R v King; R v Bugmy; R v CJ

[2006] NSWSC 161

CITATION:	R v King; R v Bugmy; R v CJ [2006] NSWSC 161
HEARING DATE(S):	02/11/05, 07/11/05, 09/11/05, 10/11/05, 14/11/05, 15/11/05, 16/11/05, 18/11/05, 21/11/05, 22/11/05, 23/11/05, 24/11/05, 28/11/05, 29/11/05, 30/11/05, 01/12/05, 05/12/05, 06/12/05, 07/12/05, 09/12/05, 12/12/05, 13/12/05, 27/02/06, 01/03/06, 02/03/06
JUDGMENT DATE :	17 March 2006
JUDGMENT OF:	Buddin J
DECISION:	1. The offender CJ is sentenced to a non-parole period of 2 years and 8 months to date from 31 March 2004 and to expire on 30 November 2006 and a total sentence of 4 years and 4 months to date from 31 March 2004 and to expire on 30 July 2008. The whole of the non-parole period is to be served in a detention centre. The offender is eligible for release on parole on 30 November 2006. 2. The offender Malcolm King is sentenced to a non-parole period of 3 years and 8 months to commence on 28 March 2004 and to expire on 27 November 2007 and a total sentence of 6 years to commence on 28 March 2004 and to expire on 27 March 2010. The offender is eligible for release on parole on 27 November 2007. 3. The offender Timothy Bugmy is sentenced to a non-parole period of 4 years and 4 months to commence on 28 March 2004 and to expire on 27 July 2008 and a total sentence of 7 years and 6 months to commence on 28 March 2004 and to expire on 27 September 2011. The offender is eligible for release on parole on 27 July 2008.
CATCHWORDS:	Sentence - manslaughter - joint criminal enterprise involving an unlawful and dangerous act or acts - significant background history to commission of offence - pleas of guilty entered by three offenders at first reasonable opportunity albeit after trial had commenced - need to impose different sentences given the disparate circumstances of the offenders
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Postiglione v The Queen (1996-97) 189 CLR 295 R v Adamson (2002) 132 A Crim R 511 R v AEM (Snr) & Ors [2002] NSWCCA 58 R v Blacklidge (CCA, 12 December 1995, unreported) R v Blair (2005) 152 A Crim R 462 R v Cameron (2002) 187 ALR 65 R v Dib [2003] NSWCCA 117 R v Engert (1995) 84 A Crim R 67 R v Fernando (1992) 76 A Crim R 58 R v Harmouche [2005] NSWCCA 398 R v Hearne (2001) 124 A Crim R 451 R v Hill (1980) 3 A Crim R 397 R v MA (2004) 145 A Crim R 434 R v MD, BM, NA and JT [2005] NSWCCA 342 R v McDonald (CCA, 12 December 1995, unreported R v Previtera (1997) 94 A Crim R 76 R v Simpson (2001) 53 NSWLR 704 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Troja (CCA, 16 July 1991, unreported R v Wickham [2004] NSWCCA 193 R v Voss [2003] NSWCCA 182 Veen v The Queen (No 2) (1988) 164 CLR 465
PARTIES:	Regina Malcolm Edward King Timothy John Bugmy CJ
FILE NUMBER(S):	SC 2005/252; 2005/254; 2005/297
COUNSEL:	P Miller/S Huggett (Crown) M Austin (Offender King) W Terracini SC (Offender Bugmy) D Yehia (Offender CJ)
SOLICITORS:	S Kavanagh (Crown) Nikola Velcic & Associates (Offender King) Nick Boyden Lawyers (Offender Bugmy) Nicolas Moir & Associates (Offender CJ)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BUDDIN J

FRIDAY 17 MARCH 2006

2005/252 - REGINA v MALCOLM EDWARD KING
2005/254 - REGINA v TIMOTHY JOHN BUGMY
2005/297 - REGINA v CJ

REMARKS ON SENTENCE

1 HIS HONOUR: The offenders stand for sentence in respect of their involvement in an incident in Wilcannia on 28 March 2004 which culminated in the death of a man on 4 April 2004. Malcolm King, Timothy Bugmy and a juvenile, whom I shall refer to as CJ, are to be sentenced following their pleas of guilty to manslaughter. The offence attracts a maximum penalty of 25 years imprisonment. Two other juveniles, whom I shall refer to as DW and KW, pleaded guilty to affray and have already been sentenced.

2 Originally Malcolm King, Timothy Bugmy, CJ, DW, KW and two other juveniles, whom I shall refer to as MK and EH, were each charged with murder. In due course that charge in respect of DW, KW, MK and EH was “no-billed”. They were each then arraigned upon a charge of having caused the victim’s death in circumstances amounting to manslaughter. A jury was duly empanelled to hear the trial.

3 After the trial had been in progress for several weeks, the Crown sought to present a fresh indictment which contained the charges to which the five offenders then entered the pleas to which I have just referred. The Crown also announced that proceedings in respect of the remaining two accused, namely MK and EH, were to be discontinued. MK and EH were then discharged.

The factual background

4 A statement of facts was tendered by the Crown without objection. It is agreed that it provides the factual background against which I should proceed to sentence each of the offenders. It is, subject to minor modifications, in the following terms:

On Sunday 28 March 2004 each of the offenders were either living in or visiting the town of Wilcannia, a small country town with a population of about 800, the majority being Aboriginal persons. Also living in Wilcannia was the deceased, Lewis Douglas Jones (“Doolan”) who resided with his wife and children.
In the months prior to March 2004, considerable animosity had developed between 2 family groups living in the town. On the one hand were the Bugmy and King group and on the other hand were the Jones and Whyman group.
Members from both groups lived relatively close to one another in houses bordering the intersection of Hood and Byrnes Street, Wilcannia. All of the offenders were associated with the Bugmy/King group whilst the deceased and his family were associated with the Jones/Whyman group.
On 28 March 2004 police received complaints from members of both groups. Those complaints alleged firstly that members of the deceased’s family had been assaulted by members of the Bugmy/King group and secondly that the partner of the offender Malcolm King had been threatened by members of the deceased’s family.
As a result of these complaints and what appeared to be increasing tensions between the groups, police from Wilcannia went to the area of the intersection of Hood and Byrnes Streets where the Bugmy/King and Whyman houses were located.
Upon arrival, police observed that persons from both groups were armed with weapons such as sticks, branches and iron bars and that items had been thrown backwards and forwards between the homes. The offenders were among the group in the vicinity of the Bugmy/King house. Accordingly, police attempted to usher members of the Jones/Whyman group back into the Whyman yard in an effort to calm the situation down.
As this was happening the deceased was standing alone on the north eastern corner of the intersection. A group of male persons armed with weapons such as sticks, tree branches and/or iron bars then ran towards the deceased from the direction of the Bugmy/King house which was located close to the intersection on the opposite corner.
The offender CJ picked up a rock and threw it at the deceased. The offenders Malcolm King and Timothy Bugmy were both armed with unknown items which were used to assault the deceased. At some stage the deceased collapsed to the pavement. The offenders DW and KW then commenced to behave in a menacing and threatening way towards the deceased by yelling abuse at him and waving their arms around in a threatening manner.
At the time the offenders Malcolm King, Timothy Bugmy and CJ were acting in a joint criminal enterprise to assault and injure the deceased.
Members from the deceased’s family who were present at the Whyman house and the police, who were also still present at the Whyman house, went to the deceased’s aid. Observed on the ground beside the deceased was his pocket knife which was in an open position. The deceased was assisted over to the Whyman house and an ambulance was called.
The deceased was conveyed to Wilcannia Hospital suffering a deep wound to his head. Later that evening he was transferred to Broken Hill Hospital and then to Royal Adelaide Hospital. Between 28 – 29 March 2004 the deceased was in intensive care having sustained compression and swelling of his brain which was caused by a fracture to the skull.
On 4 April 2004 the deceased died as a result of his head injuries. A post mortem examination found that the cause of death was the consequence of blunt force trauma. Other injuries observed at the time of the post mortem examination were an area of bruising to the right lower forehead region and scalp, bruising to the left hand side of the deceased’s left forearm and bruising to the right elbow.

