R v MD, BM, NA, JT

[2005] NSWCCA 342

Reported Decision: 156 A Crim R 372

New South Wales

Court of Criminal Appeal

CITATION:	R v MD, BM, NA, JT [2005] NSWCCA 342
HEARING DATE(S):	2 September 2005
JUDGMENT DATE:	30 September 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Simpson J at 1; Howie J at 1
DECISION:	1. Appeals in each matter dismissed.; 2. Sentence in relation to BM varied in respect to manslaughter count: "sentenced to a full term of four years imprisonment to expire on 13 October 2008 with a non-parole period of 2 years to commence on 14 October 2004 and to expire on 13 October 2006."

CATCHWORDS:	CRIMINAL APPEAL - appeal by Crown against sentence - plea of guilty to manslaughter - objective gravity of the offence - young offenders - whether the trial judge gave excessive weight to subjective factors
LEGISLATION CITED:	Criminal Appeal 1912 Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Young Offenders Act 1997 (NSW)
CASES CITED:	Dinsdale v The Queen (2000) 202 CLR 32 Makarian v The Queen (2005) 215 ALR 213 Malvaso v The Queen (1989) 168 CLR 227 R v AEM SNR & Ors [2002] NSWCCA 58 R v Allpass (1993) 72 A Crim R 561 R v Baker (2000) NSWCCA 85 R v Dalton [2005] NSWCCA 156 R v Dawes [2004] NSWCCA 363 R v Edwards (1996) 90 A Crim R 510 R v Elfar [2003] NSWCCA 358 R v MA [2004] NSWCCA 92 R v Nguyen (unreported, CCA, 14 April 1994) R v Pham (1991) 54 A Crim R 128 R v Rushby [1977] 1 NSWLR 594 R v Simpson (2001) 53 NSWLR 704 R v Tran [1999] NSWCCA 109 R v Troja (unreported, CCA, 16 July 1991) R v Wall [2002] NSWCCA 42 R v Webb (unreported, CCA, 12 September 1997)
PARTIES:	The Crown (Appellant) MD (Resp) BM (Resp) NA (Resp) JT (Resp)
FILE NUMBER(S):	CCA 2005/739; 2005/741; 2005/742; 2005/743
COUNSEL:	L M B Lamprati SC/N Noman (Crown) P Zahra SC (MD) M C Ramage QC (BM) D Carroll (NA) P Roberts SC (JT)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission of NSW (MD, BM, NA, JT)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	70094/03
LOWER COURT JUDICIAL OFFICER:	Greg James J

2005/739
2005/741
2005/742
2005/743

McCLELLAN CJ at CL
SIMPSON J
HOWIE J

30 September 2005

REGINA v MD, BM, NA, JT

Judgment

1 THE COURT: This is an appeal by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912. The proceedings have an unusual history. On 13 September 2004, the joint trial of MD, NA, BM and JT commenced. At that trial the respondents were charged as follows:

· On 31 December 2002 with murdering Kurt Smith at Emu Plains;

· On 31 December 2002 with robbing Kurt Smith of property, namely a mobile telephone and at the time of such robbery, inflicting grievous bodily harm upon Kurt Smith (MD, NA, BM only);

· On 31 December 2002, assault with intent to rob Sean Clifford of a mobile telephone whilst in company (MD, NA, and MB only).

2 All of the respondents pleaded not guilty to the relevant charges. NA pleaded not guilty to murder but guilty to manslaughter. The Crown did not accept NA’s plea and the trial proceeded.

3 On 14 October 2004 MD, BM and NA were re-arraigned and each pleaded not guilty to murder but guilty to manslaughter. The Crown accepted the pleas in full discharge of the indictment.

4 Additionally, MD pleaded guilty to stealing a mobile telephone from Kurt Smith and BM pleaded guilty to assaulting Sean Clifford. The Crown did not proceed further on the other charges with which MD, NA, BM had previously been indicted.

5 Following the re-arraignment of MD, BM and NA and their pleas of guilty to manslaughter JT’s trial continued. However, after the Crown closed its case against JT submissions were made on his behalf that there was no case to answer. Before these submissions were determined, the trial judge became indisposed and the trial was adjourned for a number of days. The judge later informed the parties that he was unable to proceed with the trial in the event that the no case submission was unsuccessful. His Honour ultimately held that there was a case to answer but, because he was unable to continue to hear the trial, on 2 November 2004 he discharged the jury.

6 Shortly thereafter, JT was re-arraigned on the charge of manslaughter of Kurt Smith and common assault of Sean Clifford. The latter charge was not included in the indictment presented at the trial. JT then pleaded guilty to both charges.

7 Following the pleas the sentencing judge imposed the following sentences:

MD
Count 1 (manslaughter)
Imprisonment for 5 years 6 months commencing on 9 April 2003 and expiring on 8 October 2008 with a non-parole period of 3 years 6 months expiring on 8 October 2006.

Count 2 (steal from the person)
Imprisonment for a fixed term of 6 months commencing on 9 January 2003 and expiring on 8 July 2003.

Accordingly, the aggregate sentence of MD was:
Imprisonment for 5 years 9 months commencing on 9 January 2003 and expiring on 8 October 2008. There was an effective non-parole period of 3 years 9 months expiring on 8 October 2006.

MD has been in custody since 9 January 2003.

NA
Count 1 (manslaughter )
Imprisonment for 4 years 6 months commencing on 1 September 2004 and expiring on 28 February 2009 with a non-parole period of 2 years expiring on 31 August 2006.

NA has been in custody since 14 October 2004.

BM
Count 1 (manslaughter )
Imprisonment for 4 years commencing on 14 October 2004 and expiring on 13 October 2008 with a non-parole period of 2 years commencing 14 September 2004 and expiring on 13 September 2006.

Count 2 (common assault )
Imprisonment for a fixed term of 6 months commencing on 14 September 2004 and expiring on 13 March 2005.

Aggregate sentence:
Imprisonment for 4 years and 1 month commencing on 14 September 2004 and expiring on 13 October 2008. There was an effective non-parole period of 2 years expiring on 13 September 2006.

BM has been in custody since 14 October 2004.

JT
Count 1 (manslaughter )
Imprisonment for 4 years commencing on 3 April 2003 and expiring on 2 April 2007 with a non-parole period of 2 years 6 months expiring on 3 October 2005.

Count 2 (common assault )
Imprisonment for a fixed term of 6 months commencing on 3 January 2003 and expiring on 3 July 2003.

Aggregate sentence:
Imprisonment for 4 years 3 months commencing on 3 January 2003 and expiring on 2 April 2007. There was an effective non-parole period of 2 years 9 months commencing on 3 January 2003 and expiring on 3 October 2005.

JT has been in custody since 3 January 2003.

