R v Lambaditis

[2015] NSWSC 746

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Lambaditis [2015] NSWSC 746
Hearing dates:	5 June 2015
Decision date:	12 June 2015
Jurisdiction:	Common Law - Criminal
Before:	Hall J
Decision:	The offender is sentenced to a non-parole period of imprisonment of 6 years and 9 months to commence on 3 November 2013 and to expire on 2 August 2020.  There will be a parole period of 2 years and 3 months to commence on 3 August 2020 and to expire on 2 November 2022.
Catchwords:	CRIMINAL LAW – Sentence – Manslaughter – Early plea of guilty – Offender under the influence of alcohol – Offender punched the deceased – Deceased died from head injuries suffered – Deceased was not known to the offender – Attack was unprovoked – Offence of assault on Form 1 taken into account – Discount of 25% allowed for guilty plea – Offence at least mid-range of objective seriousness – Offender had no history of violence – Offender showed remorse – No special circumstances – No variation to standard non-parole period warranted – Consideration of R v Loveridge [2014] NSWCCA 120 – Need for general deterrence in cases of this type – Sentenced to 9 years imprisonment – 6 years and 3 months non-parole period
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 146 Attorney-General under s 36 Criminal Justice Act 1988 [2005] EWCA Crim 812 Donaczy v R [2010] NSWCCA 143 Hopley v R [2008] NSWCCA 105 R v Dyer [2014] NSWSC 1809 R v Field [2014] NSWSC 1797 R v Lane (No 3) [2015] NSWSC 118 R v Lavender [2005] HCA 37; 222 CLR 67 R v Loveridge [2014] NSWCCA 120 R v Matthews [2015] NSWSC 49 Regina v Dodd (1991) 57 A Crim R 349 Regina v Hoerler [2004] NSWCCA 184 Regina v KT [2007] NSWSC 83 Wilson v The Queen (1992) 174 CLR 313
Category:	Sentence
Parties:	Regina (Crown) Nicholas Lambaditis (Offender)
Representation:	Counsel: T Bailey (Crown) E Ozen (Offender)   Solicitors: Office of the Director of Public Prosecutions Australian Criminal Law Specialists Pty Ltd (Offender)
File Number(s):	2013/331450

REMARKS ON SENTENCE

1. On 26 September 2014, the offender, Nicholas Lambaditis was charged on indictment that on 3 November 2013 at Sydney in the State of New South Wales he did murder Lucio Rodrigues.

2. The proceedings were listed for trial commencing on 9 March 2015. On that date there was a voir dire hearing, following which the Crown elected not to proceed on the indictment.

3. Accordingly, the offender was charged on indictment on 9 March 2015 that he on 3 November 2013 at Sydney in the State of New South Wales did unlawfully kill Lucio Rodrigues.

4. On that date, the offender entered a plea of guilty to the offence of manslaughter. The proceedings were then stood over for a sentence hearing on 5 June 2015.

Background

5. The relevant facts on sentence were set out in a document entitled “Crown Facts on Sentence” which was tendered and marked as Exhibit A. The facts as set out in that exhibit were agreed.

6. The facts based thereon may be shortly stated. On the evening of Saturday, 2 November 2013, the offender then 33 years of age, attended a buck’s party for a cousin. The offender met his cousin and friends at a hotel at 7pm. The group drank alcohol whilst they waited for everyone to arrive.

7. By 9.30pm on the same night, the offender, his cousin and friends were in the penthouse at Meriton Apartments in King Street, Sydney, that had been booked for the buck’s party. Food and alcoholic drinks were served.

8. At about 2:25am on Sunday, 3 November 2013, CCTV footage records the offender leaving the Meriton penthouse with five other males.

9. The material events thereafter were recorded by CCTV cameras. The relevant CCTV footage was tendered and became Exhibit “B” in the sentencing proceedings.

10. At about 2:37am the same night, CCTV footage from the Shark Hotel records the offender approaching a security guard outside the entrance of the Shark Hotel with his group behind him. They were refused entry and CCTV footage records the offender and the three males walking away.

11. Between 2:42am and 2:59am, CCTV footage records the movements of the offender and his friends during which period they entered various hotels and continued drinking beer.