5 An additional set of agreed facts was admitted in relation to the offender CJ who was the only offender to have spoken to the police concerning the incident. It is in the following terms:

On Wednesday 31 March 2004 the offender voluntarily attended the Broken Hill police station accompanied by his aunt, SC. Investigating police had informed his family in Wilcannia and Broken Hill that they were looking for the offender and that it was in his interests to come in to the police station. He attended the station to give police his version of what had occurred on 28 March 2004.
He told police that he was standing at the corner of Byrnes and Hood Street with some other children and adults. He saw the deceased also in the vicinity of that intersection. The offender told police that he saw the deceased holding a knife. He said it was pretty long, with a black handle and a big blade. He said it was a bit shorter than a long neck beer bottle. The offender admitted to police that he threw a piece of mud brick at the deceased and saw the deceased fall to the ground. He claimed to police that he acted alone and in self defence.
The offender told police that both groups were throwing items at each other including pieces of mud brick. The mud brick he threw at the deceased was one of those thrown at the group he was in by the Jones/Whyman group.
The offender told the police that he saw the mud brick hit the deceased and that it “evaporated…just broke”.

6 To that material may be added the evidence of a forensic pathologist, Dr Peter Ellis who provided a report at the request of the Crown. He also gave evidence during the course of the sentencing hearing. Dr Cala, who conducted the post-mortem, gave evidence during the course of the trial. The Crown acknowledges, given the state of the expert evidence, that it cannot establish to the requisite standard that the fatal injury was caused by more than one blow. Accordingly, I will proceed to sentence the offenders upon the basis that there was only one fatal blow, albeit that the deceased sustained other blows of a non-fatal nature.

7 I have also had regard, in determining the relevant facts, to those parts of the trial transcript to which my attention has been specifically drawn. Other than references to that material I will, as I earlier observed, sentence the offenders in accordance with the agreed statement of facts.

8 The statement of facts has been carefully crafted. It is elliptical at least so far as the critical parts of the incident are concerned. For example, the facts are silent as to precisely which act it was that caused the death of the deceased. Similarly they do not identify the person who was responsible for the fatal act. Indeed none of the injuries which the deceased sustained are attributed to any particular individual. Nor it seems can it be stated with any certainty what precipitated the events that led to the deceased being attacked. These observations are not intended however to be a criticism of the parties. I am prepared to accept that the available evidence simply does not permit of any greater precision.

9 Accordingly, it is difficult, if not impossible, to determine what role each of the offenders performed in causing the death of the deceased. All that can be said with any confidence is that the offenders at the relevant time were acting pursuant to a joint criminal enterprise to assault and injure the deceased (that is, their conduct constituted an unlawful and dangerous act or acts) and that in some undefined way their act or acts substantially contributed to his death. I observe that there is nothing to suggest that any of the present offenders performed any act upon or towards the deceased after he fell to the ground.

10 Moreover, it is important to recognise that the conduct of the offenders in contributing to the fatal incident should be seen in the context of the volatile atmosphere which existed over an extended period between the two groups of families in Wilcannia.

11 Some further details of that dispute appear in a pre-sentence report which was prepared in respect of the offender, Timothy Bugmy. The following extract is taken from that report:

There appear to be two social groups, relevant to the offence, centring around the town of Wilcannia, loosely connected by family ties, and who have an intractable enmity towards each other. The victim, their family and associates comprise one group, the offender, his family and associates comprise the other.
There is some familial and social overlap in these groups, the offender noting that the victim was his cousin, “…my father’s sister’s son…”, and that they were often on good terms, participating in sporting events together and so on.
Nevertheless, an interminable antagonism between the two groups appears to have smouldered, often igniting into a warlike hostility, resulting in events where the two adversarial groups would muster themselves and enlist the support of others to their cause as they were able. For example, witness statements and interviews with the offender revealed that verbal abuse, assaults and missile throwing were commonplace, resulting in incessant approaches to the Court and Police to issue and enforce Apprehended Violence Orders.
These clashes, fuelled by alcohol abuse and starting a chain reaction of reprisals, appear to have escalated the growing animosity between the two groups, culminating in the offence currently before the Court.

12 In addition to that history the facts also disclose that various incidents occurred during the course of the day preceding the fatal act which served to heighten the tension in the town. The actions of the offenders are thus to be assessed in the context of a melee in which the members of the opposing groups were armed with weapons and were behaving aggressively towards one another. There can be no doubt that the Bugmy/King house was subject to attack from members of the Jones/Whyman family. Constable West gave evidence, for example, that he had observed oily stains outside the Bugmy house which were consistent with a Molotov cocktail having been thrown. Moreover, he located a number of weapons in and around the Jones/Whyman premises.

13 It can reasonably be inferred that each of the adult offenders was considerably agitated by the events which had occurred that day. I have also had regard to what CJ said in his conversation with police concerning his actions and his state of mind at the time. That is to say, that he picked up a mud brick which had been thrown by the other group and threw it from a position which the evidence shows was across the street from the deceased.

14 It scarcely needs to be said that it is regrettable that no-one did, or seemingly was able to do, anything constructive to prevent this feud from ending in tragedy. It is equally disturbing that the incident occurred notwithstanding the presence at the scene of police officers. The fact that there was no intervention at an early stage to prevent such a tragedy is perhaps symptomatic of an isolated town in which there are few services and resources available.

15 I have received a victim impact statement from the deceased’s widow and daughter. His widow states that she was particularly traumatised by having witnessed the attack upon her husband. The feelings which the deceased’s family express and the sense of loss which they have suffered are entirely understandable. It is impossible to adequately summarise that sense of loss in a few sentences and to do so, or to attempt to do so, would detract from the contents of those statements. Clearly no sentence which any court could impose can ever begin to make good that loss. I am aware of course that the effect of Mr Jones’ death upon his relatives is not, for present purposes, a relevant consideration: see R v Previtera (1997) 94 A Crim R 76. Nevertheless the court expresses its profound sympathy to all those who have suffered, and who continue to suffer, by reason of his death.

Subjective features

16 As I have observed I have been provided with pre-sentence reports in respect of the adult offenders which sets out relevant background information about them. I have also received a report from a psychologist, Dr John Taylor, in respect of the offender Malcolm King.

