Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v WEST, Justin [2011] NSWCCA 91
• Hearing dates: 25 February 2011
• Decision date: 12 April 2011
• Jurisdiction: Common Law - Criminal
• Before: Whealy JA at [1]; Hidden J at [2]; Johnson J at [34]

Decision

(By majority) appeal allowed, sentence quashed. In lieu, respondent sentenced to imprisonment for NPP of 3 years, from 4 September 2009 to 3 September 2012, with a balance of term of 3 years, from 4 September 2012 to 3 September 2015.

• Catchwords: CRIMINAL LAW - sentence - Crown appeal - manslaughter - 18 year old offender - spontaneous killing while intoxicated - sentence of 6 years, non-parole period 2 years - disproportion between non-parole period and head sentence - whether non-parole period manifestly inadequate
• Legislation Cited: Crimes (Sentencing Procedure) Act 1999; Crimes (Appeal and Review) Act 2001
• Cases Cited: Bugmy v the Queen (1990) 169 CLR 525; Wilson v The Queen (1991-2) 174 CLR 313; R v Cramp [2004] NSWCCA 264; R v Harris [2007] NSWSC 1417; R v Kennedy [2008] NSWSC 703; R v Mills [2009] NSWSC 521; R v Doolan [2010] NSWSC 615; R v Hamshere [2005] NSWSC 1319; R v Hearne [2001] NSWCCA 37, 124 A Crim R 451; R v Burton [2008] NSWCCA 128; R v Carroll [2010] NSWCCA 55; 200 A Crim R 284; R v MD [2005] NSWCCA 156; A Crim R 372; R v Simpson [2001] NSWCCA 535; 53 NSWLR 704; Hejazi v R [2009] NSWCCA 282; Maglis v R [2010] NSWCCA 247; R v Ceissman [2004] NSWCCA 466; R v Fidow [2004] NSWCCA 172; R v JW [2010] NSWCCA 49; 199 A Crim R 486; R v Dinh [2010] NSWCCA 74; 199 A Crim R 573
• Category: Principal judgment
• Parties: Regina (Crown); Justin WEST (respondent)
• Representation: Counsel: J Girdham (Crown); C T Loukas (respondent); Solicitors: S Kavanagh (Solicitor for Public Prosecutions) (Crown); S E O'Connor (Legal Aid Commission) (respondent)
• File Number(s): CCA 2009/201029

Decision under appeal

• Date of Decision: 2010-09-14 00:00:00
• Before: Finnane DCJ
• File Number(s): 2009/201029

Judgment

1 WHEALY JA: I agree with Johnson J and the orders he proposes.

2 HIDDEN J: This is a Crown appeal against the sentence passed upon the respondent, Justin West, for manslaughter. Having pleaded guilty to that charge in the Local Court, he was committed for sentence in the District Court at Orange. There he was sentenced to imprisonment for 6 years, comprising a non-parole period of 2 years and a balance of term of 4 years.

Facts

3 The sentencing judge described this as "a particularly sad case that illustrates just what can happen when people engage in long drinking and drugging sessions." A sad case it certainly was. The respondent was 18 years old at the time of the offence. The victim, Justin Milides, was 19. He had been in a relationship with the respondent's 22 year old sister, Korrine West. She has four children. An agreed statement of facts recorded that Mr Milides was the father of all of them, although other material conveys that he was the father of all but one.

4 The offence occurred on 4 September 2009 at the respondent's parents' home in Orange, where his sister, Mr Milides and the children were living. The respondent was at the house, and throughout the day he, Mr Milides, members of the family and some friends consumed a large quantity of alcohol. The respondent drank the best part of a carton of full strength beer, as well as smoking a considerable amount of cannabis. He was intoxicated and so, it seems, was Mr Milides.

5 In the early evening, the respondent, Mr Milides and others were gathered in the kitchen. An argument erupted between the two young men. The cause of it is uncertain. Witnesses gave varying accounts of what led to it but, whatever it was, it was a matter of no moment. They exchanged punches and ended up on the floor. Family members tried to intervene, but during the scuffle the respondent grabbed a pair of scissors, apparently from the kitchen table, and stabbed Mr Milides once in the chest. Following a triple 0 call, police and ambulance arrived. Attempts were made to revive Mr Milides but he died at the scene.

