Regina v AB Regina v Clifford

[2005] NSWCCA 360

Reported Decision: 156 A Crim R 577

New South Wales

Court of Criminal Appeal

CITATION:	Regina v AB Regina v CLIFFORD [2005] NSWCCA 360
HEARING DATE(S):	5 October 2005
JUDGMENT DATE:	27 October 2005
JUDGMENT OF:	McClellan CJ at CL at 1; Grove J at 113; Hislop J at 114
DECISION:	In relation to AB; 1. Appeal allowed and the sentences imposed be quashed 2. In relation to count 1: the respondent is sentenced to imprisonment for fourteen years commencing on 26 July 2004 with a non-parole period of nine years and six months expiring on 25 January 2014; the balance of the term of four years and six months expiring on 25 July 2018 3. In relation to count 2: the respondent is sentenced to imprisonment for five years and six months commencing on 26 July 2003 with a non-parole period of two years and ten months to expire on 25 May 2006; the balance of the term of two years eight months expiring on 25 January 2009 In relation to Clifford; 1. Appeal allowed and the sentences imposed be quashed 2. In relation to count one: a sentence of imprisonment seven and half years commencing on 26 July 2003 with a non-parole period of four and half years expiring on 25 January 2008; the balance of the term of three years expiring on 25 January 2011 3. In relation to count 2: a sentence of imprisonment for three years commencing on 26 July 2003 with a non-parole period of one year and eight months to expire on 25 March 2005; the balance of the term of one year four months expiring on 25 July 2006.

CATCHWORDS:	CRIMINAL LAW - Crown appeal against sentence - murder and maliciously inflict grievous bodily harm - assessment of the objective seriousness of the offence - weight given to subjective circumstances - whether there was a failure to accumulate sentences - whether the finding that the respondent had not thought of the possibility that the shotgun might be discharged was inconsistent with the verdict of the jury
LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Hammoud (2000) 118 A Crim R 66 Johnson v The Queen (2004) 78 ALJR 616 Pearce v The Queen (1998) 194 CLR 610 R v MA [2004] NSWCCA 92 R v Baker [2000] NSWCCA 85 R v (Peter) Dunn [2004] NSWCCA 41. R v Gordon (1994) 71 A Crim R 459 R v Hearne [2001] NSWCCA 37, 124 A Crim R 451 R v Henry (1999) 46 NSWLR 346 R v Hopkins [2004] NSWCCA 105 R v KM [2004] NSWCCA 65 R v SDM [2001] NSWCCA 158 R v Melville (1956) 73 WN (NSW) 579 R v Musso [2002] NSWCCA 487 R v Nichols (1991) 57 A Crim R 391 R v Pham (1991) 55 A Crim R 128 R v Tran [1999] NSWCCA 109 R v Wall [2002] NSWCCA 42 R v Webster unreported, NSWCCA 15 July 1991 R v Wilkins (1988) 38 A Crim R 445 Roper v Simmons 543 US 2005 Veen v The Queen (No 2) (1988) 164 CLR 465 Weininger v The Queen (2003) 212 CLR 629
PARTIES:	The Crown (Appl) AB (Resp) Michael Douglas Clifford (Resp)
FILE NUMBER(S):	CCA 2005/1073; 2005/1071
COUNSEL:	P M Miller (Crown) A Haesler SC (AB) P Segal (Clifford)
SOLICITORS:	Solicitor for Public Prosecutions (Crown) Legal Aid Commission (AB, Clifford)

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	2004/41
LOWER COURT JUDICIAL OFFICER:	Adams J

2005/1073
2005/1071

McCLELLAN CJ at CL
GROVE J
HISLOP J

THURSDAY, 27 OCTOBER 2005

R v AB

R v Michael Douglas CLIFFORD

JUDGMENT

1 McCLELLAN CJ at CL: The Director of Public Prosecutions has appealed pursuant to s 5D of the Criminal Appeal Act 1912 against the sentences imposed on AB and Michael Douglas Clifford in relation to the death of Kane David Mason and infliction of grievous bodily harm upon Darren James Ward.

2 The indictment which was presented against the respondents in the Supreme Court at Port Macquarie on 22 November 2004 contained the following counts:

Count 1 :

For that they on 26 July 2003 at Macksville in the State of NSW did murder Kane David Mason – s 18(1)(a) Crimes Act 1900.

Count 2 :

Further that they on 26 July 2003 at Macksville in the State of NSW did maliciously inflict grievous bodily harm upon Darren James Ward with intent to do grievous bodily harm – s 33 Crimes Act 1900.

3 AB pleaded not guilty to the count of murder but guilty to manslaughter. The Crown did not accept this plea. He also pleaded not guilty to the second count. However, shortly after the trial commenced AB was re-arraigned at the request of his counsel and pleaded guilty to the murder count. In relation to the second count AB pleaded not guilty but guilty to the offence of maliciously inflicting grievous bodily harm. The Crown accepted this plea in discharge of this count. The sentence proceedings in respect of AB were then adjourned while the trial against Clifford continued.

4 Clifford pleaded not guilty to both counts. His trial continued and on 3 December 2004 resulted in his acquittal by direction on the charge of murder and the primary charge of maliciously inflict grievous bodily harm with intent to inflict grievous bodily harm. He was convicted of manslaughter and maliciously inflict grievous bodily harm.

5 The maximum penalty for murder under s 19A(1) of the Crimes Act 1900 is imprisonment for life. Under s 24 of the Crimes Act the maximum penalty for manslaughter is imprisonment for 25 years. With respect to the offence of maliciously inflict grievous bodily harm s 35 of the Crimes Act provides that the maximum penalty is imprisonment for 7 years.

6 The sentences imposed by the trial judge in relation to each respondent were as follows:

In relation to AB:

Count 1 (murder): imprisonment for 14 years commencing 26 July 2003 with a non-parole period of 9 years and 6 months expiring 25 January 2013; the balance of the term of 4 years and 6 months expiring on 25 July 2017.

Count 2 (maliciously inflict grievous bodily harm ): imprisonment for 5 years and 6 months to commence on 26 July 2003 with a non-parole period of 2 years and 10 months to expire on 25 May 2006; the balance of the term of 2 years and 8 months to expire on 25 January 2009.

In relation to Clifford:

Count 1 (manslaughter ): imprisonment for 6 years commencing 26 July 2003 with a non-parole period of 3 years, expiring 25 July 2006; the balance of the term of 3 years expiring on 25 July 2009.

Count 2 (maliciously inflict grievous bodily harm ): imprisonment for 3 years to commence on 26 July 2003 with a non parole period of one year and 8 months to expire on 25 March 2005; the balance of the term of 1 year and 4 months expiring on 25 July 2006.

Principles in relation to a Crown appeal

7 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 either 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 321, 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 than 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 at para 62.”

8 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 in 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.”[19]

9 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]

10 These principles should be applied when considering the present appeals. In particular it is important that this Court only intervene when error can be demonstrated and not merely because this Court would have been minded to impose a greater sentence than that which was imposed by the trial judge.

The facts

11 In the weeks leading up to the offence the respondents, who were friends, were residing together in a unit in Macksville. On the afternoon of 25 July 2005 four other friends gathered at the unit. Both respondents consumed a bottle of beer each. Some marijuana was shared amongst the group. At about 9 pm they bought a bottle of whiskey and a carton of beer and consumed that as well.

