Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: AH v R [2013] NSWCCA 32
• Hearing dates: 15 November 2012
• Decision date: 21 February 2013
• Before: McClellan CJ at CL; Rothman J; Bellew J

Decision

(i) Leave to appeal granted.

(ii) Appeal dismissed.

• Catchwords: CRIMINAL LAW - manslaughter - extended joint criminal enterprise - agreed facts - where agreement did not extend to an agreement as to the nature of the applicant's participation - whether sentencing judge misconstrued the basis of the applicant's plea - whether sentencing judge confused joint criminal enterprise with extended joint criminal enterprise - whether sentencing judge erred in assessment of objective gravity of the offending - whether sentencing judge gave too much weight to general deterrence in light of applicant's youth - whether there was disparity in the sentence imposed on the applicant when compared with sentences imposed on co-offenders - whether sentence manifestly excessive
• Legislation Cited: Children (Criminal Proceedings) 1987; Law Enforcement (Powers and Responsibilities) Act 2002
• Cases Cited: KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571; Mulato v R [2006] NSWCCA 282; R v Barghachoun [2012] NSWCCA 1534
• Category: Sentence
• Parties: AH (Applicant); Crown (Respondent)
• Representation: A Francis (Applicant); H Wilson (Respondent); Legal Aid New South Wales (Applicant); Solicitor for Public Prosecutions (NSW) (Respondent)
• File Number(s): 2009/59632
• Publication restriction: Nil

Decision under appeal

• Citation: R v AH [2011] NSWSC 1535
• Date of Decision: 2011-12-13 00:00:00
• Before: Johnson J
• File Number(s): 2009/59632

JUDGMENT

1 THE COURT: On 13 December 2011, following a plea of guilty to a charge of manslaughter, the applicant was sentenced by Johnson J to a total term of imprisonment of 4 years, comprising a non-parole period of 2 years with an additional term of 2 years.

2 His Honour ordered that in accordance with s 19 of the Children (Criminal Proceedings) Act 1987, the whole of the term of the imprisonment of the applicant was to be served as a juvenile offender.

3 The applicant has sought leave to appeal against that sentence on a number of grounds more fully set out below.

THE FACTS

4 A document headed "Agreed facts on sentence" which was signed by the Crown, counsel for the applicant, and the applicant himself, was tendered before the sentencing judge. The sentencing judge summarised the facts in a manner than cannot be subject to criticism. The following summary is taken from the agreed facts:

The charge

5 The applicant was originally charged with the murder of David Wayne Boyce at Busby on 25 April 2009. Two other persons, Saad Jamie Barghachoun ("Barghachoun") and JS were also each charged with the murder.

6 All three persons were committed for trial for murder. The Crown subsequently accepted pleas of guilty to manslaughter by the applicant, as well as from Barghachoun. JS was found guilty of manslaughter following a trial.

Relevant events at Wentworthville and Busby

7 On the evening of Friday 24 April 2009, David Wayne Boyce ("the deceased") was one of a number of people at a gathering at Wentworthville. Some of those present were drinking alcohol, some were consuming methylamphetamine. Both substances were detected in the deceased's blood stream at a post mortem examination.

8 At the same time, there was a gathering of people at an address in Busby ("the Busby premises") at which JT resided with his parents. JT was drinking and socialising with a number of persons, and was heavily intoxicated as a result. One of the visitors to the Busby premises was RM, a 17-year-old girl who was the friend of another girl (DF) and the girlfriend of JP, who was also at the Busby premises at the time.

The first conversation between the applicant and JT

9 At around 12:30am on Saturday 25 April 2009 there was a telephone conversation between RM and DF. During that call, JT asked RM whether or not she was speaking with the applicant. There had been ill feeling between JT and the applicant over their respective relationships with a female, CH.

10 The applicant and JT subsequently spoke to each other and their conversation ended in an argument.

The applicant's first visit to the Busby premises

11 At the time of his conversation with JT, the applicant was in the company of the co-accused JS. DF and her friend NR, were with them.

12 After the applicant's conversation with JT ended, JS drove that group (i.e. the applicant, DF and NR) to the applicant's home. The applicant got out of the car for a short time and went into the house. He returned in possession of some metal poles which he placed on the floor of the car.

13 The applicant then travelled to the Busby premises with JS, DF and NR. It is to be noted that the co-accused Barghachoun was not with the applicant and JS at this time.

14 A short time later RM received a call from the applicant who said he was outside the premises, and that he wanted JT to come out and meet him. Although DF and NR had travelled to the area with the applicant, they had chosen to wait away from the premises.