6 Post-mortem examination revealed that a single stab wound had penetrated his heart. The weapon had passed between his ribs and had not struck any bony structures. The examining pathologist reported that the degree of force required to cause the wound was difficult to quantify. He noted, however, that the greatest resistance to the weapon would have been from the skin. Once the skin had been penetrated, it would have been relatively easy for the weapon to pass into and through the soft tissue of the body. Analysis of a blood sample taken from Mr Milides during the examination revealed a blood alcohol level of 0.025 grams/100 mls, together with evidence of the consumption of cannabis.

7 The basis of manslaughter was a killing by an unlawful and dangerous act, it being accepted that the respondent did not intend to kill or to inflict really serious bodily injury. There is nothing to suggest any antecedent animosity between the respondent and Mr Milides. Indeed, the opposite appears to have been the case. His Honour said in his remarks:

"... all this happened tragically as a result of two young men and others wasting their time all day long drinking and drugging and getting into arguments. He did not intend to kill the deceased who was a friend of his. He probably does not even know what the argument he had with him was about.

...

It was just a drunken fight, he grabbed something and lashed out and unfortunately the scissors went through the soft part of the body and into the heart, they did not strike a bone, they did not get caught on a piece of clothing or strike a chair or some other object."

8 His Honour received a victim impact statement by Mr Milides' mother, which was an eloquent expression of the grief and outrage experienced by her and by her family as a result of this crime. Korrine West also provided a statement expressing her grief, but adding that she was satisfied that the respondent was sorry about what he had done and that over a period of time she had been able to forgive him. His Honour acknowledged these statements, having regard to them in accordance with established authority.

Subjective case

9 The respondent is now 19 years old. He has a criminal history, all his prior offences having been dealt with in the Children's Court. These comprise offences of dishonesty, driving offences and, more importantly, two offences of assault occasioning actual bodily harm and one of common assault. Apart from fines on a few occasions, these offences were dealt with by periods of probation, bonds or suspended control orders. He had not been in custody prior to his arrest for the manslaughter on the night of the offence, 4 September 2009.

10 There were in evidence a psychiatric report of Dr Stephen Allnutt and a more detailed and comprehensive psychological report of Ms Anna Robilliard. From that material it appears that the respondent's background was relatively unremarkable. He is one of four children. His mother is Aboriginal, although his Honour noted that it was unclear whether he himself identified as such. His upbringing appears to have been supportive and his parents sought to subject him to appropriate discipline and control.

11 However, he is of low intelligence. Dr Allnutt believed that he suffered from a degree of intellectual disability. Upon testing, Ms Robilliard assessed his intelligence as within the percentile rank of 10, meaning that "90% of his age cohort would score equal to or ahead of him on this and similar tests of intelligence." He exhibited learning and behavioural difficulties at school, and left in year 9.

12 He had never worked, despite his parents encouraging him to do so and his father trying to find a job for him. He had abused alcohol and cannabis since the age of 15. His daily routine was aimless. He would get up late in the morning, leave the family home and spend the day drinking and smoking cannabis with friends. Sometimes he and his friends would need money to finance their consumption, and this appears to be the source of some of his previous offences. His only income was his unemployment benefit.

13 Not surprisingly, in the light of the history he provided and other tests conducted by her, Ms Robilliard concluded that he was at risk of re-offending. She recommended his participation in "programmes exploring prosocial living and purposeful positive lifestyle choices." She noted his elevated scores on the alcohol and drug abuse scale, and concluded that "rehabilitation is required promptly both in custody and, more specifically, immediately post-release when risk of substance relapse is most likely." Noting his prior entries for assault, she also reported that anger management instruction may be of assistance to him.

14 Ms Robilliard recommended appropriate programmes and counselling while in custody to assist the respondent to address the issues putting him at risk of further offending. She described substance misuse as his "most proximal risk factor". She noted that he had been attending weekly drug and alcohol abuse classes, but added that he was "uncertain about his future use of substances and ambivalent about intensive rehabilitation, which would not be available until after his release from custody."