12. At 2:54am the CCTV footage from Scruffy Murphy’s Hotel records the deceased, Mr Heward, and their friends, walking past and stopping outside a kebab and pizza shop in Goulburn Street, near George Street, Sydney. The deceased’s friends ordered food from the pizza shop.

13. At about 2:55am, the offender and his group left a hotel and walked towards Scruffy Murphy’s Hotel.

14. At 2:59am, CCTV footage from Scruffy Murphy’s records the offender and his group speaking to the security guards outside that hotel.

15. The security guard refused them entry. The group then walked away.

16. At about 3:02:20am, CCTV footage from Scruffy Murphy’s Hotel records the offender and his group walking past the deceased and Mr Heward. As they did so the offender and one of his friends looked back towards Scruffy Murphy’s Hotel.

17. A witness who was working inside a kebab and pizza store saw the offender yelling back towards Scruffy Murphy’s as he walked. The offender yelled something like “fucking dogs” and was swearing in that direction. The offender then turned and continued walking in the direction of George Street.

18. After he and his group walked past the deceased and Mr Heward, the offender turned around at 3:02:26am and walked with apparent purpose back to Mr Heward.

19. A witness told police that he saw the offender walk back towards a male and yell “What the fuck did you just say?”. He was directing those words to Mr Heward. Mr Heward had his hands in his pocket or by his side and the witness said “He didn’t look prepared for a fight.”

20. The offender then using his right hand struck Mr Heward forcibly to the chin at 3:02:29am without warning. This caused Mr Heward to stumble backwards and fall to the ground. Mr Heward was visibly affected by the assault, though it caused no serious or lasting injury.

21. Mr Rodrigues, who was standing next to Mr Heward, stepped in and used his right hand to punch the offender once to the left‑hand side of his face or head, just before Mr Heward fell to the ground. That blow caused the offender to take a couple of backward steps.

22. Mr Rodrigues then took a step towards the offender and kicked towards him with his right foot. The offender blocked the kick with both his hands and took a backward step. At this time Mr Heward was trying to get off the ground.

23. The offender threw a punch at Mr Rodrigues with his right arm at 3:02:32am that narrowly missed him. Mr Rodrigues stumbled backwards a couple of steps before regaining his balance. The offender moved towards him with his left arm extended towards Mr Rodrigues and threw a forceful punch at him with his right arm at 3:02:34am that connected with the front of Mr Rodrigues’ head. This immediately caused him to fall backwards onto the ground, without stumbling. Mr Rodrigues did not move after falling to the ground. Witnesses heard a large crack and breaking noise.

24. The offender and his group left and crossed George Street and walked back towards the Meriton Apartments in Kent Street.

25. At about 4:11am the CCTV footage records the offender leaving the Meriton penthouse with another. He was then identified to police by a friend of the deceased.

26. At 4:16am on the same morning police arrested the offender. He was cautioned and taken to the Day Street Police Station. He participated in an electronically recorded interview.

Injuries to the Deceased

27. At about 9:23am on Tuesday, 5 November 2013, life was pronounced to be extinct after doctors determined that the deceased had no brain activity.

28. The autopsy report completed by Dr Istvan Sventmariay indicates that the cause of death was blunt force head injury.

29. Dr Sventmariay identified the following:

“a.   severe blunt head injury comprising of brain swelling, bilateral subarachnoid haemorrhage, bilateral subdural haemorrhage, extensive bilateral cortical contusions/lacerations with parenchymal extension, and recent infarction;

b.   extensive fragmentation of the brain;

c.   most parts of the right brain hemisphere were herniating through a large craniectomy;

d.   numerous mostly smaller base of the skull fractures;

e.   blunt injuries (bruising and laceration) of the lips and the inner lining of the mouth on the left side, however no teeth or tongue injuries were noted and no maxillary fractures were identified.”

Overview

30. On the evidence contained in the Agreed Facts, Exhibit A, it is plain that the offender was affected by alcohol and additionally was in an angry state of mind or disposition at the time of the assaults upon the deceased and his friend, Mr Heward. His intoxicated state provides at least a partial explanation for his behaviour but in no way provides either justification or mitigation of the objective seriousness of the offence or the culpability of the offender.

31. The offender had been drinking alcohol on the night from some time after 7pm and continued thereafter having visited hotels until a time not long before the attack upon Mr Rodrigues.