Malcolm King

17 The offender Malcolm King was born on 20 March 1967. He was thus aged 36 at the time of the current offence and is now aged 38. He grew up in Wilcannia as one of five siblings in a “close knit” family. His upbringing was unremarkable although he seems to have been something of a loner as a child, a fact that may be explained by his having suffered from Attention Deficit Disorder. His mother was an active Christian all her life. She played a prominent role in local Aboriginal affairs and was the principal of the Mission pre-school where she worked for over 30 years. His father was employed all his adult life with the Department of Main Roads (now the RTA). His parents, who were married for 40 years, were well respected in the community and appeared to have had a positive influence upon the offender as he was growing up. Somewhat unusually in that community their home was an “alcohol-free zone”. Smoking was also prohibited in the home.

18 After leaving school in Year 9 the offender obtained various TAFE qualifications. He has held various positions of employment which include having worked on a part-time basis as a youth worker and as a Juvenile Justice officer in Wilcannia. For a period of time he taught a trade course on a part-time basis at Wilcannia TAFE. He has also worked at the Land Council helping to establish the Community Development Employment Program (CDEP) where he was employed for a period of 8 or 9 years. He has also done labouring jobs and worked as the town’s gravedigger. The offender has also been active in the community’s sporting activities.

19 The offender has been in a relationship with his wife for 23 years and together they have had five children. The offender is said to enjoy a good relationship with his children, especially his sons. As a result of this incident the offender’s family has had to move to Broken Hill, although the offender hopes eventually to return to Wilcannia, which he regards as his home.

20 The offender recognises that at one stage of his life he was a binge drinker. Although he has abstained from consuming alcohol since 1999 it appears that he has continued to use marijuana on an occasional basis.

21 The offender has been progressing well in custody and has not been charged with any misconduct offences. His family continues to support him and have visited him on a regular basis even though he has, in recent times, been held in an institution in Sydney. For sometime he has been held at Parklea where he is the Koori delegate. The author of the pre-sentence report explains what that position entails:

The Koori delegate is a person who is respected by Koori inmates, and who has the ability to support the interests of Koori inmates, through negotiation and liaison with prison staff. It is therefore a position of trust within the prison. …
The Welfare Officer, in an interview, confirmed that Mr King is still the Koori delegate at Parklea. Mr King stated that he was working on a program linking Koori inmates with Justice Health, with the Alcohol and Other Drug worker. The Alcohol and Other Drug worker, in an interview, confirmed that the offender had a substantial role in organising this program with her. She described the offender’s work efforts as “diligent and committed”, stating that “he has gone out of his way for me and for the other inmates”, he has “taken his role as delegate very seriously”, and that, despite the “obstacles that are constantly present”, “he has carried himself with dignity and professionalism”. The Counsellor also stated that the offender commands respect from other inmates, as he is known by inmates who live in the Broken Hill area as an individual who looks after those who are close to him, and is viewed by Koori inmates as being an Elder.

A Correctional Officer who works in Mr King’s unit, in an interview, described the offender’s attitude and behaviour as “excellent”, stating that he never has any conflict with other inmates. The Officer stated that Mr King has a mature attitude and is a good example to other inmates.

22 Initially at least the offender was held in segregation whilst he was in Broken Hill and Bathurst gaols, apparently upon the basis that threats had been issued against him and his co-offender Bugmy by the victim’s sons who were in those institutions at the same time. This had the effect of restricting his access to various educational programs.

23 There is another issue arising from the offender’s custodial situation which warrants consideration. It is described in the following terms by the author of the pre-sentence report:

Mr King made various applications to visit his mother who became seriously ill after an initial stroke in February 2005, then again on 28th October when she suffered a second stroke. Despite an urgent request from the offender’s solicitors, his application to attend his mother’s hospital bed and funeral were denied. A report dated 31st October 2005 stated that, although there were no relatives of the victim housed at Broken Hill at the time, the family feud and “hostility in the community” towards the offender and his family may cause problems for the offender’s partner.
In response, a letter from a community worker requesting information as to why the offender was not granted permission to attend his mother’s bedside and funeral (held on 11th November 2005) was referred to the Commissioner on 18th November 2005. A Departmental report dated 4th December 2005, in response to this, stated that local issues and association problems, the nature of the offence, and risk of being assaulted at Broken Hill were all factors in denying Mr King his request. The report also noted that, due to the seriousness of his mother’s condition, he may not have reached her bedside in time to see her.

24 Whatever be the merits of the situation, it is not difficult to appreciate how disconcerting it must have been for the offender not to be able to attend his mother’s bedside and funeral.

25 According to the author of the pre-sentence report, the offender “express[ed] sympathy for the victim and his sons”. Indeed, he said that he was “deeply sorry they lost their father”.

26 The offender said that he had “no problems” with the victim, whom he described as a “happy go lucky, harmless man” whom he respected. He said that they often talked when they were alone. He said that he would like at some stage to sit down and talk to the victim’s sons about the matter (although that desire does not extend to the victim’s daughters or his wife).

27 The offender King has a minor criminal record which for present purposes can effectively be put to one side. In 1980 when he was aged 13 he was expelled from school and committed to an institution for 3 months in respect of offences of assault, malicious injury, and serious alarm (which consisted of throwing bottles at police). That is the only previous occasion on which he has been subjected to a custodial order. In 1987 he was fined $100 in the Local Court for malicious injury. In 1987 and in 1988 offences of common assault and offensive behaviour were dealt with pursuant to s 556A of the Crimes Act (now s 10 of the Crimes (Sentencing Procedure) Act 1999). In 1991 he was sentenced to 200 hours of community service in respect of an offence of making a false statement in relation to a claim for social security benefits. In 1999 he was fined in the Local Court for being the owner of an attacking dog.

28 Mr Taylor administered a number of tests upon the offender, including his potential for recidivism. He reached the following conclusions about the offender:

Mr King provided a history of having been raised in a close and stable family environment in Wilcannia. He described having had some behavioural difficulties in his childhood and adolescence due to his Attention Deficit Disorder (ADD), and also because of conflicts with his peers. With regard to this latter factor he explained that he had difficulties because his home life was quite stable and “ respectable ” and that for this reason he had been teased and provoked by a number of his aboriginal peers who were living on an Aboriginal mission or in the Mallee district. With regard to his having had ADD he stated that he had counselling for this when he was younger. It is also likely that because of his ADD he was somewhat impulsive and aggressive during his adolescent and early teenage years. There is no indication from this assessment that he continues to have characteristics of ADD. Research indicates that in the majority of cases this condition abates by the late teenage years.
The stability that he had in his family life appears to have enabled him to lead a reasonably stable life himself. He has had a number of employment positions some of which have been significant in that he worked within the Department of Juvenile Justice and was also employed as a youth worker. Furthermore he reports that he has not had any extensive history of substance abuse. He said that he has not consumed alcohol since 1999 and has only ever used cannabis on an irregular basis. He said that he has not used other illegal drugs.
The results of the present assessment do not indicate that he has any personality disorder or emotional disturbance. There are no indications of any significant antisocial characteristics and he has a low predisposition to engage in substance abuse. There was a finding of his having mild anger pathology but he is not prone towards expressing feelings of anger in an impulsive or explosive manner. He is sensitive to the reactions of others which may evoke feelings of anger and he is inclined towards internalising these rather than expressing them precipitously.
Mr King stated that he has pleaded guilty to the manslaughter of Lewis Douglas Jones. He expressed considerable regret that the victim had died and stated that the victim had been his cousin. He also stated that he had a good relationship with the victim in the past. In relation to this he said “ he was a good bloke .. we have a lot in common”.
He is assessed as having a low moderate likelihood of recidivism. This opinion is based on actuarial analyses and clinical methods employed during the assessment. Because he is assessed as having a low moderate risk of recidivism few risk factors were identified. These results suggest that he has a very good likelihood of rehabilitation. He continues to have the support of his wife and he stated that he intends to gain employment following his release from prison. Since coming to jail he has undertaken courses in anger management and transforming conflict in an effort to gain further insight into his functioning.