15 His Honour did not refer in terms to special circumstances warranting a departure from the statutory proportion between sentence and non-parole period, but clearly he made that finding. He saw the respondent's need for rehabilitation, together with his age and the circumstances of the offence, as factors demonstrating the desirability of a longer than usual period of parole eligibility. He announced that he proposed to fix a non-parole period of 2 years in association with a sentence of 6 years, noting that that course was "somewhat exceptional".

16 Although his Honour did not deal with the issue of remorse, there was some evidence of it. As I have said, Korrine West's victim impact statement recorded that the respondent had expressed contrition to her. Ms Robilliard noted that, within the limits of his capacity to convey his emotions, he expressed what appeared to her to be "genuine and sincere remorse". His Honour discounted the sentence he would otherwise have passed by 25% in recognition of the utilitarian value of the early plea of guilty.

The appeal

17 As refined in oral argument, the Crown prosecutor's submissions were directed only to the non-parole period. No issue was taken with the head sentence of 6 years. Nor could there have been, given that that sentence was the product of discounting what must have been a starting point of 8 years. Nor was any issue taken with his Honour's finding of special circumstances, recognising the need for a period of parole eligibility greater than that which would have been provided by the statutory proportion.

18 The Crown's complaint was that the non-parole period, in all the circumstances, is manifestly inadequate. The Crown prosecutor submitted that his Honour erred in his assessment of the objective gravity of the crime and gave undue weight to the respondent's subjective case, so that the non-parole period fell short of the minimum term which justice required to mark his criminality: Bugmy v The Queen (1990) 169 CLR 525, at 530 - 1.

19 The Crown prosecutor emphasised the seriousness of the offence. The stabbing, of course, was an impulsive act and the respondent did not intend its dire consequences. Nevertheless, by his plea of guilty to manslaughter by unlawful and dangerous act, he admitted having caused death by a deliberate act which, viewed objectively, carried with it an appreciable risk of serious injury: Wilson v The Queen (1991-2) 174 CLR 313, at 333.

20 The Crown prosecutor noted that on four occasions in the course of his remarks on sentence his Honour said that the respondent had not intended to kill Mr Milides. She pointed out that, of course, the crime to which the respondent pleaded guilty involved no such intent. She submitted that those observations tended to undermine the seriousness of the offence and, if his Honour extended any leniency to the respondent for that reason, he would clearly have fallen into error. However, I think it most unlikely that this experienced sentencing judge would have made such an error.

21 It is important not to lose sight of the practical reality of remarks on sentence. His Honour passed sentence the day after the sentence proceedings concluded. Nevertheless, the remarks have the appearance of having been delivered ex tempore. They do not have the structure and conciseness characteristic of a written judgment. His Honour's function was to explain why he had arrived at the sentence he did to the respondent and to those affected by his crime, as well as to the wider community. No doubt, those affected by the crime were in court to hear sentence passed. Like most people untutored in the law, it is unlikely that they would have understood what the crime of manslaughter meant in the circumstances of the case. It had to be made clear to them, and to the wider Orange community, that the respondent was being sentenced on the basis that he did not intend to kill Mr Milides. In my view, it was appropriate that his Honour emphasised that fact in his remarks.

22 The central issue is whether the 2 year non-parole period is inadequate and calls for the intervention of this Court. The Crown prosecutor queried what it was about the case which his Honour found "somewhat exceptional", so as to justify the course he took. While she acknowledged the finding of special circumstances, she submitted that there was no warrant for an adjustment of the statutory proportion between head sentence and non-parole period resulting in a non-parole period which is only one third of the sentence. A lesser period of parole eligibility, she said, would still be sufficient to foster the respondent's rehabilitation.

23 Counsel for the respondent, Ms Loukas, acknowledged that the 2 year non-parole period is lenient. However, she argued that it was not manifestly inadequate, given the circumstances of the offence. She submitted that, in the light of the respondent's age and subjective circumstances, it was open to his Honour to have fashioned the sentence as he did, providing for a very lengthy period of parole eligibility. She noted the breadth of the discretion of a sentencing court, having found special circumstances, to determine the extent of the adjustment to be made to the statutory proportion, a discretion with which this Court would not lightly interfere: R v Cramp [2004] NSWCCA 264, per Spigelman CJ at [31].