32. On the facts it is clear that at about 2:59am when the security guards at Scruffy Murphy’s Hotel turned the offender and his group away, the offender became angry and abusive, shouting insults at the security guards.

33. As he proceeded to walk past the place where the deceased and Mr Heward were standing, the evidence is that the offender heard a comment which he attributed to Mr Heward. Whatever the precise comment made by Mr Heward or possibly somebody else may have been, the offender took exception to it and his already existing state of anger escalated from that point and led him to deliver a severe punch or hit to Mr Heward’s head causing him to fall to the ground.

34. Mr Rodrigues’ reaction in hitting out at the offender was clearly precipitated by the offender’s assault on his friend with the deceased intervening to prevent any further attack being launched by the offender.

35. The CCTV footage establishes clearly enough that these events moved at a very fast pace. The offender by this time was plainly intent on escalating the violent incident provoked by his own actions towards Mr Heward. The CCTV footage shows the offender delivering a ferocious punch to the deceased’s head. The enormous force of that punch was sufficient to cause him to fall backwards and striking his head without breaking his fall.

Subjective Factors

36. The offender is presently 35 years of age. He was born in 1980 and was therefore 33 years of age at the date of the offence. A considerable amount of material concerning the offender’s family background, his employment and personal life is the subject, firstly, of a report prepared by Anna Robilliard, Forensic Psychologist, and a number of testimonials provided by family members and friends.

37. Ms Robilliard interviewed the offender at Long Bay Gaol on 14 May 2015 and subsequently produced her report of 28 May 2015 which was tendered at the sentence hearing.

38. Ms Robilliard’s report contains a detailed history of the offender’s background, education, employment, relationship history and results of test assessments carried out by her in respect of his intelligence and personality. The history obtained by Ms Robilliard, confirmed in various aspects by certain of the testimonials that have also been tendered in evidence, state that the offender at the age of 18 entered into a traineeship as a security technician and thereafter was employed by a number of companies in relation to work involving the installation of security equipment and related matters. He was employed by a company in that field at the time of the offence. Mr Hassan, General Manager of the company for whom the offender was then working, wrote favourably as to the offender’s personal qualities and his work performance and indicated that he is willing to explore future employment opportunities for him.

39. Ms Robilliard noted that there was no known or family history of mental health issues and that the offender has never been treated for depression or anxiety. The only prior matter noted on his criminal record was mid-range PCA offence dating offence from June 2010.

40. Ms Robilliard noted that the offender has completed a SMART program whilst in custody. The history obtained by Ms Robilliard is consistent with heavy drinking of alcohol on weekends and limited use of stimulant drugs (cocaine) for about 12 months leading up to the offender’s arrest and imprisonment.

41. The offender’s account of the circumstances leading up to and surrounding the offence is inconsistent in certain respects with other evidence. He told Ms Robilliard that he “palmed” Mr Heward in the face. He claimed that he was angry about being refused entry to licenced premises immediately before the incident. He admitted to Ms Robilliard that he had been offended by a comment that came from what is described as “the victim’s group“ and told her that his response was “just an impulsive action.”

42. On assessment, Ms Robilliard stated that the offender scored on intelligence testing a level which placed him toward the middle of the average range.

43. On clinical personality testing, there were no elevated scores on the severe personality pathology scales such as to suggest a diagnosis of personality disorder.

44. The results of testing carried out by Ms Robilliard indicate that there has been a psychological dependence and compulsive use of alcohol by the offender. She considered that his attitude to drugs and alcohol has changed since being charged with the current offence and he stated to her that he believes that his position since then will precipitate a change in his behaviour post-release. Ms Robilliard expressed the opinion that his post-release prognosis seems positive.

45. She noted that he had ongoing support from his immediate family and network of pro-social friends.

46. The testimonials which have been tendered include those from his mother, Mr George Reynolds, Mr Con Lepouris, Gabriella Vasta, George Papoulidis and Olimpia Farma. The testimonials provide a consistent account of a person who has maintained a work ethic and has been a trustworthy person with positive characteristics.

47. A number of testimonials have been tendered on behalf of the offender, each of which I have carefully read and taken into account.