Background facts

8 The events which gave rise to the charges occurred on New Year’s Eve, 31 December 2002, in the vicinity of the highway at Emu Plains. It was late at night and a number of young people had gathered at Emu Park. Some of them were significantly affected by alcohol. His Honour found that the events occurred in an area of poor lighting with patches of shadow created by vegetation. There was fixed light around the vicinity of a power pole.

9 The deceased, his male companion and some young girls were walking from the railway station to a party. They passed by the oval at which a group of young people were assembled, although they were initially some distance away.

10 The trial judge found that “some members of the group, including, the offenders, moved either individually or in small groups over to the highway. There, an altercation occurred. The detail of that altercation – bearing in mind the condition of certain of the witnesses, their inability after the lapse of some considerable time to be reliably precise in many cases, and that to some extent they contradicted each other and were internally contradictory - is most difficult to ascertain”.

11 Although his Honour used the term “the group” he found that it was not clear that the offenders acted as a group and did not find this to be the case. He found that some of the offenders acted individually and some acted in aid of one or more of the others.

12 The deceased was first incapacitated when his head made contact with a pole apparently causing significant injury. His Honour was uncertain how the injury occurred saying MD “somehow, in confrontation with the deceased, resorted to physical violence, and at least punched the deceased and at least, in some fashion, frightened, propelled, pushed, chased or herded the deceased, head-on into the pole. He sustained severe cerebral injuries and fell to the ground.”

13 His Honour recognised the difficulties he confronted in reaching any conclusion making this plain when he said “it is not at all clear how the deceased came to collide with the pole, whether he was forced or frightened into the collision.” Ultimately his Honour made the following finding:

“The evidence would support that he was propelled into the pole by his own motion ….”

14 His Honour added the words “possibly to some extent assisted by an attempt to push him or herd him.” However, the only finding which his Honour made, beyond reasonable doubt, was that the deceased was propelled into the pole by his own motion. Accordingly, the suggestion that he may have been pushed or herded into the pole can have no significance when determining the appropriate sentence.

15 The respondents NA and JT both admitted to assaulting the deceased after he had collided with the pole. BM did not assault the deceased but restrained a companion of the deceased from going to the deceased’s aid and assaulted that person.

16 Except in the case of BM, the pleas carried with them the admission made by the respondents that their actions constituted an unlawful and dangerous assault and contributed to the death of the deceased. In the case of BM his plea accepted that by his actions in assaulting a person going to assist the deceased, he contributed to his death. His Honour found that the actions of MD were of a greater degree of severity, a finding which was reflected in the ultimate sentence. Although the deceased died from the combination of acts done to him, his Honour found as he was bound to do, that it was not established that any of the offenders intended to cause the deceased serious harm.

17 We shall consider later the findings which his Honour made of specific relevance to each of the respondents.

Principles in relation to a Crown appeal

18 This Court has, on many occasions, taken care to emphasise the principles governing appeals by the Crown. They were clearly defined by Wood CJ at CL in R v Wall [2002] NSWCCA 42 where his Honour said:

“… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 449, applies to crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion as to the appropriate sentence, for that of a sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error or latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2001] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons” per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less from that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen para 62.”

19 Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said:

“The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified and the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred.”

20 In Dinsdale Gaudron and Gummow JJ said:

“In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been “upon the facts …. Unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law imposes in the court of first instance” was the sentence manifestly wrong”.” [22]

21 The sentencing statistics of the Judicial Commission, covering the period January 1998 to December 2004, reveal that not all persons convicted of manslaughter received custodial sentences. Of those that did the sentences imposed ranged from 18 months to more than 20 years. In relation to the non-parole periods or fixed terms, the range varied between 1 year and 16 years. The middle 80 percent of cases fell in the range of 2 years to 8 years. In respect of persons under 18 years there are few examples but the head sentences ranged between 5 years and 8 years and the non-parole periods between 30 months and 5 years.

The purpose of sentencing and the Director’s submission

22 Section 3A of the Crimes (Sentencing Procedure) Act 1999 provides as follows:

“The purposes for which a court may impose a sentence on an offender are as follows:

(a) to ensure that the offender is adequately punished for the offence,

(b) to prevent crime by deterring the offender and other persons from committing similar offences,

(c) to protect the community from the offender,

(d) to promote the rehabilitation of the offender,

(e) to make the offender accountable for his or her actions,

(f) to denounce the conduct of the offender,

(g) to recognise the harm done to the victim of the crime and the community.”

23 Having regard to the sentence or sentences imposed on each respondent the Director submits that the matters of the objective gravity of the offence, the subjective circumstances of each respondent and the application of s 18(1A) of the Children (Criminal Proceedings) Act 1987 have not been appropriately considered and applied by the sentencing judge. The Director submits that the sentences are accordingly inadequate to such an extent that this Court should intervene and resentence the respondents. Being unable to identify particular error in his Honour’s reasons on sentence it is the Director’s submission that the sentences imposed were unjust in the sense identified in Dinsdale.

Objective gravity of the offence

24 As the Crown has emphasised in its written submissions, the offence of manslaughter to which each of the respondents pleaded guilty in the present matter was serious. The attack was described by his Honour as “brutal and cowardly” and was in no way provoked by the deceased or his companions. His Honour found that the attack reflected “mindless brutality”.

25 His Honour found that the actions of the respondents were deserving of a sentence which marks out the gravity of their actions. The sentencing judge reflected these sentiments when he said:

“The community will not tolerate gang violence, nor will it tolerate individual assaults where those minded to commit brutal and cowardly acts upon persons who are merely innocuously passing by.”

26 It is clear that his Honour had these matters in mind when passing the individual sentences. We do not believe that it could be concluded from anything that his Honour said that he was not mindful of the gravity of the manslaughter offences committed by the respondents.

Section 18(1A) of the Children (Criminal Proceedings) Act 1987

27 At the date of the offences (31 December 2002) each of the respondents was under the age of 18 years. In his remarks on sentence his Honour referred to s 6 of the Children (Criminal Proceedings) Act 1987 and said at [32]:

“The principles I must apply to the sentencing for a serious children’s indictable offence is set out in the Children (Criminal Proceedings) Act . The offender is to be dealt with according to law which means he is to be sentenced in accordance with the provisions of the Crimes (Sentencing Procedure) Act. I must have regard, therefore, to the matters referred to in Div 4 of Pt 3 of the Children (Criminal Proceedings) Act which applies to serious indictable offences.”

28 His Honour then set out s 18(1A) of that Act which states:

“In determining whether a person is to be dealt with according to law or in accordance with Division 4 of Part 3, a court must have regard to the following matters:

(a) the seriousness of the indictable offence concerned;

(b) the nature of the indictable offence concerned;

(c) the age and maturity of the person at the time of the offence and at the time of sentencing;

(d) the seriousness, nature and number of any prior offences committed by the person,

(e) such other matters as the court considers relevant.”