12 At about 10.30 pm Clifford produced a firearm that he had at the flat. It was an over-under double-barrelled shotgun. The gun was passed around the occupants of the house. Shortly after this, the gun was loaded. There was talk of using the gun against either a vehicle or persons. Clifford had been involved in a dispute with another person who lived in Wall Street. There was talk of using the gun to help sought out that dispute.

13 That same evening the deceased, Kane Mason, and his friends, the victim Darren Ward and Michael Becker had driven from Sydney to Macksville for the weekend. They arrived at approximately 10.30 pm. They went drinking in some of the local hotels and were joined by another friend, Sam Monk. When the Star Hotel closed at 1 am the group took a six pack of Bourbon and Coke and commenced to make their way on foot, heading south along Princes Street, to a party in West Street.

14 At about the same time the respondents left their flat taking with them the loaded shotgun. They travelled south along Matilda Street, which runs parallel to Princes Street. One of the female occupants of the flat ran after them but was told to return to the flat. A male occupant, Adam Gersteling continued to follow at a distance. AB then discharged the gun into the air. Pellets from this shot struck the house at 10 Matilda Street. The trial judge found that this shot was fired to frighten the girl. His Honour also found that another shot had been fired shortly afterwards when the respondents struggled for possession of the gun.

15 As they made their way along Princes Street Sam Monk and Darren Ward were walking together and slightly in front of Kane Mason and Michel Becket. As they came towards the intersection of Princes Street with Station Street, Clifford approached them. AB was at this time in the area adjoining the park and immediately behind some bushes.

16 As Ward walked passed him, Clifford mumbled something. Clifford then walked passed Mason and said something to him. Ward turned around and saw Clifford pushing Mason. Mason pushed back. Mason removed his shirt. Although they did not connect, punches were thrown. Clifford called out for assistance. AB responded and stepped from behind the bush and discharged the shotgun. A number of pellets struck Ward in the face and head area, with the remaining pellets striking the house at 38 Princes Street. Ward, who was temporarily blinded was grabbed by Monk and they ran up Station Street together.

17 AB continued up the road to where Mason was with Clifford. AB moved Clifford out of the way and when he was standing a short distance away from Mason discharged the second barrel of the shotgun striking Mason in the chest. Mason fell to the ground. Becker went to his assistance. He also rang 000. It was obvious that Mason had been killed. Proximity tests later conducted in relation to the firearm suggested that the muzzle of the gun was .5 to 1 metre from the deceased at the time of discharge. Ward was later taken to Coffs Harbour hospital. Upon examination he was found to have a number of wounds from shotgun pellets, including pellets that had lodged between his eyes and one that had lodged behind his brain. He was later transferred to Sydney Eye hospital for further examination and investigation.

18 Clifford ran from the scene and made his way back to the flat. AB also ran and as he did he threw the gun and the sock containing the ammunition on the ground. Another of their companions, Gersteling, who had been watching from a distance, followed AB and stopped to retrieve the gun and ammunition. He secreted the ammunition in the front yard of a house and ran to the area of Macksville railway station where he threw the shotgun into some long grass. The gun was later retrieved by the police and on inspection it was found to have a fired shotgun cartridge in each of its barrels.

19 AB eventually arrived back at the flat. He had a shower and at approximately 3 am he had a telephone conversation with a friend, Anthony Dunn. He told Dunn that Clifford had been in a fight with a fellow and that he, AB, had fired a warning shot and then had gone over and shot someone. About 30 to 40 minutes later AB met with Dunn and told him again that he had shot someone in the chest. Shortly after this AB left the flat and was driven to Port Macquarie to stay at a friend’s place.

20 Clifford was arrested at approximately 12.40 pm on 26 July 2003. He took part in a record of interview in which he said that during the course of the night he and AB had drunk half a bottle of whisky each, together with some beer. By the time they left the flat they were both drunk. He said that some fellow had said something to him and he had gone over and pushed him and they started to fight. The fight lasted a short time. Clifford said that AB came over and pushed him aside. He heard a shot and saw the fellow he had been fighting with holding his stomach. He then ran away. He told the police that he did not know that AB had the gun with him. Clifford also told the police that he knew nothing of the shooting of Ward.

21 AB was arrested at Port Macquarie at 7.55 pm on 26 July 2003 and was taken to Port Macquarie police station where he took part in an ERISP. He told the police that he had fired the first shot to frighten the girls off that were trying to follow him. He told the police that he had shot the deceased. He said that they weren’t going there, but then his mate ended up over there with four of them and they were yelling out and “he was yelling out me name.” He was in the park near the pond, some distance from Clifford when they “must’ve started into him” and Clifford started yelling. He fired one shot and this must have hit one of the men in the side of the face. He had reloaded the gun while Clifford was getting bashed. Clifford was yelling for him to get over here. The other man did not stop so he went over and pointed the gun at the man’s chest, shot him and took off.

22 AB said that he had given Clifford the gun to settle a debt he owed him over a car. They took the gun from the house because of a “fellow in Wall Street.” He said that they took the gun for safety, as the men in Wall Street were older and bigger, but they did not intend to use it. It was just to scare them. He could not remember who had taken the gun from the flat but it was probably him. Clifford had induced him to go with him and back him up.

Subjective features of the respondent AB

23 The respondent was 17 years of age at the time of the commission of the offence and 19 years at the time he was sentenced. His Honour had before him a number of reports including a report from Dr Jeremy O’Dea, a forensic psychiatrist, Dr Yolande Lucire, also a forensic psychiatrist, Mr Greg Fathers, a forensic psychologist, Mr Jeff Otto, Juvenile Justice officer and Miss Karen Clarke, a psychologist with the Violent Offender Program with the Department of Juvenile Justice.

24 AB’s father has three children from a former relationship and his mother five children, all significantly older than AB and his sister. All members of the family, including AB are aboriginal (by descent from their maternal grandmother) although they do not identify themselves in this way. AB’s father helped his mother raise her children, who resided with them and the new family. One of his half-brothers (DE), has undertaken an elder brother’s responsibility for a younger sibling and attempted to help AB during his teenage years and has continued supportive contact with him since the offence. He gave evidence for the offender at the sentence hearing.

25 The relationship between AB’s parents broke down permanently in mid 2001 after many short separations. The major reasons for this break-up was continuous domestic violence, accompanied by alcohol and other drug abuse. AB’s mother is apparently in receipt of a disability pension due to injuries she suffered during her marriage.

26 AB was brought up in a very small rural community with a population of less than 100. During his formative years his father would take him with him when he went working in the bush, the two of them returning home for weekends before going out the following week. AB’s father was a violent and in some respects disturbed individual. He was frequently violent towards AB’s mother in the presence of the children. His father often used firearms when making demands. Sometimes violence was instigated by AB’s mother, on one occasion attacking his father with a knife. There were not infrequent occasions of cruel violence towards animals, including one occasion when in the presence of the children (AB was then seven) the father shot the family dog for having taken a fowl, this despite the dog having sometime earlier saved some of the children from drowning.