Submissions for the Offender

48. Mr Ozen of counsel who appeared on behalf of the offender, relied upon written submissions dated 4 June 2015 supplemented at the sentence hearing. In the written submissions Mr Ozen incorporated a table setting out the sequence of events as captured on CCTV footage commencing at 3:02:19 through to 3:02:35.

49. As noted in the submissions, the offender and Mr Heward had not known each other prior to the incident and there had been no interaction between them earlier in the night. He submitted that Mr Heward exhibited some interest in the offender and watched him as he went past and appeared to call something out to him.

50. The written submissions then describe the actions of Mr Rodrigues although it was emphasised that there was no attempt made to blame him for his own death. However, his actions were relied upon in order to gauge the objective seriousness of the case.

51. It was conceded that the deceased’s actions on the night were undoubtedly motivated by a desire to defend his friend Mr Heward, however it was submitted that the Court could not find that the offender had an intention to further assault the deceased. A blow was struck to Mr Heward and almost immediately thereafter it was said that the deceased struck the offender. It was submitted that Mr Rodrigues had struck the offender with a very forceful blow which knocked him backwards.

52. The CCTV footage indicated that, before that blow, the offender had not been paying any attention to the deceased and was not intending to fight him.

53. It was submitted that from 3:02:29 onwards Mr Rodrigues had carried out at least two offensive acts towards the offender before the offender retaliated.

54. The offender then threw two punches at him, the first of which did not appear to connect.

55. It was emphasised that the entire incident between the offender and Mr Rodrigues took place within five seconds and no words were exchanged between them prior to Mr Rodrigues being struck. There was no evidence of any hostility between them before 3:02:29 and the offender had not attempted to strike the deceased before that time.

56. Whilst it was submitted that the Court could not conclude that the offender had an intention to cause Mr Rodrigues grievous bodily harm, a reasonable person, in the position of the offender, would have realised that he was exposing the deceased to an appreciable risk of serious or substantial injury when he struck the fatal blow: Wilson v The Queen (1992) 174 CLR 313.

57. It was submitted that the Court would find that the offender committed the offence of manslaughter by reason of an unlawful and dangerous act, namely engaging in a fight with the deceased.

58. It was again emphasised that whilst the offender started the physical altercations by striking Mr Heward, he was not paying any attention at all to Mr Rodrigues.

59. It was submitted that death was most likely occasioned by a combination of the blow from the offender and the deceased’s head hitting the pavement at a time when he had been rendered unconscious by the earlier punch.

60. Apart from the prior offence of driving under the influence, it was submitted that the applicant should be taken as a person with a prior good record for the purposes of sentencing. It was further submitted that there was no evidence to suppose that the offender had a propensity to violence, or an inability to control himself, nor anything in his history to suggest that specific deterrence ought play a prominent role in the sentencing exercise.

61. It was accepted by Mr Ozen that on his own admission the offender had ingested a large amount of alcohol on the night. Reference was appropriately made to the observations by the Court of Criminal Appeal in R v Loveridge [2014] NSWCCA 120 concerning the problem of “alcohol fuelled violence”.

62. It was submitted that it was highly unlikely that the offender is a risk of re-offending and that he had an excellent work ethic and was likely to obtain employment on release. It was submitted that his prospects for rehabilitation were very good.

63. It was submitted that none of the aggravating features in s 21A of the Crimes (Sentencing Procedure) Act 1999 apply.

64. Submissions were made as to the appropriate sentence with specific reliance on a number of other cases, in particular, Donaczy v R [2010] NSWCCA 143 and Hopley v R [2008] NSWCCA 105; R v Field [2014] NSWSC 1797; R v Dyer [2014] NSWSC 1809; R v Matthews [2015] NSWSC 49 and R v Lane (No 3) [2015] NSWSC 118. I have considered the judgments in each of those cases. It is sufficient to say that the sentencing in each of them was based upon the individual facts of each of those cases, which differed in certain respects from the factual circumstances to those that arise in the present case.

65. Further submissions were made in relation to the general principle stated by the Court of Criminal Appeal in R v Loveridge in the written submissions in which it was noted that the offender in that case had pleaded guilty to one count of manslaughter, one count of assault occasioning actual bodily harm and three counts of assault on different people, all on the one night. Reference was made to the particular circumstances of that case in which the offender had shown earlier in the evening signs of aggressive and agitated behavior and involved himself in assaulting strangers without warning and for no apparent reason.