29 His Honour included these paragraphs in consideration of the appropriate sentence for MD. It must be remembered that MD had pleaded guilty not only to manslaughter but also to an offence in relation to his taking of the mobile phone from the deceased.

30 Manslaughter is a “serious children’s indictable offence” (see s 3 Children (Criminal Proceeding) Act 1987 (NSW)). A “serious children’s indictable offence” is to be dealt with according to law; s 17 Children (Criminal Proceedings) Act 1987 (NSW). The indictable offence of steal from the person is not a “serious children’s indictable offence”. It is an offence that could be dealt with under the sentencing regime outlined in the Young Offenders Act 1997 (NSW) or the Children (Criminal Proceedings) Act 1987 (NSW) or alternatively (as was the case in the present matter) according to law by virtue of the application of ss 18 and 31 of the Children (Criminal Proceedings) Act 1987 (NSW).

31 We do not understand his Honour’s reference to the Children (Criminal Proceeding) Act 1987 (NSW) to indicate that he applied the principles outlined in s 18(1A) when sentencing for any of the manslaughter offences. Instead it seems to us that he brought these provisions to mind when considering the offence of steal from the person in relation to MD. This seems to us to be the clear inference available from the sequence of matters referred to by his Honour. This is plain from para 32 where in the second sentence his Honour stated that the offender is to be dealt with according to law. His Honour in the third sentence notes that those provisions apply to “serious indictable offences” (as opposed to “serious children’s indictable offences” and, therefore, the manslaughter offence).

32 It is evident from the sentences imposed that his Honour determined to deal with the steal from person offence in relation to MD and the common assault charges in relation to BM and JT according to law. His Honour sentenced these respondents to terms of imprisonment for these offences. Had his Honour not determined to deal with MD, BM and JT according to law for these offences, the respondents would have been sentenced to a period of control pursuant to the provisions of s 33(1)(g) Children (Criminal Proceedings) Act 1987 (NSW) rather than to a term of imprisonment.

33 We are satisfied that his Honour correctly applied s 18(1A) of the Children (Criminal Proceedings) Act 1987 (NSW) in the present case.

Subjective circumstances

34 At the heart of the Crown submissions is the proposition that his Honour has given excessive weight to subjective factors of the respondent being generally their youth, immaturity and prospects of rehabilitation. The Crown emphasises that his Honour said (at [38]):

“I accept that considerations of general deterrence, generally in the case of young persons, would receive less emphasis, having regard to issues of rehabilitation, than they would with adults. It is only because of the background reports and the absence of significant prior relevant criminality that I am minded to consider at their age – approaching as it did, adulthood – that the principle of general deterrence should receive less weight than will be afforded to it in the case of adults who had done the same as these boys did.”

35 During the hearing of the appeal, the Crown conceded that nothing in this paragraph in particular, or in the sentencing remarks in general, reflected error on the part of the sentencing judge in his approach to the fact that the respondents were all under the age of 18. The statement contained in the passage quoted above is a trite exposition of the principle generally applicable when sentencing young offenders. Had his Honour not approached the exercise of his discretion in this way, he would have been in error. The Crown’s real complaint is that the judge must have given undue weight to the age of the respondents and the impact of this fact in determining an appropriate sentence commensurate with the seriousness of their offending.

36 Although the Crown accepts that the respondents were at the date of the offence aged 17 and 9 months (NA), 17 years and 8 months (JT), 17 years and 2 weeks (MD), and 16 years and 9 months (BM), it is submitted that none of them have been demonstrated to have lacked sufficient maturity to appreciate the risk that they were taking by their actions. Although his Honour found that they were not acting as a group, the Crown submitted that each of them should have been aware that he was not alone in his role on the attack on the victim. It is submitted that the actions of the respondents were so brutal that, even given their lack of maturity, they should have appreciated the seriousness of their actions and have been sentenced accordingly. To a significant extent these submissions fail to pay regard to the specific findings of fact that the judge was required to make in accordance with the Crown’s acceptance of the pleas of guilty to the offence of manslaughter and fail to discriminate between the specific factual bases upon which each of the respondents was sentenced.

37 The Crown accepts that s 3 of the Children (Criminal Proceedings) Act 1987 defines child as any person under 18 years and accordingly the respondents stood to be sentenced in accordance with the provisions of that Act. However, it is submitted that the respondents in the present case could hardly be considered “children” in the normal colloquial sense of that word. The Crown emphasises that it has been stated that the growth from child to adult is a gradual process and for general deterrent purposes there is no significant difference between a person shortly under 18 years than a person shortly over that age (see R v Nguyen (unreported, CCA, 14 April 1994) and R v MA [2004] NSWCCA 92 at 30) offenders approaching the age of adulthood may attract less leniency in sentencing than their age might otherwise demand see R v Pham (1991) 54 A Crim R 128 at 135, R v Tran [1999] NSWCCA 109 at 10; see also R v AEM SNR and Ors [2002] NSWCCA 58 at 97-98, R v Webb unreported NSWCCA 12 September 1997 per Sully J at p 9.

Non-parole periods

38 The Crown submits that the non-parole period provided for each respondent reflects an overly generous finding of special circumstances. It is submitted that his Honour’s remarks reveal that factors already taken into account on the head sentence have again been considered by his Honour when imposing the non-parole period. The Director draws attention to the remarks of Spigelman CJ in R v Simpson (2001) 53 NSWLR 704 at 67 as to the need to guard against double counting because “the non-parole period must itself appropriately reflect the criminality involved in the offence” at [63]. In this respect the Crown refers to R v Dalton [2005] NSWCCA 156 where a sentence of 7 years imprisonment with a non-parole period of 3 years and 3 months, imposed on an 18 year old man for manslaughter, was increased on a Crown appeal to 9 years imprisonment with a non-parole period of 4 years and 8 months.

39 The Crown did not contend at the sentencing proceedings that it was not open to the sentencing judge to find special circumstances. To the contrary, the Crown conceded that the judge could make that finding on the material placed before him by way of reports and other evidence as to the personal circumstances of the respondents.

General observations

40 Whatever be the appropriate outcome of these appeals, it must be clearly recognised that the events of the relevant night were a very significant tragedy. The victim was peacefully engaged in lawful activity when he was attacked, assaulted by a number of young people, suffered severe head injuries and died. We have kept this firmly in mind in considering the Director’s submission that the trial judge’s sentencing discretion has miscarried.

41 Some of the factual findings made by the trial judge lack clarity. This is not a criticism of his Honour. The findings were made difficult by the fact that, when the Crown accepted the pleas to manslaughter, an agreed statement of facts had not been settled. There was unfortunately no written agreement as to the relevant facts produced before sentence was imposed. With respect, some at least of the Crown’s written submissions as to the factual basis upon which the Crown accepted the pleas of guilty and upon which the Crown agreed the trial judge should proceed to sentence lacked precision. Accordingly, his Honour was required to find the facts having regard to the extensive transcript (which, of course, did not contain all of the evidence which would have been given if the trial had continued to completion), any factual basis that was agreed between counsel for the respondents and the prosecutor and in a manner consistent with the pleas of manslaughter.