15 JT came out of the Busby premises. He and the applicant argued for a short time, until JT's father came out and intervened. The applicant refused to leave unless and until JT apologised. JT's father apologised on JT's behalf and shook hands with the applicant. The applicant and JS then left the Busby premises and, having returned to their car with DF and NR, they drove away.

16 After the applicant left, JP questioned JT as to why he (JT) had allowed his father to intervene and apologise for him. JT became angry at his father for sending the applicant and JS away. JT attempted to contact the applicant so that the applicant would return, but he was not able to do so.

The second conversation between the applicant and JT

17 RM (who was still at the Busby premises after the applicant had left) called her friend DF in the presence of JT. JT took the phone from RM and said to DF:

"Get (the applicant) on the phone."

18 The applicant and JT then had a further conversation in which they agreed to meet again so that they could fight "one on one". After that call JT, who was a friend of the deceased, called the deceased and asked him to come to the Busby premises. The deceased agreed to do so.

The applicant's preparation for his return to the Busby premises

19 After speaking with JT, the applicant, along with JS, DF and NR travelled to the premises of another person, AT. Barghachoun had been socialising with AT and another person, LA, earlier that evening. AT received a phone call, either from the applicant or JS, asking him, and the people with him (ie, LA and Barghachoun), to meet the applicant and the others at AT's home.

20 Meanwhile DP, who was the cousin of AT, along with DB and JH arrived at AT's premises in a separate car.

The applicant's second visit to the Busby premises

21 AT (as the driver of a van) along with the applicant, Barghachoun, DF, JS, AH, DP, LA, DB and NR, then left AT's premises and travelled to the Busby premises. On the way they collected JH (who was the brother of AH).

22 A number of metal poles were inside the van. There was discussion on the way between some of the males to the effect that they were going to the Busby premises for the purposes of having a fight. Several people heard the applicant say that he was going to have "one on one" fight with JT. JS came into possession of a knife, either prior to arriving at the Busby premises, or at that location. The applicant was not aware at any time that JS had a knife.

23 Upon arriving in the vicinity of the Busby premises, AT stopped the van around the corner and remained there. All of the others who had travelled there got out of the van and started walking towards the Busby premises. A number of them, including the applicant, were armed with metal poles. The applicant, along with DF, NR, JS, Barghachoun and others approached the Busby premises. As they did so, JT and JP were on the verandah. When JT and JP saw the group approaching they retreated inside.

24 The applicant, who was armed with a pole, banged on the screen door of the Busby premises yelling for JT to come out. He then turned away from the front door. As he did so, JT opened the door and approached the applicant from behind, striking him once to the back of the head with a wooden bat. This caused the applicant to fall to the ground. JT then retreated into the house.

25 At about the same time the deceased arrived at the premises in a four-wheel drive vehicle. Before the driver of that vehicle had stopped (directly in front of the house), the deceased, who had been in the front passenger seat, jumped out with a baseball bat in his hand and approached several of the people who had arrived in the van with the applicant. Three other males and two females had accompanied the deceased to the Busby premises.

26 Shortly after the deceased got out of the vehicle, he became involved in the affray with those who had arrived with the applicant. The deceased was stabbed once to the chest by JS, and died as a result.

The applicant's departure from the Busby premises

27 As they were leaving the area, JS smashed the front window of the Busby premises. He then used a pole to strike and damage a vehicle parked in the driveway of the house. He, along with Barghachoun and the applicant, as well as other persons who had arrived in the van, then left the area and returned to the van, following which it was driven away by AT who had been waiting. As the vehicle was driving away, males from inside the van said:

"We showed them".

28 The applicant said:

"We wasted our time, (JT) didn't even come out."

29 Barghachoun said:

"Which one was JT? Everyone was hitting everyone. I was hitting people ..."

30 JS, who was heard by others in the van to acknowledge the fact that he had stabbed the deceased, was seen in the van in possession of a knife and was heard to remark that it "had blood on it". He passed the knife to someone who wiped it clean with a tissue. When the van eventually arrived back at AT's house, AT was handed the knife by JS. AT secreted the knife in a drain near his house and was later dealt with in the Local Court for the role that he played in disposing of it.

31 Following their arrival back at AT's premises, DF, NR, the applicant and JS drove to an industrial area, before proceeding to JS's house where the applicant fell asleep. DF was then informed that somebody had been stabbed at the Busby premises. She passed on this information to the applicant, who in turn passed it on to JS.