66. The offender in that case was, at the time of the offences, on conditional liberty for an act of violence.

48. Mr Ozen noted the Court of Criminal Appeal’s reference in Loveridge which reaffirm the importance of general deterrence in cases where violence is perpetrated in a public street and the need for a significant degree of general deterrence in sentencing offenders for offences of violence whilst under the influence of alcohol.

49. Mr Ozen in his detailed and comprehensive written submissions also addressed what he referred to as the “significant facts” in the present case: at [90]-[106]. I have earlier made reference to many of these factual matters.

50. Mr Ozen emphasised that the offender had not been a person who tended to get violent when intoxicated and there was no indication from his history that this was a risk. It was submitted that he was not in an aggressive mood on the night. It was submitted that he was not drinking with the intention of causing any trouble and that he only turned back when he heard what he thought was a derogatory remark yelled at him. It was submitted that after having struck Mr Heward to the face there was no evidence from which the Court could conclude that the offender at that time then intended to take matters further with either Mr Heward or Mr Rodrigues.

51. In addition to the subjective factors to which I have already referred it was submitted that the offender was generally remorseful and carried the guilt of what he has occasioned on his conscience. He had, and continues to have, the support of his family and it was likely, it was submitted, that he would return to employment upon release.

Crown Submissions

71. The Crown submitted that the offender had been earnest in giving evidence and describing his own behavior as “reckless beyond measure” and that this encapsulated the Crown’s submission, which was, that the objective seriousness of this offence was above the middle of the range for a number of reasons.

72. It was submitted that after the offender had been refused entry, his anger was growing which was manifested in the insults that he threw over his shoulder towards the security staff at the Scruffy Murphy’s Hotel.

73. Whether or not Mr Heward had called out words to the effect of “Keep walking”, he was not expecting the punishment that was then meted out to him by the offender. The offender had admitted of the possibility that it was not Mr Heward who had called out the words to which he took offence.

Objective Seriousness of the Offence

74. The physical element for the offence of manslaughter is, of course, the unlawful and dangerous act which causes death. The mental element requires that the act must be willed and not accidental: Wilson v The Queen (1992) 174 CLR 313 at 328. To be found guilty of manslaughter by unlawful and dangerous act, the circumstances must be such that a reasonable person in the position of an accused would have realised that he or she was exposing another or others to an appreciable risk of serious injury: Wilson (supra) at 332-4; Regina v KT [2007] NSWSC 83.

75. The maximum penalty for the offence of manslaughter is imprisonment for 25 years. There is no prescribed standard non-parole period.

76. The offender is to be sentenced on the basis of an unlawful and dangerous act that caused the death of the deceased.

77. In assessing the objective seriousness of the offence of manslaughter by way of unlawful and dangerous act, it has been said that there is no hierarchy of seriousness between voluntary and involuntary manslaughter. Spigelman CJ said as much in Regina v Hoerler [2004] NSWCCA 184 at [29].

78. In determining the sentence in the present case, I am required to consider the objective and subjective factors relevant to the offence and the aggravating and mitigating factors in accordance with the provisions of s 21A of the Crimes (Sentencing Procedure) Act 1999 and relevant sentencing principles. I am, in particular, required by law to take account of a number of matters in determining the objective gravity of the offence committed by the offender and the other matters to which I have referred. The sentence to be imposed is one that is appropriate to the particular crime, having regard to the gravity of the offence viewed objectively: Regina v Dodd (1991) 57 A Crim R 349 at 354.

79. Without setting out the provisions of s 21A of the Crimes (Sentencing Procedure) Act, I bear in mind that those provisions seek to identify the relevant objective and subjective factors that establish the aggravating and mitigating circumstances of the offence. That said, I accept, as has been submitted for the offender, that there are no aggravating factors referred to in s 21A(2) that apply to this case.

80. The evidence, however, establishes that the offence of manslaughter in this case involved an unlawful attack involving a number of serious matters.

81. As to the objective seriousness of the offence requires a close and realistic analysis of the events leading up to the encounter involving the attack upon the deceased.