42 The difficulties confronting the judge, and to some extent the parties, in determining the factual basis of the pleas of guilty should not be underestimated. As could be imagined, there was a significant conflict and confusion in the accounts given by various witnesses of what they alleged that particular accused persons did in the events leading up to the death of the young victim. This was no doubt one of the difficulties that ultimately convinced the Crown that it was in the interests of the community to accept pleas of guilty to manslaughter rather than pursue the charge of murder. It should be noted that at the outset of the trial the Crown refused to accept a plea of guilty to manslaughter proffered by one of the four respondents but did so after a substantial part of the Crown case had been called before the jury.

43 The Crown case as presented to the jury on the charge of murder was that the respondents acted in a common purpose to inflict serious injuries upon the deceased and hence were responsible for his death regardless of the actual acts attributed to each one. In particular the Crown had to assert that there was a deliberate act of each of the respondents in participation of the common purpose committed with the intention at least that grievous bodily harm should be inflicted upon the deceased or was committed with reckless disregard to the risk of his death. No doubt part of the material relied upon by the Crown to prove the necessary mental element for the charge of murder concerned how the deceased came to suffer head injuries from his contact with a light pole in the vicinity of the melee.

44 But once the Crown determined to accept the pleas to manslaughter it had abandon to a very significant extent its original allegations. Similarly the judge was constrained by the pleas and the Crown’s acceptance of them as to the facts that he could find for the purpose of sentencing each of the respondents for that offence and not the offence of murder. This has led to a degree of artificiality in determining the facts that would justify a finding of guilt for manslaughter and that could be taken into account as the basis for the imposition of sentence for that offence and not for murder. Unless these matters are borne in mind it is likely that there will arise confusion between the Crown’s initial allegations on the charge of murder with the factual basis upon which the judge was asked to sentence the respondents on the charge of manslaughter.

45 Fundamental to that factual basis was that the plea in each case was proffered and accepted on the understanding that the respondents had not acted together in a common design to rob and kill the deceased. It was conceded by the Crown, consistent with its acceptance of the pleas to manslaughter, that they were not engaged in a joint enterprise with reckless disregard for whether they might kill the deceased or occasion him grievous bodily harm. This was a highly significant concession that the judge had to accept and act upon notwithstanding that on the face of it such a finding appears to be highly contrived and contrary to a common sense view of the facts leading to the killing. But it must be clearly understood that this was an unavoidable consequence of the Crown accepting the pleas of guilty to manslaughter.

46 Another highly significant matter is that each of the respondents was under the age of 18 when the offences were committed. That fact brought about a concession by the Crown that has considerable ramifications for the determination of this appeal. The question arose at the sentencing hearing as to the application of s 19 of the Children (Criminal Proceedings) Act 1987. The section is relevantly as follows:

19 Court may direct imprisonment to be served as a juvenile offender

(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.

Note. The effect of such an order is that the person to whom the order relates will be committed to a detention centre (see subsection (6)). There he or she will be detained as specified in the order. In certain circumstances, he or she may subsequently be transferred to a juvenile correctional centre pursuant to an order under section 28 of the Children (Detention Centres) Act 1987.

(2) A person is not eligible to serve a sentence of imprisonment as a juvenile offender after the person has attained the age of 21 years, unless:
(a) in the case of a sentence for which a non-parole period has been set—the non-parole period will end within 6 months after the person has attained that age, or
(b) in the case of a sentence for which a non-parole period has not been set—the term of the sentence of imprisonment will end within 6 months after the person has attained that age.

(3) A person who is sentenced to imprisonment in respect of a serious children’s indictable offence is not eligible to serve a sentence of imprisonment 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.

(5) A person who is subject to an order under this section that ceases or ceased to apply on the person attaining the age of 18 years may apply to the sentencing court for a further order under this section. Any such application requires the leave of the court.

47 This section provides a capacity for a court, when sentencing a person under 21 years of age, as the respondents were, to direct that the whole or any part of the term of the sentence of imprisonment be served as a juvenile offender. Section 19(2) and s 19(3) provide limits on the eligibility of an offender to serve a sentence in this manner. If sentenced to imprisonment for other than a “serious children’s indictable offence” (in the present case those offences other than manslaughter), the offender is not eligible to serve a sentence of imprisonment as a juvenile offender unless the sentence, or, if it be relevant, the non-parole period will end within 6 months after the person has attained the age of 21. However, in relation to a “serious children’s indictable offence” (and manslaughter is such an offence) the offender is not eligible to serve the sentence as a juvenile offender unless the non-parole period will end within 6 months after the person has attained the age of 18 years.

48 So in the case of each of the respondents, so far as the sentence for the manslaughter offence was concerned, the judge could not make an order under s 19 unless relevantly, either the judge was satisfied that there were special circumstances under s 19(3)(a) justifying the detention of a particular respondent as a juvenile offender after he had attained the age of 18 years, or the non-parole period would end within 6 months of the respondent attaining the age of 18 years.

49 It is accepted that service of a sentence within such a centre has significant benefits for an offender as against serving a sentence within the ordinary prison system. It was conceded by the Crown at the sentencing hearing that it was appropriate for the judge to structure the sentences imposed upon the respondents so as to give each of them the advantage of an order under s 19 with the result that they would serve their non-parole periods within a juvenile justice centre. However, as will appear shortly in these reasons, the concession made by the Crown and as acted upon by the sentencing judge had the practical effect of confining, to a very substantial degree, the discretion otherwise available to the judge in determining the sentences to be imposed upon the respondents.

50 This Court is not, and the sentencing judge was not, bound by the concession made on behalf of the Director: Malvaso v The Queen (1989) 168 CLR 227. However, that concession was made by a senior Crown Prosecutor of long experience who had carriage of the matter at trial. He should be taken to have had an understanding of what was the appropriate range of sentences available to the judge to sentence the respondents upon the basis of the accepted plea and the acknowledged facts in support of the plea. It is an important consideration in determining these appeals. Having regard to the principles which this Court must apply with respect to Crown appeals, it would only be in a most unusual case that the concession, quite properly not withdrawn by the Director in this Court, would be ignored in determining the outcome of this appeal.

51 The conduct of the Crown at the sentencing hearing, particularly where that conduct can be seen to have influenced the sentencing court’s assessment of the appropriate sentence to impose, is an important consideration that militates against a different sentence being substituted on appeal by the Crown: Malvaso per Deane and McHugh JJ at 240. The significance of the Crown’s stance before the sentencing judge on an appeal by the Director was most recently considered in R v Dawes [2004] NSWCCA 363 where Dunford J referred to the following statement from R v Allpass (1993) 72 A Crim R 561 at 565:

The Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course which was taken by the sentencing judge. The weight to be given to such a consideration depends on the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance.