Timothy Bugmy

29 The offender Timothy Bugmy was born on 15 March 1971. He was thus aged 33 at the time of the current offence and has now just turned 35. He was born and raised in Wilcannia. His father left the family home when he was aged 5. His relationship with his father thereafter remained difficult although they managed to effect something of a reconciliation prior to his father’s death last year.

30 The offender was raised by his mother and her partner. After he completed Year 10 at school he went to North

Queensland for about 6 months. There he obtained a job under the auspices of the CDEP involving the manufacture of aboriginal artefacts for sale to tourists. When funding for the program ran out he returned to Wilcannia. He has only been employed intermittently since then. Indeed, his most recent period of employment was 10 years ago when he worked for about 9 months as a part-time teacher’s assistant in Wilcannia until, once again, funding for the position ran out. His employment opportunities have been hampered, in part, because he is partially blind.

31 The offender’s life has been blighted by tragedy. When he was 18 his older sister was killed in a car accident. The offender apparently feels some responsibility for what occurred since he was the person who asked her to drive. In the same year one of his brothers committed suicide. In 1996 a close family friend also committed suicide and in 1998 his youngest brother did likewise. The offender remains close to his only remaining sibling, a brother.

32 The offender is in a de facto relationship which has lasted for 20 years and as a result of which he has two young children. Prior to the commission of this offence the offender had lived for a period of time in Broken Hill, although he still frequently returned to Wilcannia to fish and to visit family and friends.

33 The offender has been abusing alcohol since the age of 16. He also regularly used marijuana. At this stage it is worth referring to his criminal record which is extensive. It contains numerous entries for offences such as minor drug matters, hindering police, resisting arrest, behaving in an offensive manner or using offensive language, throwing missiles, malicious damage, custody of an offensive weapon and violent disorder. Those offences have invariably attracted pecuniary penalties or seen the offender placed upon a recognisance.

34 Of greater significance is the fact that the offender has many convictions for offences of violence, including offences of assault. On several occasions, for example, he has been convicted of assaulting police, in respect of which offences he has received short prison terms. In 1994 he was sentenced to 3 months imprisonment for malicious wounding. In 1995 he received a minimum term of 9 months imprisonment with an additional term of 3 months in respect of an offence of assault occasioning actual bodily harm. In the same year he was sentenced in the District Court to a minimum term of 2 years and 11 months with an additional term of 2 years for sexual intercourse without consent. In 1996 he received a term of 3 months imprisonment for further offences of assault. In 1998 he received a similar sentence for assaulting an officer in the execution of duty, an offence which led to his parole being revoked. In 2001 he was imprisoned for 8 months for two counts of common assault and in the same year he was sentenced to 3 years imprisonment with a non-parole period of 2 years for an offence of sexual intercourse without consent. It is a matter of aggravation that he was still on parole in respect of that offence when he committed the present offence.

35 It is apparent that almost without exception Mr Bugmy’s offences have been committed against the background of alcohol abuse. Indeed he conceded being moderately affected by alcohol at the time of the present offence. On some occasions on which he has offended his alcohol abuse has been compounded by the use of cannabis. He is reported to have been behaving in an acceptable fashion whilst in custody although on two occasions he has been detected with cannabis in his urine.

CJ

36 Pursuant to s 25 of the Children (Criminal Proceedings) Act1987, I have had made available to me a background report in respect of CJ. In addition a body of other material has been tendered on his behalf. It consists of affidavits from the offender himself and from his aunt DW, a letter from his father, a school report and a psychological report from Dr Christopher Lennings.

37 Set out below, subject to minor modifications, are the relevant parts of the offender’s affidavit:

I was born in Broken Hill on 28 May 1987 and grew up in Wilcannia. My mother is EW and my father is [DJ] . My mother and father did not live together and I was raised by my grandparents on my mother’s side.
I had some contact with my father when I was growing up. He is a Field Officer with the Western Aboriginal Legal Service and has worked with them for over 20 years. He lives at Menindee with his family. When I was growing up he used to come and take me fishing sometimes.
I lived with my mother and my grandparents. JW was my grandmother. She passed away some years ago. My mother always had a problem with drinking alcohol so I was really raised by my grandparents.
I went to school in Wilcannia until about 16. I left before I completed my year 10. I can read a little but not that good.
Things were a bit hard growing up. I started smoking marijuana when I was about 9 or 10 years old. My grandmother, J, used to smoke and there was always marijuana in the house. I used to get it from my grandmother. I also sniffed petrol for a while when I was about 14 but I stopped. I started drinking alcohol when I was 16, only a few months before I was locked up.
When my grandmother passed away I went to live with Uncle KW and his wife, aunty DW. KW is my mother’s brother. Mum used to drink a lot and I got sick of it so I went to live with my uncle and aunt. They are good people. They work and don’t drink too much. I went to live with them when I was about 14. Things were good there.
About three months before the 28 March 2004 I left KW’s place. I had an argument with his daughter. I don’t even remember what it was over now but I thought I should move out. That is when I went to live with uncle Malo, Malcolm King, and aunty Julie, Julie Bugmy.
Uncle Malo and aunty Julie did not drink and that was part of the reason I went to live with them. Even before I went to live there I used to spend time over at their place because their son Jack and I were real close and he is my second cousin. Aunty Julie and Uncle Malo were really good to me and did a lot for me. I love them very much.
After I went to live with Uncle Malo and aunty Julie the other side of my family turned against me. Brenda Riley and I are also related. Brenda’s mother and my father are brother and sister. I felt really bad after what happened to “Doolan” and I am very sorry for this death and the suffering his family is feeling.
While I have been in custody I have done some education but mostly woodcutting and painting. I paint Aboriginal art and I was doing that for some time in here but I can’t do it anymore because I have been in the art course for too long now and they need the places for other kids who are just coming in.
When I get out I want to get a job and continue with my painting. I want to play football too. Although I love my mother very much and all my other relatives, I want to live with DW and uncle KW. I still want to visit my mother but I can’t live with her because of the grog. My mother is getting a house at Balranald so I will be able to visit her.

38 As I have said, the offender’s aunt DW also provided an affidavit. She confirms that the offender lived with her family for a period of time as the offender’s mother was unable to look after him because of her problems with alcohol. DW also indicated her preparedness to have the offender live with her family, which has now moved to Albury, upon his release from custody. It appears that there may be employment available for him at Wandoo Aboriginal Nursery where her husband and other members of her family already work.