82. The evidence establishes that the offender, before he struck Mr Heward, was in an intoxicated and angry frame of mind. Whilst he described himself in evidence as a “happy drunk” when intoxicated in the past, that was not his condition on 3 November 2013. He had been twice refused entry to hotels at 2:37am and at 2:59am, and at 3:02am was seen directing abusive language at the security guards at Scruffy Murphy’s Hotel.

83. The offender gave evidence at the sentencing hearing. He was asked:

“Q.   How do you feel about your actions and your choices on that night?

A.   I think reckless beyond measure, really. Didn’t consider anybody’s welfare or my own welfare.” (T 5 June 2015 at p 7)

84. In cross-examination the offender agreed that he had seen publicity in the media about the Loveridge case and he understood that there had been great community concern about drunken assaults in public that had fatal consequences: T 12.

85. He agreed that he concluded that the words he heard, and to which he took offence, he believed were spoken by Mr Heward. He based that conclusion on the fact that he was “the closest person in the vicinity; had to have been him”: T 13. He agreed that it was a possibility that someone else said the words other than Mr Heward, though he believed it was Mr Heward: T 14. He agreed that Mr Heward was simply standing there, did not walk up to him. He agreed he was standing with his hands in his pockets and he agreed that Mr Heward was not ready to receive a threat of physical attack: T 13.

86. He agreed there were prior occasions when he had drunk too much: T 14. He denied that he had previously lost his temper when he had drunk excessively and said he was generally “a happy drunk”: T 15. He agreed in cross-examination that Mr Heward had done nothing to deserve being struck.

87. He said he was annoyed when excluded from Scruffy Murphy’s Hotel, was angry when he heard someone call out to him and angry when he hit Mr Heward. He however claimed that he was not angry when he struck Mr Rodrigues but was “a bit disoriented”: T 17.

88. I note at this point that the offender’s mother gave evidence. She said her son is totally devastated about his actions and has had nightmares over the events leading to the death of Mr Rodrigues. She gave evidence that she had never observed, either as an adolescent or young adult, her son exhibiting violent tendencies: T 22.

89. When he turned around and confronted Mr Heward with words to the effect of “what the fuck did you say?”, and struck him, he unleashed his anger. If the words he attributed to Mr Heward were in fact said by Mr Heward, they did not provide any reason or justification for his assault upon Mr Heward. The offender lost all control due to his intoxicated, angry condition.

90. After knocking Mr Heward to the ground, events moved quickly with Mr Rodrigues intervening to help his friend against the angry out of control offender. It is artificial to the point of absurdity to suggest that Mr Rodrigues’s action in hitting the offender is to be seen as a separate unrelated or intervening act by Mr Rodrigues. Mr Rodrigues’ reaction was in the nature of an instinctive or reflex reaction by him directly due to the offender’s aggressive unlawful assault upon Mr Heward and almost instantaneously following Mr Heward’s fall to the ground.

91. It is, in my assessment, quite wrong to segment these fast-moving and tragic events and seek to apportion the events as being partly arising from the offender’s actions and partly from the deceased’s retaliatory reaction leading to the fatal blow delivered by the offender to Mr Rodrigues.

92. The proper analysis of these events is that the offender was wholly responsible for the fatal attack upon Mr Rodrigues. The evidence establishes that Mr Heward and Mr Rodrigues were completely innocent by-standers who were unfortunate enough to be in the same place as the offender.

93. The Crown submitted that the objective seriousness of the offence is above the middle of the range of objective seriousness for reasons given in submissions. Mr Ozen in his oral submissions stated that a finding of below mid-range objective seriousness is appropriate.

94. In my assessment, the objective seriousness of the offence of manslaughter in this case is at least mid-range. The matters upon which that assessment is made include:

1. The offender’s intoxicated angry state of mind which contributed to his unprovoked instigation of the offence upon Mr Heward and Mr Rodrigues.

2. The offender’s level of violence meted out to Mr Heward drew Mr Rodrigues into the violent episode he, the offender, initiated.

3. The severity of the offender’s attacks upon Mr Heward and Mr Rodrigues who, before the attacks commenced, were simply enjoying a night out without any interference or provocation by Mr Heward or the deceased.