In our view it is also of considerable significance where the respondents are young men of prior good character who have been given the benefit of a sentence to bring about a specific result in line with the Crown’s concession.

52 It is clear from the transcript of the sentencing proceedings that, after the Crown made the concession that the judge could structure the sentences to allow s 19 to apply to each of the respondents, counsel, including the Crown, addressed his Honour on the basis that the relevant point at which the respondents became ineligible to serve their sentences as a juvenile offender was age 21 years and an order could be made under the section provided that the non-parole period expired within 6 months of the respondents attaining that age. The Crown Prosecutor said:

“My understanding is this, and I don’t know that this would help, the way in which the section is to be interpreted is if your Honour imposes a sentence which means the non-parole period expires after they turn 21 years and six months, they then will be transferred to an adult prison”.

53 Our present understanding of the effect of s 19(3)(b) is that, in so far as the offence of manslaughter was concerned, each of the respondents was ineligible to serve his sentence as a juvenile offender unless the non-parole period of his sentence expired within 6 months after the respondent attained the age of 18 years. Although the respondents MD, BM and JT were sentenced for offences to which section 19(2) applied, so that the relevant date, so far as each of those sentences was concerned, was when the particular respondent attained the age of 21 years and 6 months, those sentences could not have determined the age at which each of those respondents became ineligible to serve his sentence as a juvenile offender under s 19(3) in respect of the manslaughter offence.

54 What appears to us to be an erroneous view of the operation of s 19 was continued by the Crown appearing on the hearing of the appeal. The Crown tendered a schedule indicating the date upon which each of the respondents would attain the age of 21 years and 6 months and indicating in each case what was described as the “additional term that could be imposed and still served in juvenile detention”. That period ranged from 9 days, in the case of NA, to 1 year 8 days, in the case of BM. The Crown in effect asked the Court to increase the sentences of each of the respondents within the relevant additional term set out on the document.

55 It is at least arguable that the orders made by his Honour that each of the sentences imposed upon the respondents be served as a juvenile offender was contrary to s 19. The non-parole period in each case extended past the date upon which the respondent turned 18 years and 6 months and the judge made no finding that he was satisfied that there were special circumstances under s 19(3)(a). However, the Crown did not seek to have the orders set aside, but to the contrary made submissions that would have the effect of leaving those orders in place. We therefore heard no argument on the proper construction and application of s 19 to the facts of this particular case.

56 While some might query the appropriateness of the concession and the correctness of it in accordance with the operation of s 19, the concession made by the Crown before the judge that it would be appropriate to sentence the respondents so as to give them the benefit of an order under s 19 necessarily carried with it a concession that, in relation to each individual respondent, a non-parole period that would expire no later than six months beyond his 21st birthday would be adequate to meet the sentencing objectives is of fundamental importance in the determination of these appeals.

57 It is also important to emphasise that the Director does not suggest that any error of fact or legal principle can be identified in his Honour’s reasons on sentence. The submission of the Director is that, the sentences being manifestly inadequate, this Court should intervene.

58 As a consequence of the trial in relation to JT proceeding the trial judge heard considerable evidence in the Crown case although his Honour had not heard evidence, if any, in the respondent’s case. The transcript of the trial was tendered at the sentencing hearing and was available, with other material, when his Honour made the relevant factual findings.

59 The trial judge found that the basis for alleging the crime of murder against each respondent was “in each case very weak indeed.” This was no doubt a consideration that led the Crown to change its initial response of rejecting the offer of one of the respondents to plead guilty to manslaughter.

60 Both this finding and the fact that his Honour was required to make factual findings consistent with the pleas of manslaughter and other matters conceded by the Crown had significance when the trial judge determined the appropriate sentences. These matters remain significant in these appeals.

61 The crime of manslaughter carries a maximum sentence of 25 years imprisonment (s 24 Crimes Act 1900). The felonious taking of human life has always been regarded by the law as a most serious crime. It could never be otherwise for the protection of human life must be a fundamental objective of any criminal law system in a civilised society R v Edwards (1996) 90 A Crim R 510.

62 It is important when sentencing an offender to reflect the objective seriousness of the crime concerned R v Rushby [1977] 1 NSWLR 594. The assessment of that matter depends on the factual findings made by the sentencing judge. When, as in the present matters, the factual findings of the sentencing judge are not challenged on appeal, the appeal court must consider the matter having regard only to those factual findings.

63 Because the sentencing process requires consideration of a number of matters, some of which indicate a greater sentence whereas others reflect concerns which would ameliorate the sentence, the task of the sentencing judge can be complex and difficult. For this reason it is common for courts to accept that there will be a range of sentences appropriate for any particular circumstances within a particular offence category. Provided the sentence that is imposed is accepted as falling within that range, the discretion of the sentencing judge will not have miscarried. If, however, the sentence is such that, having regard to all relevant matters, it falls outside the range, an error will be identified and an appeal court may intervene.

64 However, the High Court has recently again emphasised the importance of due weight being given to the exercise of the discretion by the sentencing judge. It has acknowledged, as this Court must, that there is no single correct sentence and judges at first instance must be allowed “as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies”: Makarian v The Queen (2005) 215 ALR 213 at [27].

65 In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, CCA 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.

Appeal with respect to MD

66 We have already referred to the findings of fact made by the trial judge which are of general relevance. Of particular relevance to MD are the following further findings:

· MD resorted to physical violence and punched the deceased.

· In some unidentified fashion, MD frightened the deceased into colliding with the pole.

· By reason of the plea to manslaughter MD admitted that his actions amounted to an unlawful and dangerous assault which contributed substantially to the death of the deceased.

· Although MD had an intention to unlawfully assault the deceased which would cause some physical harm, he did not contemplate that grievous bodily harm would be occasioned.

· Once the deceased had become incapacitated MD took a mobile phone from the deceased.

67 When considering whether or not the sentence was appropriate it is of significance that his Honour found that the offenders did not act in concert and that no finding could be made as to the cause of the violence which became an episode in mindless brutality. The Crown had retreated from its initial allegation that at least in part the attack upon the deceased was motivated by an intention to rob him.

Subjective factors relevant to MD

68 The following is a summary of the subjective factors relevant to MD.

a. He was 17 years of age at the time of the offence.
b. He had no relevant criminal record or antecedents.
c. His plea had some substantial utilitarian effect, his Honour allowing 10% for the value of the plea.
d. MD expressed genuine contrition.
e. Because of his genuine remorse and behaviour since the offence and in particular because he has significant community based support, MD has good prospects of rehabilitation to a non-offending lifestyle.

Was MD’s sentence manifestly inadequate?