24 His Honour had regard to four manslaughter sentence cases to which he was referred by counsel for the Crown and the respondent. They involved spontaneous killings with the use of a knife in the course of arguments fuelled by alcohol, or a combination of alcohol and drugs. They were R v Harris [2007] NSWSC 1417 (Bell J), R v Kennedy [2008] NSWSC 703 (Fullerton J), R v Mills [2009] NSWSC 521 (Howie J) and R v Doolan [2010] NSWSC 615 (Grove J). In Kennedy the offender had been found guilty at trial, but in the other three cases there had been pleas of guilty.

25 As one would expect, there are many differences between each of those cases and the present case, both as to the circumstances of the offence and the subjective case of the offender. What they have in common is the fact that the offence was committed impulsively during an argument about nothing of any great consequence, the offenders (and, except in the case of Kennedy , the victims) were well intoxicated at the time, and the offenders had a substantial history of substance abuse, were remorseful and had reasonable to good prospects of rehabilitation. Notably, all the offenders were mature adults, their ages ranging from 40 to 53. Head sentences ranged between 6 years and 7 years and 3 months, and non-parole periods between 3 years and 9 months and 4 years and 6 months.

26 In addition to those cases, Ms Loukas referred us to the sentence for manslaughter imposed by Hall J in R v Hamshere [2005] NSWSC 1319. That offender stabbed the victim during a violent incident which had escalated from what began as a friendly wrestle between the two men. Both of them were intoxicated. The offender pleaded guilty, had no prior convictions, had a history of alcohol abuse, was remorseful and had good prospects of rehabilitation. His age does not appear from the remarks on sentence. Hall J had regard to a number of manslaughter sentence cases which he set out in a schedule to his remarks. The sentence imposed was 5 years with a non-parole period of 3 years.

27 Ms Loukas submitted that when one considers such pattern as emerges from those cases, and factors in the youth of the present respondent, it could be seen that it would have been open to his Honour to have passed a lower head sentence than he did. If he had, and had set the present non-parole period of 2 years, there would not be the marked disproportion between sentence and non-parole period of which the Crown complained.

28 This Court has often commented upon the broad spectrum of criminality embraced by the crime of manslaughter, and the wide variety of sentences which it attracts. Manslaughter by an unlawful and dangerous act can attract very low sentences or even non-custodial dispositions, although that is mostly in cases where the commission of the crime is attended by powerful mitigating circumstances. An example is the spontaneous killing by a woman of her partner in a desperate act engendered by years of physical abuse by him.

29 There are not mitigating circumstances of that kind in the present case. Nevertheless, what can be said is that the respondent killed Mr Milides by a single blow with the scissors in the heat of the moment. From the post-mortem report it is reasonable to infer that it was not a particularly forceful blow. Tragically, the scissors happened to pass through the skin and soft tissue so as to penetrate the heart. The stabbing occurred in the course of an argument fuelled by alcohol and drugs, at a time when the respondent's judgment and inhibition were impaired through his intoxication by those substances. This, of course, affords some explanation for his action, although it does not excuse it. He had turned 18 only a few months before the offence.

30 It is apparent that his Honour gave considerable weight to the respondent's age and his intoxication, as he was entitled to. The young man standing for sentence was barely an adult, and the offence was an impulsive act committed in a state of intoxication which was part of a pattern of substance abuse since his mid-teens. True it is that he had a criminal history which included offences of violence, a matter which was not to be overlooked. However, that background of substance abuse and of offending had to be assessed in the light of his youth and immaturity. That immaturity, in turn, might fairly be seen as a factor contributing to the offence: cf R v Hearne [2001] NSWCCA 37, 124 A Crim R 451, at [22] - [28].

31 Taking all these matters into account, I am of the view that the 2 year non-parole period, while markedly lenient, is not manifestly inadequate. This was a case where the consideration of rehabilitation loomed large. A young man who had committed a serious offence was at a point where, with appropriate supervision and counselling, he might turn his back on an aimless lifestyle degraded by substance abuse. It was entirely appropriate that his Honour fashion a sentence consisting of the minimum period of custody necessary to reflect his criminality, while leaving him eligible for an extended term of conditional liberty subject to a period of supervision and the continuing sanction of parole. This is what his Honour sought to do.