27 AB and the other children were frequently subjected to physical and emotional violence at the hands of his father. AB started to resist his father from as young as ten years. When each of the children was around sixteen, their father required them to leave home, one of them at the point of a gun. Because of his mother’s concerns about AB’s drug consumption, he was sent to live with his uncle for six months at the age of ten. During this time there was a distinct improvement in his behaviour and he started responding positively at school.

28 AB left home at about the age of fourteen moving in with a cousin, with whom, and others, he drank and took drugs daily. His life was chaotic in almost every respect amounting to little more than finding enough alcohol and cannabis and, occasionally, amphetamines which he used until he “passed out.” He did not care about his personal hygiene or eating regularly. His accommodation was somewhat casual. At the time of the offence, AB was mostly living with his girlfriend, then in her mid twenties and pregnant at the time with their daughter who at the time when AB was being sentenced was aged twenty months. The relationship was tumultuous although apparently settled at the time of sentence.

29 AB’s mother reported the emergence of temper tantrums in AB at the age of ten. In early adolescence he began to emulate his father’s violence. When his mother attempted to discipline him for this, his father would assault her. Sometimes he paid AB as much as $50 for his inappropriate behaviour. When AB was twelve his father encouraged him to break into a shop and, as a reward, he was given a motorbike.

30 AB commenced using cannabis from the age of seven or eight. This was known to his father and he drew upon his father’s stored marijuana. By the age of twelve he was intoxicated on most days having started to drink alcohol when he was ten. By the time he was sixteen he described his use of alcohol as “really heavy.” He started to suffer blackouts frequently. At the age of eleven AB frequently used hallucinatory mushrooms, ceasing this practice when he was seventeen. From the age of fourteen AB started to experiment with amphetamines and reported using them monthly until he was seventeen. His father supplied him on at least one occasion. He occasionally used LSD when he was fifteen and sixteen years old.

31 AB had been employed as a fence post cutter from the age of twelve. He also worked for his grandparents from time to time and has undertaken other short term and seasonal employment.

32 AB left school in the first term of Year 8 when he was fourteen, having truanted for some of his primary school and most of his high school years. His parents seemed to be unconcerned about this. He had been suspended from attendance on a number of occasions for violence and smoking cannabis. When he left school he was semi-literate.

33 Psychological testing of AB demonstrated a cognitive impairment to a greater or lesser extent against almost every measure and suggestive of some frontal lobe damage, probably related to chronic intoxication to some degree since early childhood.

AB’s state of mind at the time of the offences

34 The trial judge was satisfied that it was likely at the time of the offence that AB acted impulsively and angrily. His Honour concluded that although he had deliberately loaded the gun in order to use it in some way, he intended his first shot to be a warning shot. Although his second shot was intended to kill, his Honour found that that was a momentary impulse at a time when AB was far from thinking clearly about what he was doing. His Honour found that was an act of drunken, confused rage, conclusions which were supported by the results of the psychological testing that he had undergone. His Honour said of these acts:

“AB’s background and psychological state by no means excuse the wickedness of what he did. But it bears a completely different complexion to a considered act or, indeed, to the impulsive act of a mature and mentally sound adult. AB was neither mature nor an adult, nor even as nearly adult as his calendar age indicated. The combination of his immaturity, psychological state and intoxication with a loaded firearm made him a catastrophe waiting to happen.”

35 His Honour considered the progress which AB has made since the offence and expressed the following conclusion:

“The offender is still relatively young. He will not go to an adult prison until he is twenty-one. Much that is positive has been done and much can still be done. The public interest in his rehabilitation is considerable, not only in terms of common humanity but also with the object of releasing him into the community as a person who is unlikely to offend, or at least not seriously, again. After he has served the non-parole period, it will be for the Parole Board to determine whether he can safely be released before the expiration of the balance of his term of imprisonment. I think that the prospects of rehabilitation are good and the sentence that I impose reflects this judgment.”

Clifford’s subjective circumstances

36 Clifford was nineteen years of age at the time the offence was committed and twenty-one years of age when he was sentenced. At the time of the commission of the offence he was on a twelve month s 10(1) Crimes (Sentencing Procedure) Act 1999 bond for malicious damage and assault.

37 Two psychiatric reports were tendered on his behalf. These indicate that his family circumstances were chaotic and marked by violence and physical abuse. His parents separated when he was two and Clifford lived with his mother. He said at the hearing that she has had numerous boyfriends during his childhood all of whom were physically abusive towards him and his mother. He has an older sister and two much younger half-sisters.

38 Clifford said that his mother used alcohol and cannabis episodically for most of her life and that much of the violence in the home was associated with alcohol abuse. He hated his mother’s boyfriends and was often beaten by them because he was trying to protect his mother. Between the ages of seven and eight years he was placed in a foster home for a few months.

39 Clifford attended ten different schools when growing up and remains essentially illiterate. He has not suffered a development disability but is of low average or border-line intelligence. He left school in Year 9 and commenced a series of short-term employment positions including work on a farm, in a demolition business and as a concreter. At the time of the offence he was unemployed and had been so for two months.

40 Clifford, who is addicted to cannabis admits using it since the age of fifteen years although the judge suspected he probably used it from an earlier time. He also admitted using amphetamines and “magic” mushrooms since sixteen. In July 2002 he was admitted as an involuntary mentally ill patient to the mental health ward at Coffs Harbour Hospital. The history in the hospital records discloses auditory hallucinations, paranoia and suicide threats. He was very fearful and said he was “sick” of hearing voices and people looking at him. He was angry and aggressive. The admitting doctor concluded that he was undergoing an amphetamine-induced psychosis with a secondary diagnosis of substance abuse disorder. He settled rapidly on anti-psychotic medication and was discharged three days later. He continued to take the medication for some weeks but continued to have auditory hallucinations and other ESP beliefs.

41 Following his reception into prison, Clifford exhibited ongoing psychiatric symptoms. In August 2003, after a psychiatric assessment, Dr Greenberg of the Corrections Health Service concluded that Clifford had been and was then suffering from a mental disorder for which treatment is available but he was not mentally ill.

42 Clifford has continued to exhibit mental health symptoms since being taken into custody and has been diagnosed as suffering from a functional major mental illness, probably that of schizophrenic illness or psychotic disorder. Dr Greenberg was of the opinion that Clifford’s mental illness probably played an indirect role in his mental state during the time period surrounding the offences. He considered he probably had residual paranoid ideation and low-grade auditory hallucinations at this time. He also had chronic low-grade depression.

Clifford’s state of mind at the time of the offences

43 The trial judge concluded that at the time of the relevant offence Clifford’s judgment and self-control were significantly adversely affected by both his mental state and the effects of intoxication which also affected his capacity to think clearly and make sensible judgments about what was happening or likely to happen. His Honour found that the immediate reaction of Clifford to the shooting was one of shock. His Honour found that he was very upset and frightened at the course of events. His Honour also found that Clifford did not feel responsible for what had occurred. However, his Honour concluded he was remorseful about his involvement in Kane Mason’s death and sorry that it occurred “quite apart from the punishment to which he has been subjected and which he is yet to receive.” His Honour found that Clifford’s prospects of rehabilitation are good and that there were signs that this has already commenced.