4. The force with which the offender struck Mr Heward, causing him to fall to the ground, evidences a state of mind which continued up to and including the forceful punch to the head of Mr Rodrigues, which propelled him backwards hitting his head on the pavement without breaking his fall.

95. This is a case of alcohol-fuelled violence of a high order. It is not in the type of case of injury inflicted in the course of a drunken brawl involving an offender and victim. On the findings made to which I have earlier referred, the offender drew the deceased into a violent confrontation which was entirely of his own making.

Offending of this type in NSW

96. The Court of Criminal Appeal in R v Loveridge [2014] NSWCCA 120 examined sentencing in what is described as one-punch manslaughter cases both in the United Kingdom and in New South Wales: at [208]-[220]. The Court noted observations that had been expressed in the United Kingdom as to the unnecessary violence such offences create and justified increase in public concern with people expecting “their streets to be safe”: Attorney-General under s 36 Criminal Justice Act 1988 [2005] EWCA Crim 812 per Judge LJ at [15]. In that case, the observation was made at [12]:

“The manslaughter cases with which we are concerned involved gratuitous, unprovoked violence in the streets of the kind which seriously discourages the law-abiding citizens from walking their streets, particularly at night and gives the city and town centres over to the kind of drunken yobbery with which we have become familiar, and a worried perception among decent citizens that it is not safe to walk the streets at night.”

97. The Court in Loveridge stated that this statement echoed loudly the context of the appeal in Loveridge and it, of course, echoes loudly in the present case.

98. Although reference is often made to one-punch or single-punch manslaughter cases as constituting a particular class of case, as the Court in Loveridge observed the circumstances of these cases vary widely: at [215]. Additionally, in Loveridge the Court of Criminal Appeal stated that the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place, is of great concern to the community and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence. It is clear in the present case that the sentence to be imposed must, in an appropriate way, give effect to the principle of general deterrence in the sentencing exercise.

99. I have previously referred to the fact that a number of sentencing cases have been referred to in the course of the submissions for the offender. Such cases, of course, do not disclose a range or tariff. When sentencing for manslaughter, a court is always to have regard to the full context in which death has occurred. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: Loveridge at [229] and cases therein referred to.

100. There are some similarities to the facts in Loveridge to this case although there are also facts that distinguish that case from the present, including the fact that in that case the offender had a history of violent offences and was the subject to conditional liberty at the time of the offence in question.

101. It is to be remembered of course in sentencing that the branch of the criminal law encompassing involuntary manslaughter reflects the value placed by the law upon human life: R v Lavender [2005] HCA 37; 222 CLR 67 at 87 [60]; Loveridge at [231].

102. The attack upon Mr Rodrigues was, as in the case of Loveridge, both cowardly and unprovoked. It is a serious example of unlawful and dangerous act manslaughter which deserves substantial punishment. The offender in the present case, as I have earlier noted, was aged 33 years of age at the time of the offence, the offender in Loveridge was 18 years and 4 months. There is no equivalent circumstance in the present case to that case in terms of a deprived upbringing as the offender in the present case appears to have had a generally supportive family background. In determining the sentence I have, of course, brought into account all of the subjective factors in the present case including the fact that this is the first time the offender has been in custody. Equally, I have had regard, as earlier indicated, to the fact that general deterrence and specific deterrence are most significant factors. Although there is no evidence of prior instances of alcohol-fuelled violence by the offender, the facts and circumstances of the present case, so far as specific deterrence is concerned, indicates that the offender has a potential vulnerability to outbursts of violence in circumstances where excessive drinking and frustration and/or anger combine. On this basis, I consider that specific deterrence is a factor to be given some consideration and weight as appropriate in the sentencing exercise.

Victim Impact Statements

103. Victim Impact Statements prepared on behalf of the parents and sister of Lucio Rodrigues were received by the Court. The statements express in clear and very dignified terms on behalf of the family the grievous effect and the immense loss arising from the death of their son and brother and the impact it has had upon each one of them. The loss of a young man of great promise in the circumstances with which this case is concerned is exceptionally painful and tragic and the cause of overwhelming grief. On behalf of the Court I extend my condolences to the family of the deceased, Mr Rodrigues, for the immense loss that they have endured and will continue to endure. Nothing of course can address the immense loss that has occurred.