32 That said, to set a non-parole period which is only one third of the head sentence is unusual and stands outside current sentencing practice. Such a course invites the scrutiny of this Court. However, I would not allow this appeal on that account. There is some force in Ms Loukas's argument that it might have been open to his Honour to have arrived at a lesser head sentence after the 25% discount for the plea of guilty. However that may be, I remain unpersuaded that the non-parole period is manifestly inadequate and, in my view, that is sufficient to dispose of the matter.

33 I would dismiss the appeal.

34 JOHNSON J: I have had the advantage of reading the judgment of Hidden J. I regret to say that I have reached a different conclusion. In my view, error has been established and this Court should intervene and resentence the Respondent. I should explain why.

35 The facts are recited in the judgment of Hidden J.

36 The Crown notified the following grounds of appeal:

(a) Ground 1: The sentence imposed failed to reflect the objective gravity of the Respondent's crime.

(b) Ground 2: Undue emphasis was given to the Respondent's subjective case.

(c) Ground 3: Imposition of a non-parole term that reduced the minimum term below that which justice requires the Respondent to serve.

(d) Ground 4: Error in the imposition of a sentence which is manifestly inadequate.

37 As Hidden J observes, the Crown submissions focussed upon the non-parole period.

38 The sentencing Judge had determined to impose a head sentence of imprisonment for six years. No challenge is made to the appropriateness of the head sentence.

39 Application of the statutory formula in s.44(2) Crimes (Sentencing Procedure) Act 1999 to a head sentence of six years would see, unless the Court decides that there are special circumstances, a non-parole period of four years and six months with a balance of term of one year and six months.

40 Although there was no express finding of special circumstances, it is apparent that his Honour made such a finding to vary the statutory proportion between the non-parole period and the balance of term.

41 The Crown submits that, although a variation was justified in the circumstances of the case, the non-parole period fixed in the District Court was erroneous in the ways alleged in the first to third grounds of appeal and was manifestly inadequate as alleged in the fourth ground.

42 There is a degree of overlap in the grounds of appeal. The first and second grounds are components of the argument in support of the third ground.

43 The Crown acknowledges that a finding of special circumstances was open to the sentencing Judge upon the bases which the Crown had identified at the sentencing hearing, being the youth of the Respondent, the fact that it would be his first sentence of imprisonment and the need for post-release supervision and counselling in relation to substance abuse and anger management. Defence counsel in the District Court had not contended that there were additional features which could operate as "special circumstances" on the facts of the case.

44 His Honour did not make express findings of "special circumstances" , but said the following with respect to calculation of the non-parole period component of the sentence (ROS5-6; AB17-18):

"He needs some degree of rehabilitation, that certainly must be so. He also needs a longer than usual non-parole period because of his age and the circumstances of the offence. Both the psychologist and the psychiatrist refer in their reports of the need for some programmes to assist him. It is always difficult to know what to do. For people in their thirties and forties committing offences such as this they are usually getting, having regard to a plea of guilty, three to five years as a non parole period and a head sentence of anything up to six or seven years.

What I am going to do is something somewhat exceptional. I am going to give him a sentence of six years but I am going to give him a non parole period of two. Which will mean he will be on parole for four years if he is granted parole. I have to say to him that I fix a non parole date and that means that before that date he can not be admitted to parole. He is only admitted to parole after that date if the parole authority judge him suitable for parole. They do not have to admit him to parole. I am not making a recommendation one way or the other. They have to consider the circumstances at the time. I am of the opinion however, that he ought to be classified as soon as possible and that consideration should be given for placing him in a young offender's programme and at a minimum security institution.

The circumstances of the offence showing no deliberate intent to kill, in my opinion, means that the authorities should not regard him as an inherently dangerous person who should be kept in maximum security, but someone rather who should be the subject of earnest rehabilitation efforts. The extent to which he rehabilitates is a matter for him. I recommend that he be given access to drug and alcohol counselling as a matter of urgency and that attention be given to assisting him with education and skills training."