Other matters

44 Under the heading “Other General Factors” his Honour examined potential aggravating circumstances of the offence. His Honour found that the offenders had set out with a gun and ammunition upon a threatening excursion fraught with danger, but there was initially no suggestion of any intention other than to “shoot up” a motor vehicle. His Honour found that the crimes which were committed were “impulsive and unplanned.” His Honour expressly found that “the offenders never thought the gun might be used actually to injure someone.” However, his Honour also found that “it is clear that some use of the gun was contemplated, if for no other reason than that ammunition was taken. Who actually carried the ammunition from the house I cannot say. They were in company. They were a public danger. The offences were committed without regard to public safety.”

Sentencing principles applied by the trial judge

45 His Honour set out the principles which he understood to be appropriate to the sentences to be imposed. His Honour acknowledged the catastrophic consequences of the tragic events on the family and friends of Kane Mason and Darren Ward. His Honour acknowledged that the court must remain objective and dispassionate when sentencing.

46 His Honour identified the range of objective seriousness which could apply to acts of murder. He found that the murder committed by AB was of “a class towards the lower end of the scale” which should be reflected in the punishment imposed.

47 With respect to the harm inflicted on Ward his Honour noted the continuing presence of shotgun pellets. Because some remain in the eye socket and brain there is a significant possibility of the onset of epilepsy. The pain and distress which Ward has suffered have been extensive and will continue. His Honour observed that “the injuries are relevant to the gravity of the offence and are therefore to be taken into account in assessing its objective seriousness.”

48 His Honour found that the relative youth of the offenders was a relevant matter. His Honour said:

“Quite apart from the public interest in rehabilitation there may well be, and usually will be, a significant difference in culpability between an offender who is of a fully mature age and an offender who has not reached such an age: Hearne 124 A Crim R at 438, citing Allam (unreported) NSWCCA, 13 April 1993, WKR (1993) 32 NSWLR 447; 71 A Crim R 95. Of course, this is a matter of degree but the weight to be given to the element of youth does not vary depending on the seriousness of the offence, although “that is not to say that other factors such as deterrence or retribution may not have a relatively greater part to play in the more serious offences than they do in less serious ones”: Hearne 124 A Crim R at 458.”

49 His Honour also noted that the Court may take the course of imposing a sentence less than otherwise appropriate when an offender, though not legally insane, suffers from significant intellectual disability: Hearne at 458 [26]. His Honour concluded that the circumstances of the current respondents, particularly Clifford made it inappropriate for them to be used as an example for the purpose of general deterrence. His Honour concluded a discussion of these matters in the following terms:

“This tragic case bears all the hallmarks of immaturity: thoughtlessness, recklessness and foolish, impulsive bravado. Though both offenders were well aware that taking a loaded shotgun out into the streets of Macksville, intending to damage property and perhaps threaten those associated with it, was criminal behaviour, I do not think that they really appreciated the dangerousness of what they were doing and I accept that they never thought that anyone was in actual danger of injury, let alone death. Their psychological states, intellectual and emotional immaturity and intoxication contributed to this lack of reflection on potential consequences.”

50 His Honour then expressed the following conclusions:

“So far as AB is concerned, his crimes are far more serious, objectively speaking, than Clifford’s: he is guilty of murder, not manslaughter and he intended, though impulsively, to kill Mr Mason whilst Clifford not only did not have this intent but did not even contemplate this possibility; AB knew the gun was loaded but Clifford did not. Subjectively, AB is significantly younger than Clifford and his personal history perhaps more damaging to the development of stable emotions and self-control amongst other elements of personal maturity (though Clifford’s mental disorder is probably more deep-seated). Again, this does not excuse AB’s crimes, though in part it explains them. Even taking this factor into account, a significant degree of personal culpability remains deserving of substantial punishment, involving as it does the intentional killing of Mr Mason and inflicting substantial, long-term injury on Mr Ward.

When the altercation with Mr Mason and his friends was instigated by the angry self-indulgence of Clifford, his calling of AB to the scene was not – as I have already made clear – associated with any thoughts that AB might use the gun to injure anyone. This does not, by any means absolve him from responsibility for the results of his foolish aggression and his call for help with the advertence – confused, thoughtless and momentary as I hold it to be – that AB had the gun which might have been loaded and used, nor from the criminality as he well understood it of being an active participant in taking a loaded shotgun into the streets. The point that I am presently making was that this conduct was influenced and is in some part explained by Clifford’s relative immaturity and mental state. This, of course, is relevant to assessing the objective seriousness of his offences. It is, also, for the reasons I have already given, relevant to the measure and form of punishment that should be imposed on him.

In AB’s case, his plea of guilty should attract a utilitarian discount in accordance with R v Thomson & Houlton (2000) 49 NSWLR 383, 115A A Crim R 104. Having come very much at the last moment, but effectively before the trial commenced, he should receive at least a ten per cent discount on the sentence I would otherwise impose. However, I think that some greater allowance should be given because of the additional circumstance he was prepared to plead guilty to manslaughter and the reason for his not guilty plea to murder in the first place was the medical evidence then available to his advisers. When the Crown prosecutor provided the defence with the reports he had been given, the complexion of the case changed significantly as did (I apprehend) the advice given to the offender. The offender had indicated through his counsel to the Crown that the only real issue in the case was the possible application of s23A of the Crimes Act 1900. Taking the youth of the offender into account and the delay in the advice given to him about his plea, I have allowed a utilitarian discount in the order of fifteen per cent.

By virtue of 19(1) of the Children (Criminal Proceedings) Act 1987 the Court is empowered to make an order directing that the whole or any part of the term of the sentence of imprisonment of a person in the position of AB be served in a detention centre. I do not doubt that special circumstances require a departure from the statutory ratio between the formula relating to the non-parole period and the additional term. Essentially, these circumstances comprise his youth, his severely compromised upbringing, the fact that he will reach maturity whilst in a custodial institution and his need for supervision for a lengthy period upon his release.

So far as Clifford is concerned, special circumstances also exist that make it appropriate to vary the statutory ratio between the non-parole period and the additional term. These include his background, youth and psychological condition. It is clear that he will need an extensive period of supervision after his release.

Counsel have submitted that the crime committed on Mr Ward was so intimately connected with Mr Mason’s murder that the two offences should be regarded as a single criminal episode and thus the sentences should be concurrent. This, of course, is a matter of fact and degree, which in AB’s case I have not found easy to decide. He fired the gun twice within seconds in the course of involving himself in Clifford’s fight at Clifford’s call and the offence of murder (both as to result and the accompanying intention) is overwhelmingly the more serious crime. Although two very different and very serious injuries were caused, I have decided on balance that the sentences should be concurrently served. Clifford’s involvement in these offences is very different to AB’s and can only, I think, be properly considered as a single episode. The result in his case, that the sentences should be concurrent, strengthens my conclusion that the same result should apply to AB.