39 The offender’s father has provided a letter in which he promises to continue supporting his son. He says that he believes that it is in his son’s interests to go and live with DW’s family. The offender’s father expressed the view that his son has matured considerably since the offence. He says that “I know that the incident has caused grief in the community and I am also aware that [CJ] feels badly about what happened and how people have suffered”.

40 CJ was reported by his mother as having seen a psychiatrist when he was a child. He was diagnosed as suffering from either Attention Deficit Disorder or Attention Deficit Hyperactivity Disorder. He was prescribed medication but ceased taking it after three months because it did not “agree” with him. No other mental health issues have been reported since then.

41 The material before me establishes that CJ has been using his time in custody in a productive fashion. He has been attending school and has participated in various educational courses. He has shown a particular interest in the Aboriginal Arts and Cultural Practices program. He has developed his computer skills and recently gained first place in the computer graphics component of an Arts and Crafts course. He is described in the school report as being “a very creative student – [whose] teachers report him as interested and well behaved…He is a fine young man and a worthy student.”

42 Dr Lennings refers in his report to an incident which tends to suggest that the offender CJ is developing some maturity. The details of the incident are set out below:

I note that [CJ] comes from within a somewhat difficult extended family environment. For instance [CJ] did not tell me that his stepfather was murdered. He told me that his stepfather had died a couple of years ago but in fact [CJ’s] stepfather was murdered by one of [CJ’s] cousins. This cousin is visited by an aunt at the Detention Centre and this aunt also continues to visit [CJ], and it appears she is one of the main sources of family contact he currently has. Interestingly enough [CJ] was apparently under some influence from family members that he should exact some revenge on the cousin for having killed his stepfather. When the cousin turned up at the same Detention Centre as [CJ] a meeting with the two was brokered by the Detention Centre and the matter was settled amicably with [CJ] displaying no ongoing aggression or difficulties in his relations with this cousin. I am told that prior to the murder of his step-father, [CJ] had a good relationship with that cousin.

43 The author of the background report observes that CJ “now readily admits his responsibility for the offence and this indicates a level of maturity and some evidence of remorse for his actions”. The author also states that CJ “feels sorry” about the offence and its consequences. However, the author expressed concerns that the offender has displayed limited insight into his drug and alcohol abuse.

44 Dr Lennings made the following assessment of the offender:

[CJ] was assessed on the Wechsler Abbreviated Scale of Intelligence (WASI). The WASI is a fast but reliable measure of intelligence consisting of 4 sub-tests. Two each assessing ability in the verbal and non-verbal domains of intelligence. The Verbal domain is assessed by word knowledge and the capacity for abstract reasoning, whilst the non-verbal domain assesses visuo-spatial reasoning and visuo-motor ability. Verbal measures are generally more affected by education, cultural experiences and language familiarity than non-verbal tests.
His score on the WASI places him in the mentally retarded region, no better than the bottom 1% of the population. Verbal skills were particularly poor placing him no greater than the bottom 0.3% of the population but his non-verbal score was something of a strength for him although again they placed him only better than the bottom 2% of the population. Some caution needs to be exercised in interpreting these results.
Typically Aboriginal people and children have some difficulties in completing psychometric tests particularly if they do not have a strong history of achievement at school. [CJ] found it difficult at times to continue with the tests and appeared to get embarrassed with making mistakes and it is this kind of behaviour that may have had an impact upon his performance. [CJ] does reveal reasonable social competence when talking to him and it was Mr Dieter’s (a Juvenile Justice psychologist) perception that [CJ’s] functional capacity is somewhat higher than that indicated by his IQ.
[CJ] is a person of considerably low IQ and in addition to his scores on the IQ test, this is attested by his very poor academic performance and by his menial occupational levels since. He does, however, have reasonable socialised behaviours and compared to the average person in the Juvenile Detention Centre is functioning at a social level somewhat above those of his peers. He appears to have undertaken responsibility within his family as the older son particularly with a somewhat impaired mother, and also his capacity for assuming some level of domestic responsibility seems to have given him functional skills above that which would be anticipated on the basis of his assessed IQ. Nonetheless he remains a person whose IQ is low irrespective of the various observations of competence. …

[CJ] is a young Aboriginal man of low cognitive skill who nonetheless demonstrates a relatively surprisingly high socialisation skill. Despite having an IQ that falls into the mentally retarded range, his social competencies are better than that. However, his low IQ leaves him vulnerable to the influence of others, and, at the time of the offence, such vulnerability would have been even higher because of his age. …
He remains a young man with good pro-social skills, despite his crime. He presents as having appropriate remorse. His risk of repeat violent crime appears low.

Relevant sentencing considerations

45 I am required to have regard to the relevant statutory framework that pertains to the sentencing of offenders, and to the principles enunciated in the authorities which bear upon the issue. It is common ground that I must have regard to the purposes of sentencing which are set out in s 3A of the Crimes (Sentencing Procedure) Act.

46 The Court of Criminal Appeal in R v MA (2004) 145 A Crim R 434 characterised s 3A as being a codification and elaboration of the purposes of criminal punishment described by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465. In a passage which is particularly apposite to the present case, a majority of the court in Veen (No 2) said:

[S]entencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes 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 guide posts to the appropriate sentence but sometimes they point in different directions. (at 476)

47 In determining the appropriate sentence I must also have regard to the various aggravating factors set out in s 21A(2) of the Act. It is apparent from the concluding words of s 21A(1) that the list is not exhaustive. As long as I take into account those factors that are relevant and known it is not necessary, as I understand the situation, to deal seriatim with each matter which is identified. Suffice it to say that I have had regard to the statutory requirements to which I have just referred, and given due weight to the matters which I regard as being of particular relevance.

48 I must also weigh in the balance those matters upon which the offenders are entitled to rely in order to mitigate the otherwise appropriate penalty: s 21A(3) of the Crimes (Sentencing Procedure) Act.

49 As I have said, it is important to bear in mind the particular principles that inform the sentencing task in a case such as the present. The starting point so far as offenders who have pleaded guilty of manslaughter are concerned must be the fact that a human life has been taken. The community expects that human life will be protected by the law and that those who take it will be suitably punished: see R v Troja (CCA, 16 July 1991, unreported at 2) and R v McDonald (CCA, 12 December 1995, unreported). In R v Hill (1980) 3 A Crim R 397, Street CJ said:

It has been said that manslaughter, perhaps, beyond any other crime is protean. The circumstances leading to the felonious taking of human life being regarded as manslaughter rather than murder can vary infinitely, and it is not always easy to determine in any given case what should be done in the matter of sentence. At the start it should be recognised that the felonious taking of a human life is recognised both in the Crimes Act, 1900 and in the community at large as one of the most dreadful crimes in the criminal calendar. The courts have, however, over the decades gradually manifested a willingness to recognise factual contexts which provide some basis for understanding the human tragedies that can lead to the taking of a life. The manifestation of this humanitarian tendency is necessarily attended by the utmost caution. It can be seen to be constantly written in the decisions of the courts and in the enactments of the legislature that the taking of a human life is a grave action calling for a correspondingly grave measure of criminal justice being meted out to the guilty party.
In a case such as the present, where there is material justifying a degree of understanding and of sympathy towards the appellant, the task of sentencing is particularly difficult. It is necessary to evaluate the demands of the criminal justice system, the expectations of the community at large, the subjective circumstances of the person coming forward for criminal judgment and the interest of society in protecting itself and its members from criminal activity amounting, as in the present case, to the taking of a life. (at 402)