45 In fixing the non-parole period, his Honour referred to the Respondent's age and the need for rehabilitation.

46 It is not clear what the sentencing Judge meant by the statement that the Respondent needed "a longer than usual non-parole period because of ... the circumstances of the offence" . If this was a reference to the Respondent's intoxication against the background of his problems with alcohol and substance abuse, then this may bear upon the desirability of a longer than usual period on parole to further rehabilitative measures. It ought be noted, however, that his Honour (in the quoted passage above) referred later to the "circumstances of the offence showing no deliberate intent to kill" . His Honour had referred to the fact that the Respondent did not intend to kill the deceased on three occasions earlier in the remarks on sentence. It may be taken that his Honour was concerned to emphasise, for the purpose of those present at the time of sentence, that the Respondent was to be sentenced for manslaughter and not murder, so that some reference to the absence of intent to kill was appropriate.

47 However, the Crown submits that his Honour's repeated reference to this involved an erroneous distraction from an assessment of factors relevant to sentence for manslaughter. The Respondent was to be sentenced for involuntary manslaughter (by unlawful and dangerous act) so that the presence or absence of an intention to kill was entirely irrelevant on sentence. This Court has observed that it is erroneous, in determining sentence for an offence, to have regard to the absence of a feature which, if it were present, would constitute a different and more serious offence: R v Burton [2008] NSWCCA 128 at [90].

48 I am satisfied that his Honour's repeated reference to the absence to intent to kill constituted at least a distraction from an assessment of factors relevant to sentence in this case.

49 The Respondent had a criminal history for offences of violence and dishonesty, all dealt with in the Children's Court. These included offences of assault occasioning actual bodily harm, common assault and break, enter and steal in 2006 for which suspended control orders, probation or bonds were ordered (with the supervision and guidance of the Department of Juvenile Justice). Further non-custodial sentences were imposed when the Respondent was called up for breach of suspended control orders and bonds in 2007.

50 There was no presentence report before the District Court, nor was any earlier Department of Juvenile Justice report from the Children's Court made available to the District Court. There was no material before the District Court which explained how the Respondent had responded to conditional liberty and rehabilitative measures for earlier offences. The only evidence concerning the Respondent's background was in the form of a psychologist's report prepared for the sentencing hearing and a psychiatrist's report (prepared essentially for determining fitness to plead). Accordingly, there was a limited basis for the sentencing Judge to assess the Respondent's past response to rehabilitative measures.

51 The Crown submits, correctly, that the sentencing Judge made no mention in his remarks on sentence to general deterrence or specific deterrence, although these principles were referred to in the Crown written submission on sentence in the District Court.

52 This Court has observed, in the context of sentencing for manslaughter by unlawful and dangerous act, that alcohol-fuelled offences of violence are frequently committed by young men and that general deterrence has a particular application for this reason: R v Carroll [2010] NSWCCA 55; 200 A Crim R 284 at 299 [61]. It did not greatly assist the Respondent that the fatal blow was struck during the course of, as the sentencing Judge put it, "just a drunken fight" . This is especially so as it was the Respondent who utilised a weapon to strike a blow to the victim's chest. In my view, general deterrence was an important factor on sentence and the absence of any reference to it in the remarks on sentence fortifies a conclusion that the Respondent's subjective circumstances dominated the calculation of the non-parole period in an impermissible way.

53 In sentencing for manslaughter, there may be exculpatory matters and personal circumstances that can lead the Court to significantly ameliorate the sentence which might otherwise be imposed. However, 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: R v MD [2005] NSWCCA 156; A Crim R 372 at 387 [65]; R v Carroll at 299 [62]. These statements apply as much to the setting of a non-parole period as to the fixing of the head sentence.

54 In R v Simpson [2001] NSWCCA 535; 53 NSWLR 704 at 718 [65], Spigelman CJ observed that in addition to the need to identify and articulate "special circumstances" in order to overcome the statutory constraint on the exercise of the discretion to fix the non-parole period, it was necessary to ensure that the time an offender must spend in prison reflects all of the circumstances of the offence and the offender, including the objective gravity of the offence and the need for general deterrence, and that these operate to confine the proper range for the exercise of the discretion.