69 The Director submits that his Honour has failed to impose a sentence which sufficiently marks the gravity of the offence and adequately recognises the need to deter others from committing similar acts.

70 There can be no doubt that by inflicting apparently random violence on the deceased in circumstances where he was sufficiently frightened or overcome that his head contacted the pole causing massive injuries is an act by MD warranting a sentence which marks the community’s abhorrence. Citizens in this community are entitled to go about their affairs without fear of being set upon and their lives threatened. The act of violence which occurred on this evening has no doubt justifiably provoked a sense of outrage in many people. The deceased, an innocent victim of mindless stupidity, lost his life. But as we have attempted to make clear, the sentence imposed upon each respondent had to reflect the particular act or acts relied upon as the basis of the offence of manslaughter and the culpability for the death of the deceased arising from the act or acts of that respondent.

71 MD was sentenced to 5 years and 6 months on the manslaughter count and 6 months on the stealing count, the aggregate sentence being 5 years and 9 months with a non-parole period of 3 years and 9 months. It should be noted that the sentence was reduced by 10 per cent to take into account the utilitarian value of MD’s plea of guilty. The undiscounted sentence was, therefore, about 6 years and 4 months.

72 If MD’s act had been that of an adult a higher sentence would undoubtedly have been appropriate. If in these circumstances an adult’s actions were not accompanied by remorse, a recognition that their actions were wrong, and there were prior convictions with poor prospects of rehabilitation there could be no doubt that a significantly greater term of imprisonment would have been appropriate. But even taking into account his youth and strong subjective circumstances, if it could have been shown that the respondent was directly and intentionally responsible for the impact of the deceased with the light pole, his culpability would have been such that a more severe sentence could not have been avoided.

73 The objective seriousness of MD’s assault upon the deceased must be assessed in light of the fact that there was no common design to rob or inflict serious harm upon the deceased. Furthermore, the respondents did not act as a group and no respondent concerted with another. None of the respondents had in contemplation that grievous bodily harm may be caused by their acts. Their actions appear to have been mindless and, perhaps because they were fuelled by alcohol and the high spirits of New Year’s Eve, undertaken without an appreciation of the harm they could bring. However, their punishment must be sufficient to deter others from similar violent conduct upon innocent members of the community. In particular young people must be made aware that the vulnerability of human beings requires restraint by others and a rejection of unprovoked violent assaults.

74 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.

75 Apart from the challenge made to the overall sentences, the Crown challenges the finding of special circumstances with respect to MD and, accordingly, the non–parole period which his Honour imposed. As counsel for the respondent pointed out there are many features which could justify a finding of special circumstances in MD’s case. The most significant are the factors which suggest real prospects of rehabilitation and reform. There are reflected in the following:

· An acknowledgement of circumstances and consequences;

· Compliance and reflection;

· Genuine remorse;

· Significant community based support including the prospect of full time employment upon release;

· Response to custody showing a positive attitude which suggests that he is on his way to a non-offending lifestyle when released into the community;

· Taking advantage of all offers whilst in custody to ensure positive options upon release;

· Positive progression through the classification system;

· Ability to comprehend the impact of his offending behaviour;

· Willingness to embark upon counselling and courses as required;

· Close and highly supportive relationship with his family;

All of these matters point to strong prospects of rehabilitation.

76 It is important, as the Director submits, to avoid allowing for the same subjective matters when determining both the non-parole period and the head sentence, otherwise there is the risk of double counting subjective factors. Further, the non-parole period must reflect the criminality involved in the offence R v Dalton [2005] NSWCCA 156.

77 The Crown also submits that the sentencing exercise miscarried by reason of the fact that the reports prepared by the Department of Juvenile Justice pursuant to s 25 Children (Criminal Proceedings) Act 1987 (NSW) and tendered in the proceedings contained errors. It is important to appreciate that it was the Crown that tendered the reports and at the sentencing hearing the Crown did not indicate that there was to be any dispute with regard to their contents and made no submission that they should not be given full weight. The other material tendered by the respondent was tendered by consent and without objection.

78 The present case is analogous to that in R v Elfar [2003] NSWCCA 358. In that case the Crown submitted that the sentencing judge had erred by accepting hearsay material favourable to the respondent’s case where the respondent did not give direct evidence of such matters. This Court noted that the Crown had not objected to the tender of the material and had not indicated that there would be any dispute in relation to it. For these reasons the Crown’s contention was rejected.

79 In our opinion, the same approach should be taken in the present case. It is important to appreciate that s 25 of the Children (Criminal Proceedings) Act 1987 (NSW) makes it mandatory that a background report covering the circumstances of the commission of the offence be tendered (s 25(2)(a)). It is also mandatory that the report address a number of subjective matters (reg 6). Accordingly, without the tender of the report in evidence sentencing error would occur. It could hardly be the case that a report which was mandatory could not be relied upon in the sentencing process. Of course, if errors are identified, this may suggest that the report should carry little weight.

Conclusions in relation to MD

80 The sentencing of offenders can present many difficult problems. The present matters are no exception. Although we are of the opinion that both the non-parole period and head sentence are at the lower end of the available range, we are not persuaded that the sentence imposed is such that this Court should intervene. Apart from the findings of fact to which we have referred and the relevant subjective matters, it is of significance that the Crown conceded that the sentences should be structured to give the offenders the benefit of s 19 of the Children (Criminal Proceedings) Act 1987. Although MD’s sentence and non-parole period could be increased without depriving him of the benefit of s 19, the maximum additional period that could be imposed on the non-parole period in accordance with the Crown’s concession would be 8 months and 8 days. Such an increase could not be justified in light of the principle of double jeopardy that requires this court to impose a sentence at the lower end of the range.

81 In any event once it is concluded, as we have, that the overall sentence was within the available range having regard to the factual basis upon which the judge was required to sentence the respondent, there could be no justification in altering the non-parole period bearing in mind the finding of special circumstances, a finding which the Crown at the sentencing proceedings conceded was open to the judge. The statutory ratio under s 44 between the head sentence and the non-parole period is 75 per cent – that is in this case a non-parole period of 4 years 4 months. The ratio between the overall non-parole period fixed by the judge and the aggregate head sentence is 65 per cent. Such a non-parole period was justified by the respondent’s subjective circumstances and adequately reflected the objective seriousness of the offence.

The appeal in relation to NA

82 Apart from the general findings to which we have referred his Honour also made specific findings in relation to the actions of NA which are not the subject of challenge. They included the following:

“The offender NA denied being party to any concerted assault but did accept that he pushed the deceased and punched him about four or five times when the deceased was on the ground and incapable of defending himself and was vulnerable. It is conceded by his plea that, in so punching the deceased these unlawful and dangerous acts contributed substantially to the deceased’s death.”