It is necessary to refer to the provisions of the Crimes (Sentencing Procedure) Act 1999. My account of the relevant factors in this case is calculated to refer to the matters to which the Act makes specific reference. I do not think it necessary to depart from or add to my discussion of the relevant objective and subjective features of the case by listing them against those provisions. Since I have determined that AB should have the benefit of a utilitarian discount, the “standard non-parole period” of twenty years in respect of the charge of murder does not apply except as one of the factors to be considered in sentencing the offender. This I have done. At all events, the circumstances of this case – both subjective and objective – will require a non-parole period sentence that in the result is significantly shorter than the standard period. In accordance with R v Way (2004) 60 NSWLR 168; [2004] NSWCCA 131, I have had regard to that term together with all the other material factors in the case.

I have referred in another judgment ( R v Pellew [2004] NSWCCA 434) to the fundamental conceptual problem of giving the notion “an offence in the middle of the range of objective seriousness” any meaningful content. I should candidly acknowledge that I have been unable to imagine what the present offence might have looked like had it been a case fitting that description. Moreover, this is a difficulty that, I think, is fundamental in the sense that a judge faced with any murder sentence would necessarily have the same problem. It follows that, whatever the right approach is, it cannot involve a process of this kind. It is, perhaps, worth nothing that the term “standard non-parole period” is not one in ordinary parlance. It is a statutory term with a precise and technical meaning (of some kind) considerably removed from the meaning it might have if it were not for the statutory definition. It is safe to say, I think, that it would convey no sensible content to any student of the criminal law apart from the statutory definition and, even then, its meaning is obscure. Of course, the legislation must be respected and obeyed and I do not suggest otherwise. But it must be rightly understood. Since it is so easy to slide from that very particular meaning to the sense it might have in the usual course of discourse in the criminal law, I thought it desirable to indicate its peculiar character by placing it in inverted commas.”

Grounds of appeal with respect to AB

51 The Crown submits that the sentence imposed on AB for the murder of Kane Mason was manifestly inadequate and was infected by three errors being:

1. His Honour erred in his assessment of the objective seriousness of the offence by AB in murdering Kane Mason.

2. His Honour erred in giving too much weight to the respondent’s subjective circumstances and too little weight to the seriousness of the offence and the need for deterrence, denunciation, punishment and community protection.

3. His Honour erred in failing to accumulate the sentences.

1. Objective seriousness

52 The trial judge found that AB intended to kill Kane Mason. It is plain that at the time he was intoxicated, probably significantly, and was affected by cannabis. Although his Honour found that the shotgun was taken into the street to frighten other persons and with the intent of damaging a motor vehicle it is plain that the weapon was loaded and that AB had fired it twice that night before he shot Ward and then Mason.

53 After AB had fired the gun it is apparent that he reloaded it. Other unfired rounds were found at the scene making it plain that AB had taken more ammunition than that which was fired. There can be no doubt that AB was aware of the possibility of violence that night and the gun was taken with that in mind.

54 The Crown emphasises that although AB was intoxicated on the relevant evening this was voluntary and self-induced. Accordingly, it is submitted that his Honour should have attributed to AB a large measure of responsibility for placing himself in the circumstances that he ended up in. The Crown accepts that his Honour found that AB’s judgment and capacity for self control was likely to have been adversely affected by his family and personal history. It is also accepted that these problems would have been substantially aggravated by intoxication. His Honour also noted that psychological testing had demonstrated a cognitive impairment in AB to varying degrees in almost every measure. However, the Crown points out that notwithstanding these problems AB was able to immediately flee the scene, discard the gun and ammunition and wash his clothes to get rid of any DNA. He then travelled to Port Macquarie all of which indicate that he was aware of the gravity of what he had done and was able to make rational judgments. The fact that the respondent fired a warning shot first is itself some evidence of his appreciation of the significance of aiming the weapon at someone. Although AB was 17 at the time, none of the reports suggested he was relevantly immature.

55 Although the Crown accepts that there was no plan to kill someone that night, it submits that violence of some sort was contemplated and planned for. It is submitted that his Honour’s categorisation of the shot that killed Mason as a momentary impulse seriously understates what occurred. Apart from the events which led to his companion’s encounter with Mason, AB reloaded the shotgun while the fight was going on, fired one shot from some distance away, which he described as a warning and when that did have the desired effect, walked some distance, pulled Clifford out of way and discharged the weapon at virtually point blank range into Mason’s chest. There was an obvious degree of deliberation in what AB. It is submitted that by identifying the criminality of the offence as being at the lower of the scale for murder his Honour failed to give adequate weight to the fact that the shooting occurred in a public street in circumstances where the victim was a stranger to him, and was a person who had offered him no violence or provocation. AB chose to intervene in a fist fight with a loaded firearm.

2. Subjective circumstances and the need for deterrence, denunciation, punishment and community protection.

56 The Crown emphasises that the trial judge devoted a significant part of his remarks on sentence to discussion of AB’s youth and its significance in the sentencing exercise. It is submitted that his Honour failed to appropriately balance AB’s youth with the seriousness of the offence. The Crown emphasises that this Court in R v MA [2004] NSWCCA 92 said at [27]-[29]:

“Deterrence, retribution and protection of the community are not to take precedence to the exclusion of rehabilitation, but neither is rehabilitation to take precedence over deterrence, retribution and punishment. All must be balance in the overall synthesising of the sentence.
It is true that in the case of young offenders, there is generally greater emphasis given to rehabilitation and less to deterrence than in the case of adult offenders, but that depends in part on the age of the young person and circumstances of the offence; and there comes a point at which the seriousness of the crime committed by a young offender, particularly if a crime of violence, is so great that the special attention normally given to rehabilitation in the case of young offenders must give way, and greater emphasis given to punishment and deterrence. The relevant principle was summarised in the joint judgment of this Court in R v AEM Snr & Ors [2002] NSWCCA 58 at [97]-[98] as follows:
‘It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation … However, important as that principle is, it cannot defeat the primary purpose of punishment nor, in circumstances where young offenders conduct themselves in a way which an adult does, can it stand in the way of the need to protect society.’”

57 See also R v Nichols (1991) 57 A Crim R 391 at 395 and R v Pham (1991) 55 A Crim R 128 at 135, R v Tran [1999] NSWCCA 109 at [9]-[11], R v Gordon (1994) 71 A Crim R 459, R v Hearne [2001] NSWCCA 37, 124 A Crim R 451 at [24].

58 The Crown further submits that although in an appropriate case mental disorder and abnormality in an offender may lessen the utility of making an example of that person, that principle will usually be applied where the offender has suffered from a significant mental illness or retardation. In the present circumstances where the offender obviously had an appreciation of the gravity of his conduct and where self induced intoxication was a significant factor in what occurred, it is submitted that less weight should have been given to AB’s psychological problems. In these circumstances it is submitted the sentence should have reflected the need to deter others and the respondent to a greater degree than it does.

3. Accumulation of the sentences

59 The Crown emphasises that because his Honour ordered that the sentence for the murder of Mason and the sentence for causing grievous bodily harm to Ward commence on the same day, the sentence for the lesser offence was wholly subsumed by the sentence for murder with the consequence that AB received no additional punishment for shooting Ward.

60 The Crown submits that although the two acts of criminality were part of a connected sequence of events, the fact that one shot was indiscriminately fired which hit Ward and that a second shot was deliberately fired at Mason required careful consideration of the separate aspects of criminality involved. It is submitted that there is a significant difference between assaulting one victim and assaulting two: R v (Peter) Dunn [2004] NSWCCA 41.