104. I have noted the provisions of Division 2, ‘Victim Impact Statements’ of Part 3 of the Crimes (Sentencing Procedure) Act 1999, in particular, s 28 thereof. I have, of course, closely considered the victim impact statements in this case as significant material before the Court. In determining the sentence to be imposed I have based my determination on the evidence and findings to which I have referred above. As there were no submissions made in relation to s 28 of that Act, I have determined that any sentence should not be increased by virtue of the statements to which Division 2 applies.

Form 1 Offence

105. The offender has come before this Court for sentence on a charge of manslaughter with an offence of Assault Occasioning Actual Bodily Harm to Mr Heward to be taken into account on a Form 1.

106. Mr Ozen of counsel in his written supplementary submissions dated 11 June 2015 has comprehensively addressed the Form 1 offence, which the offender has requested be taken into account on sentence.

107. The principles that determine the proper approach to sentencing for Form 1 offences were addressed in the guideline decision Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 146, in particular, at paragraphs [39]-[45] which are conveniently set out in Mr Ozen’s written submissions.

108. The issue, as has been submitted on the offender’s behalf, is whether there is a need for, having regard to the Form 1 offence, a greater emphasis on personal deterrence and the element of retribution for the additional offence. The submission was that the Court would not make the sentence for the principal offence more severe than it would otherwise have been, or, in the alternative, any increase in severity ought to be a modest one for reasons set out in the submissions.

109. As I have already indicated, the issue of personal deterrence is a matter to which I have had regard and brought into account in determining the sentence to be imposed in respect of the offence of manslaughter and in sentencing the offender I consider no greater emphasis need be given in respect of that aspect by reason of the Form 1 offence.

110. I have concluded that the sentence which I propose to impose in respect of the offence of manslaughter to which the offender has pleaded, sufficiently in itself addresses both the issue of personal deterrence and the element of retribution. The assault upon Mr Heward was a circumstance to which I have had specific regard in determining the culpability of the offender in respect of the offence charged, it being integrally linked to the assault upon Mr Rodrigues as I have earlier stated.

Remorse

111. There is evidence of remorse by the offender both in his evidence, his mother’s evidence, and the materials that have been tendered and received as exhibits in these proceedings.

112. I proceed upon the basis that the evidence does establish that the offender is remorseful for his offending conduct and I have taken that into account in determining the sentence to be imposed. I consider on the evidence his prospects of rehabilitation to be reasonable.

113. I consider the offender’s prospects of rehabilitation to be reasonable.

Special Circumstances

114. It was submitted on behalf of the offender that a finding of special circumstances is appropriate upon the basis that the Court would recognise that the offender’s incarceration in respect of the subject offence represents his first time in prison.

115. As I have earlier indicated in the consideration of the offender’s subjective circumstances I have had regard to and brought into account the particular matters that have been identified in the evidence and in submissions, including the fact that this is the first time the offender has been in custody. Upon consideration I do not consider that special circumstances ought to be found upon the basis that has been advanced. Application of the statutory ratio in the present case will, I consider, maintain what I consider to be the requisite non-parole period having regard, in particular, to the objective seriousness of the offence, including the issues of personal and general deterrence.

116. Accordingly, I do not propose to make any adjustment to the statutory ratio on the offence in question on the basis of special circumstances.

117. For the purpose of the offender’s guilty plea the Crown accepted that the plea was an early plea. There was no dispute that the maximum discount for the early plea of 25% is appropriate.

Sentence

118. Having regard to all the subjective and objective factors before the application of the 25% discount for the offender’s plea of guilty a head sentence of 12 years imprisonment is appropriate for the offence of manslaughter in this case.

119. After the application of the 25% discount, the head sentence to be imposed is a term of imprisonment for 9 years.

120. Nicholas Lambaditis, you are convicted of the offence of manslaughter. I sentence you to a non-parole period of imprisonment of 6 years and 9 months to commence on 3 November 2013 and to expire on 2 August 2020. There will be a parole period of 2 years and 3 months to commence on 3 August 2020 and to expire on 2 November 2022. Accordingly, the head sentence is a term of imprisonment for 9 years with a non-parole period of 6 years and 9 months. The first date upon which you will be eligible to be released to parole accordingly will be on 3 August 2020.

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Decision last updated: 12 June 2015