83 His Honour’s findings lead to the conclusion that NA’s actions must be viewed as an assault, in isolation from others without any intention of inflicting serious injury. Described in this manner, his actions are toward the lower end of the possible circumstances which could constitute the offence of manslaughter. This conclusion is a consequence of the basis upon which the plea was accepted by the Crown which meant that his Honour was bound to find that the respondents engaged in individual assaults and did not act in concert.

84 NA was sentenced to a term of imprisonment of 4 years and 6 months with a non-parole period of 2 years.

85 The subjective factors in NA’s case were significant. He had no relevant record and displayed genuine remorse and contrition. He has demonstrated a capacity for rehabilitation which is ongoing. It is unlikely that he will commit further offences.

86 It is of significance that NA entered a plea at an early stage but it was not accepted by the Crown. As noted below, NA must serve his sentence under more onerous conditions than the other respondents.

87 His Honour spoke of the letter which NA had written to the sentencing judge which was in evidence in the following terms:

“There was also provided the letter that he has written to me. I do not have any reason to doubt the truth of what he says in that letter. Although it was not evidence given in the witness box on oath its admissibility was not objected to by the Crown. Nor was its content challenged and it accords with the other material.

It refers to the four to five punches to the left side of the deceased’s jaw and cheek. It refers to his attack on the deceased as being an unthinking one. It refers to his contrition for the harm that he has done in contributing to the taking of the life and the blame he has put on himself for it. It is a letter which speaks very highly for his prospects of rehabilitation.

The submissions on his behalf note that he has been in custody since 14 October 2004 and that he accepts, by his plea, his responsibility for his individual actions, his punching, his contributing to the death of the deceased.

In the submission it is put that I would not accept that his punching occurred with knowledge that the deceased had been propelled, or had run into, the pole. The evidence does not allow me to conclude that he did see what MD had caused to happen but he was aware of the victim lying at the base of the pole, vulnerable.”

88 His Honour’s findings with respect to the nature of the offence committed by each respondent are, of course, applicable to the actions of NA. However, his acts of punching the deceased when he was on the ground reflect a callous disregard for the well being of someone who must obviously have been in extreme circumstances. The head sentence was outside the available sentencing range and was manifestly inadequate.

89 In particular the non-parole period was too short to reflect the objective seriousness of the offence. His Honour found that NA showed genuine contrition and remorse and had strong prospects for rehabilitation having a close and supporting family. His Honour also observed that the circumstances of NA’s detention were, and might be in the future, somewhat more onerous than would be the case with the other offenders. NA had been assaulted in custody and had remained highly anxious and emotional. His Honour’s finding that special circumstances existed was based on information contained in the intensive program unit appraisal, NA’s age and the nature of the offence. Even though all of these matters are significant, we believe that, but for the concession made by the Crown in respect of the application of s 19 of the Children (Criminal Proceedings) Act 1987, a greater period in custody before release to parole was required.

90 In the case of NA the concession made by the Crown has particular significance. Being born on 8 March 1985, any increase in the sentence that could be imposed and yet allow the respondent the benefit of an order that he serve the sentence in juvenile detention would be confined to nine days. But for that concession, we would have been inclined to intervene in the case of this respondent. His actions require a punishment which marks out his brutal disregard for the welfare of the deceased. The sentence does not achieve this. However, in light of the Crown’s concession, which was not withdrawn by the Director on the appeal, and given the caution that this Court must exercise in intervening on behalf of the Crown, we conclude that the sentence should not be disturbed.

BM

91 The sentencing judge did not accept that BM punched or kicked the deceased. His plea was not entered on the basis that he did a discrete act of an unlawful and dangerous kind to the deceased which substantially contributed to his death. His Honour found that:

“The basis of the plea was that what he did was to assault the companion in order to prevent the companion going to the aid of the deceased when the deceased was being assaulted by one or more of the other three. In that sense he gave active approval and encouragement and aided and abetted what was occurring. His offence is one of complicity rather than taking a primary violent role in the attack on the deceased.”

92 His Honour did not find that BM acted in concert with any of the others and elsewhere in the reasons on sentence his Honour said:

“His offence, as I have already referred to, was not one of applying direct physical violence to the deceased, but he stands convicted of two offences. They include complicity in the manslaughter, committed by assaulting the companion with a view to preventing the companion going to the aid of the deceased, and the offence of assaulting the companion. It is important, in proper application of sentencing principle, to have regard to how the elements of these offences overlap. In this case they overlap considerably. So far do they overlap that, although in each case I have fixed a sentence appropriate for the particular offence, I have determined that the sentences should be concurrent but it must be remembered that there is an additional component in the assault on Sean Clifford relevant to the overall sentencing that the motivation for that assault was not simply to assault the companion, but also to deter assistance being given to the deceased which is reflected in the manslaughter sentence.”

93 BM was the youngest of the respondents. He was aged 16 years and 9 months at the time of the offence. He had no previous criminal history. No doubt his immaturity was a factor in his actions that night. His Honour found that BM was genuinely remorseful and that he had good prospects of rehabilitation. He was the subject of stringent conditions, with which he complied, when he was on bail.

94 BM was sentenced to 4 years imprisonment and a non-parole period of 2 years in respect of the manslaughter charge. He was also sentenced to a fixed term of 6 months in relation to the common assault. On the face of it those sentences seem manifestly inadequate as punishment for a manslaughter offence of this nature. However, when regard is had to the peculiar and somewhat technical basis upon which the respondent accepted criminal liability for the death of the deceased and upon which the judge was required to sentence him, it is impossible to find that the sentence was unjust. On the factual basis upon which the respondent was to be sentenced, his culpability for the death of the deceased was at the very lowest end of the spectrum.

95 However, an error did occur in the sentences imposed upon this respondent that the court must address. His Honour said in his reasons on sentence:

“BM, for the offence of common assault you are sentenced to a six month fixed term to date from 14 September 2004. The back date is to reflect the regime under which you were held on bail. That sentence will expire on 13 March 2005.

For manslaughter you are sentenced to a full term of four years imprisonment to expire on 13 October 2008 with a non-parole period of 2 years to commence on 14 September 2004 and to expire on 13 September 2006. The concurrency is to reflect the overlap between the elements of the various offences.”

96 BM’s counsel accepted that his Honour intended that the manslaughter sentence, including the non-parole period, should commence one month after the sentence for the common assault offence commenced. The error is technical but should be corrected so that the non-parole period should commence of 14 October 2004 and expire on 13 October 2006.

JT

97 Apart from the general findings relevant to JT his Honour made particular findings which it is appropriate to set out:

“The offender, JT also denies being party to any concert to assault the deceased, but accepts that he kicked the deceased to the head at a time following the assaults on the deceased by MD and NA. The preponderance of evidence does establish in my view that he said at the time – ‘wake up’.