61 Although connected it is submitted that there were two distinct acts by AB, one designed to frighten, the other designed to kill and he should be sentenced accordingly.

Submissions on behalf of AB

1. Objective seriousness

62 On behalf of AB it was submitted that his Honour was correct to identify that the murder of Kane Mason fell at the lower end of the scale of objective seriousness. Nevertheless his Honour identified the offences committed by the offenders as being “very grave, AB’s offence in particular.”[31] It is also emphasised that his Honour had regard to the serious aggravating feature that “the offenders had set out with a gun and ammunition upon a threatening excursion fraught with danger.”

63 Counsel emphasised that it was important to have regard to the fact that AB had pleaded guilty and this, together with his youth, had the consequence that the standard non-parole period or a more severe sentence was not required. Attention was drawn to the decision in R v Hopkins [2004] NSWCCA 105 where the Court considered the objective seriousness of an offence where it also found that the mental state of the respondent was directly causative of the commission of the offence. The Court held that in circumstances where relevant considerations are incompatible it was not necessary that “the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative [23].” In the present case it was submitted that the trial judge was not obliged to prefer the objective seriousness of the offence to other relevant factors. He was not obliged to average relevant factors. He was properly entitled to give weight to some factors in preference to others: see Veen v The Queen (No 2) (1988) 164 CLR 465 and Weininger v The Queen (2003) 212 CLR 629 at [24].

64 The respondent’s counsel emphasises the fact that AB’s use of drugs and alcohol commenced when he was aged eight and ten years respectively. He was in effect, addicted well before he was old enough to exercise any reasonable free will in regard to his use of these substances. It is submitted that this case falls into the small category of case where intoxication can be used to mitigate the offence (see R v Henry (1999) 46 NSWLR 346 at [238] and [239]).

65 Finally it was submitted that all the factors to which the Crown draws attention were matters carefully considered by his Honour. Because reasonable minds might differ as to the weight to be given to those factors this Court should not intervene.

2. Subjective circumstances and the need for deterrence, denunciation, punishment and community protection

66 Counsel for the respondent emphasised that the trial judge carefully set out the respondent’s subjective circumstances, mental state and progress in custody. These factors included his disturbed and disrupted background, his abuse of drugs and alcohol from an extremely early age, his youth, his immaturity and his cognitive impairments. It is submitted that his Honour dealt with these matters in accordance with authority.

67 It was submitted that his Honour was correct in identifying the fact that where immaturity is a significant contributing factor to an offence, as in the present case, then it may fairly be said that the criminality involved is less than it would be in the case of an adult of more mature years (see R v Hearne at [26]).

68 Counsel emphasised that even for older offenders and heinous crimes, youth must remain a significant factor in sentencing (see R v Webster unreported, NSWCCA 15 July 1991). It was emphasised that in R v SDM [2001] NSWCCA 158 this Court stressed that there must be a balance of the relevant factors. Reference was also made to the decision of the United States Supreme Court in Roper v Simmons 543 US 2005. However, that was a case dealing with the death penalty and, to my mind, is not of significant assistance in the resolution of the present appeal.

69 Counsel also emphasised that it is not enough to simply assert that “the seriousness of the crime requires that the principle of consideration of youth must give way in the public interest.” Rather, one needs to identify the point:

“at which the seriousness of the crime committed by [a young man] is of such a nature, is so great, that that principle [the consistently pointed out need to give young offenders a chance and to refrain from sending them to gaol or dealing heavily with them if that course can be avoided] must, in the public interest, give way” Santow JA in JL C-H [2004] NSWCCA 70 at [25].

3. Failure to accumulate the sentences.

70 It was submitted that the trial judge carefully considered whether or not the sentences should be accumulated. In this respect reference was made to [82] of his Honour’s remarks which was in the following terms:

“Counsel have submitted that the crime committed on Mr Ward was so intimately connected with Mr Mason’s murder that the two offences should be regarded as a single criminal episode and thus the sentences should be concurrent. This, of course, is a matter of fact and degree, which in AB’s case I have not found easy to decide. He fired the gun twice within seconds in the course of involving himself in Clifford’s fight at Clifford’s call and the offence of murder (both as to result and the accompanying intention) is overwhelmingly the more serious crime. Although two very different and very serious injuries were caused, I have decided on balance that the sentences should be concurrently served. Clifford’s involvement in these offences is very different to AB’s and can only, I think, be properly considered as a single episode. The result in his case, that the sentences should be concurrent, strengthens my conclusion that the same result should apply to AB.”

71 It was submitted that the offences formed part of the same episode and accordingly, would ordinarily be regarded as concurrent (s 155 Crimes (Sentencing Procedure) Act 1999 and R v Melville (1956) 73 WN (NSW) 579 at 583).

72 Finally, it was submitted that the sentence imposed was proper and fits within the general pattern of sentences imposed on children and young persons for murder offences.

Conclusion in relation to AB

73 It is important to bear in mind the principles which must be applied to a Crown appeal with respect to sentence. However notwithstanding the caution which this Court must exercise I am satisfied in the present case his Honour’s sentencing discretion has miscarried. There are two problems. Firstly, with his Honour’s conclusion as to the objective seriousness of the offence and secondly with his Honour’s decision that the sentences for each offence should be served concurrently.

74 With respect to the seriousness of the offence an examination of his Honour’s remarks on sentence reveals that he was significantly influenced in his reasoning by AB’s youth and the undoubted impacts on his personality of his serious abuse of alcohol and drugs from an early age.

75 It is true that his Honour acknowledged that the offences were objectively very grave, in particular the offences of AB [31]. However, his Honour qualified this statement by reference to the various psychological matters and the fact that both AB and Clifford were intoxicated. His Honour said:

“It should be borne in mind that the particular mental capacity and frame of mind of an offender at the time of the offence, reflecting on his or her intentions, power of self-control and appreciation of the situation (especially of its dangers) are all part of what happened and why it happened as it did. In other words, they form part of the objective circumstances of the offence and are as much to be considered in the assessment of culpability as such things as (say) motive or planning.”

76 Although it may have been true that the mental capacity and frame of mind of AB could have been affected by intoxication and his psychological problems, he was nevertheless plainly aware of the consequences of his actions. After all, he had first fired the weapon in order to frighten the girl and then fired it again in order to frighten participants in the melee. Furthermore, he fired the fatal shot with, as his Honour found, the intention of killing Mason. He did so having pushed his companion out of the way and from almost point blank range. This was a deliberate act which both AB intended to be fatal and must have appreciated at the time would almost certainly be fatal.

77 His Honour’s remarks at [31] must be considered together with his remarks at [71]. At [71] his Honour concluded that although all cases of murder are very serious the present case fell towards the “other end of the scale.”

78 To my mind, this conclusion cannot be accepted. I am satisfied that his Honour has allowed the impairments from which AB suffers to impermissibly diminish the serious criminality of the offence of murder which he committed. Although his Honour concluded that he could not find that AB left the premises with the gun with the intent of injuring someone it is plain that he had in mind using the weapon. His lack of care for the safety of those around him was demonstrated by the fact that he fired “warning shots” and when the melee broke out fired a “warning shot” which struck Ward in the face and body. Having fired that “warning shot” he then set about killing Mason. It was a brutal and deliberate act which destroyed an innocent young person’s life. It could not be described as falling towards the lower end of the scale of murder.

