colley’s youth is a factor going to special circumstances under the Crimes (Sentencing Procedure) Act, but care must be taken not to double count this effect, which is taken into account in fixing the sentence. His assistance to and treatment of, young adolescents, to which former Sergeant Smith attested, is a factor to be taken into account in favour of special circumstances for the purpose of the statutory provision. Under no circumstances, given Jack Colley’s lack of criminal history; his non-participation in the occasioning of injury; the risk to his psychiatric and physical well-being; his youth (even now); and his general good character; should Jack Colley spend any more time than is absolutely essential in prison, and then only in circumstances that accommodate his extreme vulnerability and his otherwise exemplary non-violent character.

55 Notwithstanding the foregoing, the Court’s view is that a custodial sentence is the only appropriate sentence and that the sentence should be more than 2 years, thereby excluding a suspended sentence.

56 The principles of parity must be applied. Like co-offenders should be treated alike, with any disparity being based on a rational basis: Postiglione v R [1997] HCA 26; (1997) 189 CLR 295; Jimmy v Regina [2010] NSWCCA 60; (2010) 269 ALR 115. Jack Colley’s brother was sentenced to imprisonment for 7 years and 2 months, after allowing 20% for the plea of guilty. The proper comparison is with 9 years’ imprisonment.

57 But I reject the Crown contention that Jack Colley is “at least as culpable as Brendan”. The proposition that “but for” the role of Jack Colley in the offence, it could not have been committed does not withstand scrutiny.

58 Brendan Colley could have obtained Mr Cameron’s address from his sister, or someone else. Indeed, Brendan Colley could have obtained the address from Jack, without Jack being party to an agreement to hurt or bash Mr Cameron.

59 For the reasons already given, the Court takes the view that Jack Colley’s role in the offence was significantly less than his brother’s role. I accept there are aggravating features. The offence was committed in Mr Cameron’s home. Given that liability arises only from a joint criminal enterprise, that the offence was committed in company is an element of the offence. But the issue was ultimately put to the jury by the Court on the basis that Jack Colley was involved in the agreement with his brother and a reasonable person, in the position of Jack Colley, would, in the circumstances, have contemplated that the agreed conduct exposed Mr Cameron to a risk of serious injury.

60 The evidence in this case does not allow a finding, beyond reasonable doubt, that Jack Colley actually contemplated such a risk, and his role in pulling his brother away shows, more than anything, that he did not intend serious injury. His non-participation in any previous altercation points to his lack of appreciation of the consequences. I have already mentioned the lack of planning, the influence of his older brother, some degree of provocation, the lack of a criminal record, unlikely re-offending, good prospects of rehabilitation, the genuine remorse and other mitigating factors.

61 Sentencing statistics are less useful in manslaughter cases than most others, but those statistics show that, in the case of 18-20 year olds, 26% of first offenders do not have imposed on them full-time custodial sentences. Even in respect to those with one prior offence, 34% are not sentenced to full-time imprisonment. But in each case, the sample is very small. I take account of the 6 months’ imprisonment already served by backdating the commencement date of the offence, and allow two months off the non-parole period to account for the conditions of bail, which were a form of supervised detention in an area.

62 Mr Jack Colley, you are convicted of manslaughter in relation to the death of Stephen Cameron on 4 October 2008.

I sentence you to imprisonment for a non-parole period of 16 months, commencing 14 June 2010 and expiring on 13 October 2011, with a balance of term of further imprisonment of 3 years and 2 months, expiring on 13 December 2014.

Your overall sentence is a term of imprisonment of 4 years and 6 months and you are first eligible for parole on 13 October 2011.

I direct that the prisoner be assessed forthwith, and, for the reasons herein associated with risk and the need for family support, recommend that Jack Colley be classified as a minimum security prisoner (classification C2 or lower) and be accommodated at Glen Innes.

I direct that a copy of Dr Nielssen’s Report (Ex S1) be attached to these orders and provided to the Department of Corrective Services.

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