The submission has been put that I should accept that the kick was more in the nature of a nudge intended to rouse. I do not accept that it was of that little significance. I do accept that it was of sufficient violence to contribute substantially to the death of the deceased. It may be, although this is a matter for speculation, that JT thought that the deceased was shamming having been seriously affected by the earlier assaults and treated him in this way with a view to trying to bring him to his feet, but that has not been given in evidence. Nor indeed have any of the offenders given evidence themselves on their pleas.

I am not satisfied that the offender JT stomped on the head of the deceased. There is no evidence to that effect, nor any admission, to that effect. I accept however that the kick was intentional. I accept that it caused the harm to which I have referred.”

98 The difficulties facing his Honour in reconciling the respondent’s plea of guilty to manslaughter with the invitation, which his Honour accepted was offered to the deceased to “wake up”, are apparent. Nevertheless in accordance with the plea of guilty, his Honour found that the kick was deliberate and contributed substantially to the deceased’s death and his Honour was required to sentence the respondent on that basis.

99 Later in his judgment his Honour said:

“I turn to the last of the offenders JT. I have already referred to the actions of this offender. It does not appear that he had any prior involvement in the violence inflicted upon the deceased and it does not appear that the assault upon Mr Clifford was committed with some additional component of preventing Mr Clifford from aiding the deceased.

It is the Crown case in relation to JT that NA was in the process of punching the deceased when JT arrived on the scene. In effect he saw the deceased incapable and being punched in the head and thereafter kicked the deceased. The kick was one I find of some considerable violence, though I am unable to be satisfied that as a kick it was struck with full strength. It was intentionally done. Beyond that, the evidence really leaves one in some considerable difficulty and unable to make any finding of any further aggravating nature in the conduct.

Similarly there is little material that establishes with any clarity what he did to Mr Clifford. It is asserted he swung a punch which missed.

…

His action, as I have already said was simply one kick, and I accept he is to be sentenced not for repetitive damaging behaviour but for that one kick and for the assault on Mr Clifford. His kick, however, by his plea, he has admitted was at least to some substantial extent a contributing factor to the death of the deceased.

Thus it is that only one of the offenders did not directly, by violence, contribute to the death of the deceased, and that was BM. The deceased died as a result of the compound effect of multiple blows I cannot find that any one, much less JT in inflicting those blows had a realisation of any real harm being likely to be caused. That, however, is not to understate the fact that the harm was caused when the individual caused substantially contributing harm which produced the death of the deceased, but I have to sentence JT on the basis that, although he swung the kick and although perhaps a kick of that kind may be all the more serious than one or two punches it was one action as opposed to a number of actions.

There is no evidence which would establish that JT’s involvement prior to the kicking was in any way in concert with any of the others, although it was clear at the time that he kicked the deceased the deceased was lying disable and probably unconscious.

The assault on Clifford seems to be, as far as I can ascertain, such that I should not find it to be more culpable than swinging a punch at Clifford. I cannot find that it caused any particular harm to Clifford.”

100 This passage reflects the difficulty that his Honour faced in determining a set of facts that was consistent with the plea of guilty to manslaughter but did not amount to murder and yet was also consistent with the conflicting evidence before him as to the acts committed by the particular respondent. It emphasises the artificiality of the factual findings that were caused by the Crown’s acceptance of the plea of guilty to manslaughter on the basis that the respondents did not act in furtherance of a joint criminal venture between themselves.

101 We have already indicated that in this regard a serious difficulty arises from his Honour’s finding that the respondent said “wake up” at the time he delivered the kick and yet that isolated kick was the basis upon which the respondent had to be sentenced for manslaughter. In these circumstances, the sentence had to be imposed upon a finding that, although the kick may have contributed to the deceased’s injuries, it was inflicted without the intention of causing any real harm. That was the basis upon which the trial judge sentenced the respondent and the Crown does not assert that his Honour made any erroneous findings of fact.

102 JT was sentenced to imprisonment for 4 years with a non-parole period of 2 years 6 months for the offence of manslaughter. That sentence commenced on 3 April 2003 and the non-parole period expires on 3 October 2005. He was sentenced to a fixed term of 6 months for the offence of common assault, the sentence commencing on 3 January 2003 and expired on 3 July 2003. The aggregate sentence was one of 4 years 3 months with an overall no-parole period of 2 years 9 months.

103 The respondent’s subjective circumstances are similar to those of the other respondents. He was 17 at the time of the offences, having been born on 3 April 1985, and was taken into custody on 3 January 2003. Although there were, apparently, some problems early in his remand, these were rectified and he has taken the opportunity to complete various educational courses. His mother, sister and girlfriend have remained supportive of him. Apparently his early childhood left him without the benefit of a positive male model and he has lived in circumstances where he has been accustomed to some degree of violence around him.

104 Having regard to the psychological report provided on sentencing his Honour concluded that JT has reasonable prospects of rehabilitation, particularly in light of the further report from the Geraldton Anderson Walpole School at Kariong which points out that there is no discipline problem, that he was compliant, helpful, interested and motivated at all times.

105 In the case of this respondent the sentence imposed is in our view manifestly inadequate to punish the respondent having regard to the objective seriousness of the offence. This is notwithstanding that we accept that it was a difficult sentencing exercise arising from the acceptance of the plea of guilty to manslaughter and the conflicting accounts of what the respondent did to the deceased. But an intentional kick to the head of another person in a position where the victim was apparently injured and unable to protect himself is a serious criminal act regardless of its purpose or the intention behind it. Where it contributes to the death of the victim, it warrants a very significant punishment to denounce such conduct and to deter others. The sentence imposed does not in our opinion reflect the culpability of the respondent for the death of the deceased.

106 Of particular significance to the determination of the appeal is the fact that, because he was taken into custody on 3 January 2003, JT’s sentence expires on 3 October 2005. In these circumstances, if the appeal were upheld and he were to be re-sentenced, any further term would impose a significantly greater burden on him than if a longer sentence had been imposed initially. This is very significant matter to be weighed in the exercise of discretion where the respondent is a young man of no prior convictions serving his first sentence in custody. Notwithstanding the gravity of the offence, such an additional punishment could not be justified in all the circumstances of this case.

Order

107 Accordingly, we order that the appeal in each matter be dismissed but that the sentence in relation to BM should be varied so that the following sentence is imposed with respect to the manslaughter count:

“Sentenced to a full term of four years imprisonment to expire on 13 October 2008 with a non-parole period of 2 yeas to commence on 14 October 2004 and to expire on 13 October 2006.”

Note

108 We have raised a question about the validity of the orders made by the trial judge under s 19 of the Children (Criminal Proceeding) Act 1987. As we have made clear, the Court has not heard full argument on that issue and the Crown did not ask the Court to quash those orders. In the light of our comments some question may arise as the whether those orders are effectual. In that regard we note that, if those orders are taken to have ceased when the respondents attained the age of 18 years, the respondents can make an application to the Supreme Court for a further order under the section.

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