79 If this was the only problem with the sentence I may not have been inclined to interfere. However, to my mind there is a further difficulty. His Honour found that the two offences should be regarded as a single criminal episode accepting that this was a “matter of fact and degree which in AB’s case I have not found easy to decide.”

80 In reaching this decision his Honour may not have had in mind the caution which must be exercised when a criminal escapade involves consequences for more than one victim. In these circumstances there is a special need to ensure that by imposing concurrent sentences insufficient recognition is not given to the fact that more than one victim has been impacted by the criminal activity.

81 In Pearce v The Queen (1998) 194 CLR 610 at [45] McHugh, Hayne and Callinan JJ said:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality.”

82 As was pointed out in R v KM [2004] NSWCCA 65 the approach in this Court has been that “the principle in Pearce has been applied and followed as “imperative and authoritative direction from the High Court to sentencing judges”; R v Musso [2002] NSWCCA 487 at [31] per Sully J. In Hammoud (2000) 118 A Crim R 66 at [67] Simpson J (with whom Mason P agreed) said that as a result of Pearce the question of whether to accumulate sentences for multiple offences had taken on “a new dimension” and that previous sentencing practices which avoided the need for “elaborate exercises in the accumulation of sentences” could no longer be followed. Accordingly, it is necessary to fix an appropriate sentence for each offence before considering questions of accumulation, concurrence or totality.”[52]. However, the imperative recognised in KM has apparently been qualified, but to a limited degree, in the majority decision in Johnson v The Queen (2004) 78 ALJR 616 [26].

83 It is not apparent from the trial judge’s remarks that he followed the process required by Pearce when determining the sentences for each respondent. However, having regard to the careful structure of his Honour’s reasons it may be that consideration was given to these matters by his Honour after determining the appropriate sentence but before publishing his conclusions.

84 Accepting that his Honour followed the required reasoning process I am nevertheless satisfied that error has occurred. The act of firing the gun towards persons involved in the melee, even for the purpose of frightening them, was an act of such significant criminality that it cannot be subsumed in the subsequent act of murder. Although his Honour imposed a significant sentence, five years and six months for the offence of inflicting grievous bodily harm, for which the maximum sentence was seven years, the effect of his Honour’s decision to make that sentence concurrent with the sentence imposed for murder, to my mind, failed to reflect the seriousness of the offender’s individual crimes and of his conduct as a whole. The fact that the weapon was discharged twice in circumstances where significant injury was done to one person and death occasioned to another, to my mind, required that an identifiable period of imprisonment should be imposed for each offence.

85 I am satisfied that the appeal should be allowed. Having regard to the relevant principles when resentencing following a Crown appeal the task of determining the appropriate sentence is necessarily constrained. I am satisfied that the sentence for murder should not be increased but that it should be ordered to commenced on 28 July 2004 with the effect that AB will spend an extra year in custody.

The Crown submissions in relation to Clifford

86 The Crown submits that the sentences imposed on Clifford were manifestly inadequate and affected by the following errors:

1. His Honour’s finding that the respondent had not thought of the possibility that the shotgun might be discharged was inconsistent with the verdict of the jury.

2. His Honour erred in giving too much weight to the respondent’s subjective circumstances and too little weight to the seriousness of the offence and the need for deterrence, denunciation, punishment and community protection

3. His Honour erred in failing to accumulate the sentences.

1. The finding in relation to Clifford’s belief as to the possibility that the shotgun might be discharged.

87 At [17] of his remarks on sentence his Honour said:

“Perhaps more appropriately phrased, it could not be concluded beyond reasonable doubt that a reasonable person would think it a risk that AB might do what he did to Mr Mason. I have no doubt that Clifford did not for one moment advert to such a possibility. I am sure that it came as a complete shock as, indeed, it had to CD. Moreover, I have concluded that Clifford did not think at any time of the actual possibility that the shotgun might be discharged . As actual advertence to these possibilities is a matter that must be adverse to the offender and, therefore to be proved beyond reasonable doubt if it is to be used against him, it is not necessary that I should be positively satisfied that he had not such an advertence in order to sentence him on the basis that he did not. However, I think it appropriate to state my conclusions about this matter. It follows that I should sentence Clifford upon this view of the facts.” (emphasis added)

88 The Crown submits that his Honour’s conclusion in the sentence I have emphasised cannot be reconciled with his Honour’s directions to the jury. In his summing up on 2 December 2004 at pages [41]-[57] his Honour directed the jury on the elements of manslaughter by an unlawful and dangerous act and said at [49]:

…crucially here there must be advertence by him to the risk that the gun might be fired. He must not only think it was loaded but that it might be fired.”

89 The Crown points out that at [15] of his remarks on sentence his Honour said that, having regard to the way in which he had directed the jury on the elements of manslaughter, he would sentence on the basis that the jury had found beyond reasonable doubt that when he called on AB to help he adverted to the possibility, both that AB might have the shotgun and that it might be loaded, despite his Honour’s misgivings about the correctness of that conclusion. The Crown submits that this statement was in accord with his original directions to the jury but that his Honour seems to have overlooked those matters in his later remarks in [17].

90 The Crown submits that having regard to the direction his Honour gave the jury must have found beyond reasonable doubt that Clifford had thought of the actual possibility that the shotgun might be discharged and it was necessary for him to be sentenced on that more serious view of the facts.

Submission on behalf of Clifford

91 Counsel on behalf of Clifford submits that although it must be accepted that his Honour directed the jury in terms that “he must not only think it was loaded but that it might be fired,” this set the level of his intention higher than it need have been. The level of intention need only have been an advertence to the risk that AB might have the gun and that the gun might be loaded. It is submitted that there is no basis for assuming that the jury necessarily arrived at their verdict on the higher level of culpability given the totality of the summing up. It is pointed out that although his Honour adverted to the fact that the “gun might be fired”, this was included only when his Honour thought he had made an error when preparing the written direction.

92 Counsel also points out that during discussion at the conclusion of the summing up his Honour heard submissions from the Crown as to the appropriate directions on this issue. The Crown contended that advertence to discharge of the gun was not required and his Honour responded:

“… the difference is more apparent than real because if you are going along the line of thought the gun might be loaded it is almost at the same step and it might be fired. After all, even if you think the gun might be loaded but he might not fire it you are, by that, admitting he might well fire it. So I think the distinction is more apparent than real … “.

93 It is submitted that his Honour’s remarks on sentence reveal that he was conscious that where a person’s decision may be affected by alcohol, drugs or mental illness they are to be seen as less culpable than when decisions are made coolly and with deliberate purpose. His Honour’s remarks should be understood as finding that the incident came as a surprise to Clifford, his “advertence” was treated as being fleeting and therefore less morally culpable than that of a fully reasoning and calculating person. His Honour observed “it happened almost instantaneously.”

94 Finally, it is submitted that even if his Honour did make an error, this Court should not disturb the sentence imposed. It is submitted that there is inherent in the concept of moral culpability relating to a gun being loaded, the prospect that it might be discharged. Otherwise, the fact that a gun might be loaded would be irrelevant.

