Bathurst CJ at [1]; Johnson J at [1]; R A Hulme J at [1]
Decision:
1. Crown appeal allowed.
2. Sentences imposed in the Supreme Court of New South Wales on 8 November 2013 are quashed;
3. In their place, the Respondent is sentenced as follows:
(i) for the offence of assault upon Matthew Serrao (Count 3) - sentenced to a fixed term of imprisonment of nine months commencing on 18 September 2012 and expiring on 17 June 2013;
(ii) for the offence of assault upon Rhyse Saliba (Count 4) - sentenced to a fixed term of imprisonment of 11 months commencing on 18 March 2013 and expiring on 17 February 2014;
(iii) for the offence of assault upon Aden Gazi (Count 5) - sentenced to a fixed term of imprisonment for 13 months commencing on 18 October 2013 and expiring on 17 November 2014;
(iv) for the offence of assault occasioning actual bodily harm upon Marco Compagnoni (Count 2) - sentenced to imprisonment comprising a non-parole period of 16 months commencing on 18 July 2014 and expiring on 17 November 2015, with a balance of term of six months commencing on 18 November 2015 and expiring on 17 May 2016;
(v) for the manslaughter of Thomas Kelly (Count 1) - sentenced to imprisonment comprising a non-parole period of seven years commencing on 18 November 2015 and expiring on 17 November 2022 with a balance of term of three years and six months commencing on 18 November 2022 and expiring on 17 May 2026.
4. The earliest date upon which the Respondent will be eligible for release on parole is 18 November 2022.
Catchwords:
CRIMINAL LAW - sentence - Crown appeal - Respondent pleaded guilty and sentenced in relation to three counts of assault, one count of assault occasioning actual bodily harm and one count of manslaughter - offences occurred on a single evening during which substantially intoxicated Respondent repeatedly attacked randomly selected strangers on public streets with punches to face and head - second attack resulted in manslaughter - Respondent comprehended force of blow to deceased and observed victim prone on ground before running away and committing three further offences - young offender subject to conditional liberty - disadvantaged upbringing - whether sentencing Judge's reasons infected by specific errors - failure to take into account need for general deterrence in relation to crimes of violence committed by intoxicated persons against vulnerable and unsuspecting victims in public places - failure to take into account specific deterrence in circumstances where offender had unresolved aggression and alcohol issues, previous conviction and subject to conditional liberty - error in characterising offences as "spontaneous" and in failing to find intent to injure - individual sentences and total effective sentence failed to reflect gravity of offending - no single category of "one-punch" manslaughter cases…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Loveridge [2014] NSWCCA 120
Case
[2014] NSWCCA 120
Decision Date
CaseChat Overview and Summary
In the case of R v Loveridge, the respondent, who had pleaded guilty to multiple counts of assault and manslaughter, was convicted for his actions on a single evening. The respondent, while substantially intoxicated, had attacked several strangers in public places, resulting in one fatality. The Crown appealed the sentence, arguing that it did not adequately reflect the gravity of the offences and failed to address necessary deterrence factors. The court was tasked with determining whether the original sentencing judge had erred in his assessment and whether the sentence imposed was appropriate given the circumstances of the case.
The legal issues central to the appeal revolved around the adequacy of the original sentence and whether the sentencing judge had erred in his considerations. Specifically, the Crown argued that the sentencing judge failed to adequately consider the need for general and specific deterrence, did not correctly characterise the intent behind the attacks, and ultimately, the sentence did not reflect the seriousness of the offences. The court had to examine whether the sentences for each individual offence and the total effective sentence were manifestly inadequate and whether the residual sentencing discretion should be exercised to impose a harsher sentence.
The court found that the original sentencing judge's reasons contained specific errors, notably in not sufficiently addressing the need for general and specific deterrence in cases involving violence by intoxicated individuals against unsuspecting victims. The court also found that the characterisation of the offences as "spontaneous" was incorrect, as the respondent had a history of aggression and alcohol issues, a previous conviction, and was subject to conditional liberty. Given these factors, the court concluded that the sentences for each offence and the total effective sentence did not appropriately reflect the gravity of the respondent's actions. Consequently, the court re-sentenced the respondent to a total effective term of 13 years and eight months' imprisonment with a non-parole period of 10 years and two months.
The court's decision resulted in the re-sentencing of the respondent, ensuring that the sentence imposed would more accurately reflect the seriousness of the offences and adequately address the need for deterrence. The detailed reasoning provided by the court underscored the importance of considering all relevant factors in sentencing, particularly in cases involving multiple serious offences and the need to protect the public from similar future conduct.