55 The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 [36].

56 The reduction of the non-parole period by a finding of "special circumstances" ought not result, as it does here, in an overall non-parole period that fails to reflect the seriousness of the offence and both specific and general deterrence: Maglis v R [2010] NSWCCA 247 at [28].

57 Where there is an extensive variation of the statutory ratio between the balance of the term and the non-parole period, it may be that disproportionate weight has been given to the subjective circumstances of the offender: R v Ceissman [2004] NSWCCA 466 at [25]. I am satisfied that this has occurred in this case.

58 The circumstances of this case which are suggested to warrant variation of the s.44(2) ratio, although capable of supporting a finding of "special circumstances" , were incapable of supporting a finding of "special circumstances" leading to the imposition of a non-parole period which was 33% of the head sentence. The suggested special circumstances advanced in the District Court were mentioned at [43] above. These considerations would warrant an adjustment of the statutory ratio from 75%, but, in my view, a variation to 33% was not reasonably open in the circumstances of the case.

59 I am satisfied that the non-parole period imposed in this case fell below the minimum term which the law required, and that the reasons for this may be found in the failure to reflect the objective gravity of the crime and the giving of undue emphasis to the Respondent's subjective case in the determination of the non-parole period. Accordingly, I am satisfied that the Crown has made good the first three grounds of appeal.

60 It has been said that this Court will only intervene if the non-parole period is manifestly inadequate or manifestly excessive: R v Fidow [2004] NSWCCA 172 at [19]. I am satisfied that the non-parole period in this case is manifestly inadequate.

61 It was submitted for the Respondent that, if error had been demonstrated, this Court should decline to intervene on a discretionary basis. Reference was made to the Respondent's progress in custody and an affidavit from him affirmed 17 February 2011 was read at the hearing in this Court.

62 This Court retains a discretion not to intervene on a Crown appeal, notwithstanding the abolition by s.68A Crimes (Appeal and Review) Act 2001 of the double jeopardy principle: R v JW [2010] NSWCCA 49; 199 A Crim R 486 at 515 [150]. Section 68A operates to remove from consideration by this Court the element of distress and anxiety to which all respondents to a Crown appeal are presumed to be subject: R v JW at 513-514 [141].

63 I have had regard to the submission that the Court ought decline to resentence the Respondent for discretionary reasons in this case. In considering the exercise of discretion, the Court should have regard, amongst other things, to the interests of justice being served by the imposition of an appropriate non-parole period for this serious offence: R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at 587 [79]. I am satisfied that the non-parole period is so far below that which the justice of the case required, that it is necessary and appropriate for this Court to intervene and resentence the Respondent. In the circumstances, I do not consider that the Court should decline to intervene on a discretionary basis.

64 The resentencing of the Respondent takes, as a starting point, the head sentence of six years' imprisonment. As mentioned earlier in this judgment (at [43]), a finding of special circumstances is appropriate in this case by reference to the Respondent's youth (and immaturity), his history of alcohol and substance abuse and the need for a longer-than-usual period of supervised parole as part of the sentence to assist his rehabilitation.

65 At the same time, it is necessary that the non-parole period not fall below a level which is appropriate to reflect the objective gravity of the Respondent's crime and the element of general deterrence, which has particular application to alcohol-fuelled offences of involuntary manslaughter. In my view, a non-parole period of three years ought be fixed.

66 I propose the following orders:

(a) Crown appeal allowed;

(b) quash sentence imposed in the District Court;

(c) in its place, the Respondent is sentenced to imprisonment by way of a non-parole period of three years, commencing on 4 September 2009 and expiring on 3 September 2012, with a balance of term of three years commencing on 4 September 2012 and expiring on 3 September 2015.

67 The earliest date on which the Respondent will be eligible for release on parole is 3 September 2012. I confirm the recommendation of the sentencing Judge that the Respondent should have access in custody to drug and alcohol counselling together with assistance with education and skills training.

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Amendments

27 April 2011 - Cover sheet: additional citations.Paragraph 64: amended cross reference.
Amended paragraphs: Cover sheet and paragraph 64

29 April 2011 - Amended cross reference: [43] substituted for [10].
Amended paragraphs: 58

Decision last updated: 29 April 2011