2. The weight given to subjective circumstances compared with the need for deterrence, denunciation, punishment and community protection.

95 Under this heading the Crown submits that having regard to the directions which his Honour gave to the jury, when the respondent called on AB to help him he intended that AB would threaten violence to someone knowing or believing that AB would bring the shotgun with him and use it to threaten violence. He must also have adverted to the possibility that it might be fired. He must have known that AB was intoxicated. Effectively AB and Clifford had armed themselves with the gun and set out with violent intentions. AB had already fired the shotgun twice. As his Honour commented the respondent was instigating a risk of serious danger which resulted in a death and was a serious crime.

96 It is submitted that the shooting of Ward was also objectively serious and the respondent’s culpability for it was equally grave. His Honour found that the initial altercation was instigated by Clifford’s angry self-indulgence in circumstances where he appreciated that AB, who he knew was carrying a loaded gun, would be likely to become involved.

97 In relation to the respondent’s age, although this was a matter to be considered, it is submitted by the Crown that the intoxication of Clifford was voluntary and self-induced. With respect to Clifford’s mental illness it is submitted that it was not shown how this may have impacted upon Clifford’s ability to know what he was doing or appreciate the gravity of what was occurring. It is submitted that his Honour gave too much significance to these matters in assessing the objective seriousness of the offences.

The submissions of the respondent in relation to ground 2

98 Counsel for Clifford accepts that his Honour found that the acts of Clifford in instigating such a serious risk of danger is a serious crime. However, his Honour also found that the gravity of the matter must be mitigated by the fact that he considered “no reasonable person would or could have expected that, in the circumstances here, AB would have intentionally fired the gun either to kill or cause serious injury to any person … .”

99 It is submitted that his Honour was correct in weighing the objective seriousness of the offence with the difficulties Clifford faced with mental illness and drug and alcohol dependence. Considered with the youth of the offender it was submitted that the sentence imposed was not outside the appropriate range.

3. Should the sentences be accumulated?

100 Under this ground of appeal the Crown makes the same submission which it made in relation to AB. It is accepted that although Clifford only did the one act, calling in AB, it is submitted there were two victims and two different serious consequences. The injuries suffered by Ward were serious and merited separate and additional punishment.

101 The Crown submits that in the circumstances it is not surprising that more than one person was shot. However, it is submitted that it is perhaps fortunate that more people were not injured given the nature of the weapon involved and the fact that there were several people nearby in a public street. Although the respondent should not be doubly punished it is submitted that his punishment should recognise the actual consequences of his actions: see R v Wilkins (1988) 38 A Crim R 445 per Lee CJ at CL at 450.

The submissions of the respondent on ground 3

102 Counsel for Clifford submits that although there were two offences they should be considered to have arisen under the one actus reus, that is calling for help in unlawful circumstances. It is submitted that the offences are not of a different character and occurred at substantially the same time. Importantly, counsel pointed out that during the address on sentence the matter was raised when his Honour said:

“HIS HONOUR: Mr Crown what do you say about Mr Golding’s submission that the sentences should be concurrent?

103 Mr Barnett, on behalf of the Crown, responded:

“BARNETT: I have a deal of difficulty resisting that your Honour for one reason. As the case ultimately finished and as it was left to the jury it’s the one call that produces … two consequences ..”

104 In light of this concession it is submitted that the Crown submission that concurrent sentences were inappropriate should not be accepted.

Further submissions on behalf of the respondent

105 Apart from the matters submitted in direct response to the Crown submissions further matters are raised on behalf of Clifford. It is submitted that because the trial judge was in the best position to determine the atmosphere of the trial and he took a strong view that the full consequences of the crimes were totally unexpected and came as a surprise, this finding should play a significant part in consideration of this appeal. The offences being unplanned it is submitted that the sentence imposed on Clifford was not inappropriate.

106 Furthermore, no complaint is made by the Crown as to the length of the penalty for the offence of maliciously inflict grievous bodily harm for which the non-parole period has already expired. It is submitted that as the respondent is within sight of the end of the non-parole period for manslaughter, it being about nine months hence, and having regard to his emotional and intellectual limitations, he would find it onerous to adjust to an extended time in custody.

Conclusions in relation to Clifford

107 In my opinion, the submission of the Crown in relation to grounds 1 and 2 should be accepted. Having regard to his Honour’s direction to the jury it must be accepted that Clifford not only believed the gun was loaded but also believed that it might be fired. Accordingly, his Honour’s finding that Clifford did not think at any time of the actual possibility that the shotgun might be discharged was not open.

108 I do not accept the submission on behalf of Clifford that there is no real distinction between the two concepts. It seems to me a different degree of criminality attaches to the circumstances where, although a gun was present the offender did not believe it might be discharged, compared with the circumstance where he believed it might be fired. In these circumstances the calling of AB to his aid had the consequence that he was asking AB to assist him in the melee in circumstances where he knew that he was carrying a gun which might be discharged. To my mind, this carries with it a very significant degree of criminality in relation to both charges.

109 Having regard to the fact that by his aggressive conduct Clifford had initiated the altercation, the request for aid from Clifford carries with it a significant degree of criminality justifying a greater sentence than was imposed by the trial judge. That sentence should mark out the Court’s abhorrence of violence in circumstances where a loaded gun is introduced to a physical melee. It is, of course, necessary to have in mind the subjective matters found by the sentencing judge and the further affidavit evidence tendered on this appeal.

110 With respect to the matter of concurrent sentences, I am satisfied that having regard to the concession which the Crown made during the sentencing hearing that it would not be appropriate for this Court to intervene if that was the only matter in issue.

111 To my mind, the appropriate sentence for the count of manslaughter was a sentence of nine years. However, having regard to the principles which this Court must apply when resentencing following a successful Crown appeal I propose a sentence of seven and a half years. I am satisfied that the finding by his Honour of special circumstances was appropriate but am of the opinion that a non-parole period of four and a half years should be imposed. In the circumstances I would not interfere with the sentence imposed in relation to the lesser charge.

112 Accordingly, the orders I propose are:

In relation to AB:

1. Appeal allowed and the sentences imposed be quashed.
2. In relation to count 1: the respondent is sentenced to imprisonment for fourteen years commencing on 26 July 2004 with a non-parole period of nine years and six months expiring on 25 January 2014; the balance of the term of four years and six months expiring on 25 July 2018.
3. In relation to count 2: the respondent is sentenced to imprisonment for five years and six months commencing on 26 July 2003 with a non-parole period of two years and ten months to expire on 25 May 2006; the balance of the term of two years eight months expiring on 25 January 2009.

In relation to Clifford:

1. Appeal allowed and the sentences imposed be quashed.
2. In relation to count one: a sentence of imprisonment seven and half years commencing on 26 July 2003 with a non-parole period of four and half years expiring on 25 January 2008; the balance of the term of three years expiring on 25 January 2011.
3. In relation to count 2: a sentence of imprisonment for three years commencing on 26 July 2003 with a non-parole period of one year and eight months to expire on 25 March 2005; the balance of the term of one year four months expiring on 25 July 2006.

113 GROVE J: I agree with McClellan CJ at CL.

114 HISLOP J: I agree with McClellan CJ at CL.

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