50 In R v Blacklidge (CCA, 12 December 1995, unreported) Gleeson CJ, with whom the other members of the Court agreed, said:

The crime of manslaughter comprehends all forms of punishable homicide other than murder (Crimes Act 1900, s18). For presently relevant purposes, the crime of murder is taken to have been committed where the act of the accused, causing death, was done with intent to kill or inflict grievous bodily harm, or with reckless indifference to human life. Some forms of manslaughter, such as that with which we are presently concerned, involve conduct which would amount to murder, except for the presence of some recognised mitigating circumstance. Other forms of manslaughter, sometimes referred to as “involuntary”, do not involve an intent to kill or inflict grievous bodily harm, or reckless indifference to human life. They may, for example, involve causing death by an unlawful and dangerous act.

It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases. Of all crimes, manslaughter throws up the greatest variety of circumstances affecting culpability. (at 3-4)

51 So far as each of the offenders is concerned, it is appropriate to have regard to the fact that the offence was committed in company: Crimes (Sentencing Procedure) Act, s 21A(2)(e). That is an important feature of the offence, for it seems inevitable that the victim would have been fearful and would have felt helpless in the face of an attack of the present kind. Nevertheless, it is necessary to have due regard to the fact that the liability of each offender arose precisely because his act or acts occurred as a result of his being in company with others, ie pursuant to a joint criminal enterprise. The offence also apparently involved the use of an item or items which could constitute a weapon or weapons: s 21A(2)(c). However, as I earlier observed the use to which that item or items was put during the attack, and the identity of the person who struck the fatal blow, is far from clear. Nor does the evidence disclose, so far as the adult offenders are concerned, the circumstances in which they acquired those items. In any event, the use of such an item in the context of a homicide is not of any great moment. To that list may be added, but only so far as the offender Bugmy is concerned, the fact that he has prior convictions and that he was on conditional liberty at the time: s 21A(2)(d) and (j).

52 The prior criminal history of the offender Bugmy can be properly characterized as demonstrating a “continuing attitude of disobedience to the law” or as revealing “the moral culpability of the offender”, in the sense in which those expressions were used by the High Court in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. That said, I remind myself that I must approach this aspect of the matter in the manner in which it has been interpreted in a line of cases including R v Wickham [2004] NSWCCA 193 and R v Blair (2005) 152 A Crim R 462.

53 In relation to mitigating factors within the meaning of s 21A(3), I am prepared to find that the offence was not “part of a planned or organised criminal activity”: s 21A(3)(b). With the exception of the offender Bugmy, none of the other offenders has a record (or any significant record) of previous convictions: s 21A(3)(e). Each of the offenders, apart from the offender Bugmy is entitled to be regarded as “a person of good character”: s 21A(3)(f). This is especially so in the case of CJ and it is to his credit that he should be so regarded, given his deprived background.

54 I am satisfied that each of the offenders, apart from the offender Bugmy has “good prospects of rehabilitation” and is unlikely to re-offend: s 21A(3)(g) and (h). Although the offender Bugmy’s prospects on the other hand appear somewhat dim, I am not prepared to conclude, given his plea of guilty and his age that they are non-existent, especially if he is prepared to address issues surrounding his dependency upon alcohol. Each offender is entitled to have his plea of guilty taken into account: s 21A(3)(k). I shall consider the significance of that matter shortly in a little more detail. The offender CJ in particular is also entitled to have weighed in his favour the fact that he has expressed remorse: s 21A(3)(i). I note that the offender King has expressed sympathy and that he has also experienced a sense of loss arising from the victim’s death. That cannot however be equated with the type of remorse which the offender CJ has demonstrated.

55 CJ is also entitled to have his youth taken into account: s 21A(3)(j). I will return to consider that matter in a little more detail in due course. Each offender is entitled to some consideration in light of the principles set out in R v Fernando (1992) 76 A Crim R 58 at 62-3.

56 Furthermore, in view of the evidence from Dr Lennings that the offender CJ falls into the “mentally retarded range” so far as his intellectual functioning is concerned, it is appropriate to give less weight to the principle of general deterrence than would otherwise be the case. That being so, I am prepared to find that the offender CJ was not “fully aware of the consequences of his actions” by reason of his impaired mental functioning at the time of the offence: Crimes (Sentencing Procedure) Act, s 21A(3)(j). See also R v Engert (1995) 84 A Crim R 67.

57 In assessing the appropriate discount to be extended to the offenders for their pleas of guilty, I have had regard to what was said by the Court of Criminal Appeal in R v Thomson & Houlton (2000) 49 NSWLR 383. Spigelman CJ (with whom the rest of the Court agreed) said that:

In my opinion, the appropriate range for a discount is from 10-25 per cent.
There are however two circumstances which will generally affect the appropriate level of discount in a particular case:
(i) The time at which a plea is entered. A plea entered at committal has a more significant utilitarian benefit than a plea entered at first listing, which in turn has the greater benefit than a plea entered at the beginning of trial.
ii) The complexity of the issues about which evidence will have to be gathered and adduced affects the value of the plea. The greater the difficulty of assembling the relevant evidence and the greater the length and complexity of the trial, the greater the utilitarian value of a plea.
The top of the range would be expected to be restricted to pleas at the earliest possible opportunity and should not be given, save in an exceptional case, after a matter has been set down for trial. A discount towards the bottom of the range is appropriate for late pleas, for example, on the date fixed for trial,
unless there are particular benefits arising from the prospective length and complexity of the trial.
Rare cases involving exceptional complexity and trial duration may justify a higher discount. (pars 152 – 156)

58 Earlier his Honour observed:

Furthermore the plea is, of itself, equivocal with respect to remorse. A plea may be entered as an acceptance of the inevitable or in order to obtain such advantage as may be afforded in the circumstances. In such a case a plea does not indicate genuine remorse or contrition. …
The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing
judge, then the diminution of sentence is given for contrition, not for the plea of guilty. …
As noted above, a factor identified as a benefit from a plea of guilty is the avoidance of the need for witnesses to give evidence, particularly victims and their families and, especially, sexual assault victims. In Siganto (at 664 [23]), the High Court regarded such benefits as relevant to the aspect of remorse.
…
Like the element of remorse, this consideration depends on the specific circumstances of the offence and overlaps to a substantial extent with other aspects of the specific case which are relevant to the sentencing task.
These conclusions are reinforced by consideration of the "instinctive synthesis" approach to the sentencing process which has generally been accepted as the appropriate approach. The aspects of the guilty plea that go to remorse and witness vulnerability are much more closely associated with other
factors concerning the circumstances of the offender and of the offence, including other evidence relating to contrition, than the element of advantage to the administration of criminal justice. The public interest served by encouraging pleas of guilty for their utilitarian value is a distinct interest (pars 117-119, 121-122).

59 I referred earlier to the fact that the offenders entered pleas several weeks into their trial. Clearly then they could not be described as early pleas. Nevertheless, I was informed that the offenders entered their pleas immediately upon being informed, for the first time, that the Crown was prepared to accept them. I intend no criticism of the Crown in making that observation. In some trials, of which this may have been a prime example, the Crown’s view about the strength or otherwise of its case can only be gleaned once the trial proceedings have been underway for some period of time. In the circumstances, it is common ground that the pleas of guilty were entered at the first reasonable opportunity available to the offenders. In arriving at that conclusion, it is appropriate to observe that the Crown originally saw fit to proceed with a charge of murder against the three present offenders notwithstanding its decision to proceed only with a charge of manslaughter against the other four accused. Nevertheless, in considering the significance of the conclusion that the pleas were entered at the first reasonable opportunity I have had regard to what was said by the Court of Criminal Appeal in R v Dib [2003] NSWCCA 117 and R v Harmouche [2005] NSWCCA 398.

60 I was also informed that had the trial continued, it would have occupied an estimated further 12 weeks of hearing time. That may be a rather conservative estimate given the time which had been consumed taking the evidence of the witnesses who had given evidence at the time when the pleas were entered, and also given the large number of witnesses who were still to give evidence. Nor should it be overlooked that each of the then accused was separately represented. The critical witnesses who had been called had been closely cross-examined by most, if not all counsel. Moreover, a number of legal arguments had been foreshadowed. Finally, on this aspect of the matter, the addresses and summing-up would, it seems, have occupied at least a couple of weeks’ court time.

61 As I understand the situation, the Crown case depended for its proof upon eyewitness accounts of the incident. There was, for example, no forensic evidence which linked any of the offenders with the incident and nor, with the exception of CJ, did any of them make any statement to police which could be relied upon as an admission of their involvement in it.

62 The entering of the pleas obviated the need for a very large number of other civilian witnesses having to be transported to Sydney from the Wilcannia area to give evidence. Several of those prospective witnesses, whom it was anticipated would have been in a position to give eyewitness accounts of the incident which led to the death of Doolan Jones, were as young as 12 years of age.

63 It is clear that the witnesses who did give evidence were traumatised by the experience of having to do so. That is hardly surprising given that they were Aboriginals who resided in the isolated community of Wilcannia. They were in totally alien surroundings in a large international city, a situation which was exacerbated by having to appear in what no doubt seemed to them to be a hostile court environment. There is no reason to suspect that the prospective witnesses would not have had a similar reaction to having to give evidence. I also have no hesitation in accepting that the trial itself was heightening anxiety in the town of Wilcannia as many of its residents inevitably got caught up in the tension created by the proceedings. The fact that many of the parties and witnesses are related to each other served only to heighten the tension to which this trial gave rise. Hopefully the pleas of guilty will go some way towards reducing that tension and enabling the “healing process to commence”: see Thomson & Houlton (supra) at par 120.

64 It must be recognised that it is not possible, given the stage at which the pleas were entered, to make an accurate assessment of the strength of the Crown case. I was however provided with a document setting out the manner in which the Crown case was to be put and thus was able, to some extent at least, to gauge its likely strength. Moreover, I had the advantage of hearing a number of witnesses give evidence.

65 It may be observed that those eyewitnesses who had given evidence in the trial, of whom there were about 8, were without exception open to criticism upon the basis that they were either unreliable and/or had problems with their credibility and demeanour. The evidence of at least some of those witnesses appeared to have been coloured by which “camp” in Wilcannia they belonged to. Indeed, it would also have been difficult in the circumstances for the witnesses not to have felt under some form of pressure to take sides in the ongoing dispute which precipitated the incident that led in turn to the present proceedings. Moreover, many of the witnesses were affected at the time of the incident by their having consumed intoxicating liquor, a matter which affected their capacity to both accurately observe and then later recall the details of it.

66 The jury had the benefit of a view of the area in which the fatal incident took place. Suffice it to say that the fatal incident occurred at night in an area that was dimly lit. It is common ground that the incident itself was over very quickly and that it took place in circumstances of considerable confusion. The capacity of eyewitnesses to have accurately observed the incident must have been significantly diminished, especially given the distance from which the observations were made. In those circumstances it is not surprising that the evidence of the witnesses who had given evidence was in the most general of terms.

67 Various other difficulties were also identified. Several of the witnesses maintained that one of the offender King’s sons had been involved in the incident. Other material however, I am informed, established that he was elsewhere at the time. Indeed the proceedings which had been commenced against him were terminated. Evidence from a number of witnesses which suggested that there had been an attack of sustained ferocity upon the deceased could not be reconciled with the forensic evidence. Finally, the indications are that the witnesses had, as is to expected, discussed between themselves their recollections of events prior to giving evidence.

68 Given the evidence which was given in the trial the Crown case could not be regarded as particularly strong, and each of the offenders could have reasonably entertained some optimism as to the ultimate verdicts had the matter run its full course. That is a factor to be weighed in the balance in assessing the value of their pleas of guilty. In all those circumstances it can be said that the offenders have each significantly “facilitated the course of justice”: see R v Cameron (2002) 187 ALR 65. The pleas of guilty, and the contrition which is implicit in them especially given the challenges facing the Crown, are thus matters that I expressly take into account in the case of each offender: see s 22 of the Crimes (Sentencing Procedure) Act.

69 I have already referred to the length of the trial and, by inference, to “the difficulty of assembling the relevant evidence” given the problems associated with both marshalling the witnesses and the quality of their evidence. This was not a case involving exceptional complexity in the ordinary sense. However, the fact that the Crown was seeking to establish that arising from the same incident, three offenders were party to a joint criminal enterprise to commit murder whilst four others were party to a joint criminal enterprise to commit manslaughter had already given rise to issues of both factual and legal complexity, and was likely to continue to do so.

70 As can be seen, this was a most unusual case which presented almost unique challenges. The Crown expressly conceded that notwithstanding the time at which the pleas were entered, they still had a “significant utilitarian value”. In my view, it is appropriate to allow a discount in excess of 20% for all aspects of the pleas of guilty, which includes their utilitarian value, the contrition implicit in them and other matters such as “witness vulnerability”. As I have already observed, the evidence reveals that CJ has displayed genuine remorse for his actions, and accordingly he is entitled to some further consideration to reflect that fact.

71 The offender CJ was 16 years at the time of the offence. His age brings into play the provisions of the Children (Criminal Proceedings) Act, and in particular s 6 of that Act. As the offence which he committed meets the description of a “serious children’s indictable offence” it will be necessary to deal with him “according to law”: s 17.

72 I accept that the age of the offender CJ, whom the legislation regards as having been a child at the time, is a relevant consideration in the present sentencing exercise. The principles to be applied in cases involving the sentencing of young offenders, especially for serious offences, are well established. In R v AEM (Snr) & Ors [2002] NSWCCA 58, the Court of Criminal Appeal said:

It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation…However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does can it stand in the way of the need to protect society. (at par 97)

73 In R v Hearne (2001) 124 A Crim R 451, the Court of Criminal Appeal cited, with apparent approval, the principle that:

In sentencing young people…the consideration of general deterrence is not as important as it would be in the case of sentencing an adult and considerations of rehabilitation should always be regarded as very important indeed. (at 458)

74 The court then went to observe that:

[o]f course that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in the less serious ones…However it is, we think appropriate to look beyond the simple difference in facts to address the principle which is involved. It lies in at least part of the rationale for making any allowance for youth, that is, the immaturity which is usually involved. Where that immaturity is a significant contributing factor to an offence then it may fairly be said that the criminality involved is less than it would be in a case of an adult of more mature years…. the Courts have taken the view that the younger the offender, the greater the weight to be afforded to the element of youth. (at 458-9)

See also R v Adamson (2002) 132 A Crim R 511 at 516-7 and R v Voss [2003] NSWCCA 182.

75 In R v MD, BM, NA and JT [2005] NSWCCA 342, the Court of Criminal Appeal observed:

However, as we have indicated, when imposing sentences, apart from considerations of punishment and deterrence a court must assess the offender’s capacity to reform and return to and make a contribution to the community. This must be of particular concern with young offenders where the opportunity to rebuild a life is more likely to be available. Unless the punishment recognises these possibilities and the circumstances of the incarceration made conducive to rehabilitation, some benefits to the community which may come from appropriate sentencing will be lost. (at par 74)

76 This is a case in which, to use the language employed in Hearne, “immaturity is a significant contributing factor to an offence”, especially when it is recalled that CJ’s participation occurred in the context of the primary roles being performed by adult males to one of whom at least he is related. Nevertheless, I have endeavoured to strike an appropriate balance between the various competing principles which are to be applied when dealing with young offenders.

77 So far as the offender CJ is concerned, it is also necessary to have regard to s 19 of the Children (Criminal Proceedings) Act, the relevant provisions of which are 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 as a juvenile offender.
…
(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 as a juvenile offender 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 as a juvenile offender 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.
(6) The warrant of commitment that is issued under section 62 of the Crimes (Sentencing Procedure) Act 1999 in relation to a sentence of imprisonment the subject of an order under this section:

(a) must indicate that the sentence is the subject of such an order, and

(b) must specify how much of the sentence is to be served as a juvenile offender, and

(c) must, despite the provisions of that section, commit the person to whom it relates to a detention centre.

78 The offender CJ is now aged 18 years and 9 months. Accordingly, unless he is to be immediately released, to enable it to sentence CJ as a juvenile offender and thus order that the sentence be served in a detention centre, the Court must be satisfied that “there are special circumstances” within the meaning of subs (4). I am persuaded that the offender is able to satisfy the requirements of subs (4), particularly as it is clear from the material which has been placed before me that he has made very significant progress to date in his present environment. In coming to that conclusion I have borne in mind the following remarks made by the Court of Criminal Appeal in R v AEM (Snr) & Ors (supra):

A transfer to an adult gaol will involve considerable dislocation. Given that last year saw considerable improvement in his behaviour and maturity, the Court should, to the extent that it is able, encourage that. It is far preferable, and in the end works towards the greater protection of the community, if an offender can complete a term of imprisonment with insight into the wrongdoing which placed him or her there, with increased maturity and with skills. He should be given an opportunity to further develop both personally and educationally and we consider that some further period in a Juvenile Justice Centre will better assist that process. (at par 199)

79 I am prepared to make a finding of “special circumstances” in the case of each offender. So far as the offender CJ is concerned, I do so because it is his first time in custody and he will need ongoing supervision and counselling upon his release to enable him to reintegrate into the community. That period of supervision should enable him to address any on-going issues which arise from his use of alcohol and cannabis. So far as the offender King is concerned, I make a similar finding particularly given that this is his first time in an adult prison and that he will also need a period of time under supervision to enable him to reintegrate into the community. He will also need counselling to enable him to deal with the issues which precipitated the present offence.

80 The latter remarks apply equally to the offender Bugmy. Whilst he is no stranger to gaol, he needs an extended period of supervision in the community to address his deep-seated problems with alcohol which, as I have said, appear to have been a catalyst for the commission of most, if not all, of his past offences.

81 That leaves the question of parity as between the three offenders. It is common ground that there must be some differentiation in the sentences to be imposed, if only to reflect the quite different personal circumstances of the offenders. Furthermore, CJ stands to be sentenced in accordance with the rather more benevolent provisions of the Children (Criminal Proceedings) Act. In addition to that consideration, CJ is entitled to greater leniency by reason of his age (particularly when compared to the others), his impaired cognitive functioning, the fact that he has no prior record, the fact that he has expressed remorse for his actions and the fact that he has what I would assess as being very good prospects of rehabilitation. The offender King is entitled to greater leniency than the offender Bugmy by reason of his good character, better prospects of rehabilitation and significantly better record, as well as by the fact that he is not encumbered, as the offender Bugmy is, by having committed this offence whilst on parole.

82 Nevertheless, it will be necessary to maintain “due proportion” between the sentences imposed. The correct principles to be applied were stated by Dawson and Gaudron JJ in Postiglione v The Queen (1996-97) 189 CLR 295, in which their Honours said:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options.
Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality. (at 301-2)

83 The various authorities to which I earlier referred make plain that there is no established tariff for the offence of manslaughter. This is a particularly difficult sentencing exercise because there are a variety of factors which need to be considered in assessing the appropriate sentence. The circumstances giving rise to the offence are almost unique. For that reason alone little assistance can be derived from what may loosely be described as comparable cases.

84 It is necessary to impose sentences which properly reflect the objective gravity of the offences in question, and which give effect not only to the various matters referred to in s 3A of the Crimes (Sentencing Procedure) Act but also to the maximum penalties prescribed by the legislature. The considerations to which I have just referred apply to the non-parole period as well as to the overall sentence: see R v Simpson (2001) 53 NSWLR 704. This case involves the death of a man following a group attack upon him during which weapons were used. Notwithstanding the circumstances in which the offenders committed these offences, a human being has needlessly lost his life. Nothing less than custodial sentences of some length can thus be countenanced.

85 The offenders King and Bugmy have been in continuous custody since their arrest on 28 March 2004. The offender CJ has been in continuous custody since his arrest on 31 March 2004. The sentences to be imposed upon the offenders will commence from those dates.

Sentences

86 For the offence of manslaughter I sentence the offender CJ to a non-parole period of 2 years and 8 months to date from 31 March 2004 and to expire on 30 November 2006, and a total sentence of 4 years and 4 months to date from 31 March 2004 and to expire on 30 July 2008. I order that the whole of the non-parole period be served in a detention centre. The offender is eligible for release on parole on 30 November 2006.

87 I sentence the offender Malcolm King to a non-parole period of 3 years and 8 months to commence on 28 March 2004 and to expire on 27 November 2007, and a total sentence of 6 years to commence on 28 March 2004 and to expire on 27 March 2010. The offender is eligible for release on parole on 27 November 2007.

88 I sentence the offender Timothy Bugmy to a non-parole period of 4 years and 4 months to commence on 28 March 2004 and to expire on 27 July 2008, and a total sentence of 7 years and 6 months to commence on 28 March 2004 and to expire on 27 September 2011. The offender is eligible for release on parole on 27 July 2008.

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