32 At that point JS began to create a false alibi and said:

"We weren't there, we were at home watching movies. If you have to give a statement use that as an alibi".

33 DF said:

"Yeah, let's stick with that story".

34 Later in the morning JS drove NR home. DF was also in the car and when they arrived at NR's home DF said:

"Don't say anything".

The applicant's arrest

35 On the evening of 25 April 2009 police attended the applicant's home address, where he and JS were arrested.

36 During the search of the applicant's house, police also spoke with Barghachoun, who asked officers why JS had been arrested. Police told Barghachoun that JS had been arrested because of his involvement in a murder at Busby on the previous evening. When police asked Barghachoun whether he knew anything about it, he replied:

"That's the first I've heard about it...I went out with my mate Luca for a while and then he dropped me off at my place...around midnight".

37 When police arrived at the applicant's premises they were in possession of a search warrant which they proceeded to execute. One of the detectives spoke to the applicant and his mother about the warrant. As his mother was reading the occupier's notice the applicant said:

"Fuck em, there a bunch of dogs. They don't call em pigs for no reason".

38 As officers explained the warrant to the applicant's mother, the applicant received a call on his mobile phone at which time he was heard to say:

"I just had fucken 8 coppers fucken barging the door. ... Fuck em - says I can't obstruct the search warrant, doesn't say I can't call em pigs and fucken dogs".

39 When the applicant read out aloud the items of interest listed on the search warrant he said to the person on the phone:

"They're looking for this to do with the murder this morning. I fucken been asleep. I fucken woke up now ...".

40 When police commenced to search the applicant's bedroom, the applicant said to them:

"Youse are a bunch of fucken retards ... So who was I supposed to have murdered anyway? ... Give me my fucken stuff back - what the fuck do you think this is?"

41 When his mother tried to calm him down, the applicant said:

"I don't care - fuck yous".

42 After further exchanges, and as a consequence of the applicant's ongoing interference with the execution of the search warrant by the police, the applicant was charged with an offence of hindering the execution of a search warrant pursuant to s 52 of the Law Enforcement (Powers and Responsibilities) Act 2002.

43 That charge was contained in a Form 1 which was tendered before the sentencing judge.

THE GROUNDS OF APPEAL

Ground 1 - His Honour erred in failing to properly identify the nature of the applicant's liability for the offence of manslaughter.

The sentence proceedings

44 In considering this ground, it is necessary to make reference to some aspects of the sentencing proceedings.

45 At the outset of the proceedings, his Honour enquired as to the basis on which the plea to the charge of manslaughter had been entered. The following exchange ensued between his Honour, counsel for the Crown and counsel for the applicant (at AB 89 - 90):

"His Honour And the basis upon which the plea to manslaughter was entered is what, if counsel could tell me what the agreed basis is?

Crown Unlawful and dangerous act.

His Honour But by application of joint criminal enterprise or extended joint criminal enterprise? Let's get it clear at the outset.

Crown On the basis, the Crown says, of a joint criminal enterprise

His Honour Is that agreed?

Applicant Extended joint criminal enterprise, your Honour.

His Honour Extended joint criminal enterprise, or joint criminal enterprise?

Crown The Crown agrees its extended your Honour".

46 Following this exchange, the hearing proceeded. The applicant was not called to give evidence. The only oral evidence called in the applicant's case was from a Juvenile Justice officer who was the joint author of a report which was before his Honour for the purposes of sentence. In addition to that report, counsel for the applicant tendered:

(i) a report of Dr Christopher J Lennings, Psychologist;

(ii) a testimonial from the applicant's employer;

(iii) a report from the Westside Youth Centre, with whom the applicant had undertaken voluntary work; and

(iv) two reports dealing with the medical condition of the applicant's mother.

47 In the course of submissions to his Honour, senior counsel for the applicant said (at AB 112):

"Now, the plea is entered on the basis that he was engaged in an unlawful and dangerous act by anticipating the possibility of injury to the other group, but his involvement in the actual death is minimal, apart from that constructive case against him if I can say that".

48 Subsequently, the following exchange occurred between his Honour and senior counsel (at AB 116 - 117):

His Honour Did he instigate an affray?

Counsel Well, I mean, again, one of the problems with this is the fact that that's one of those inter venus (sic) type arguments; did he instigate an affray? He participated for a very short time in an affray, to which he pleaded guilty, I might say, at a very early opportunity.

His Honour That's been dropped.

Counsel Yes, but nevertheless, it's an indication of taking responsibility for that part of the participation. He's in the affray, clearly, when he's outside the front door, and that would put any person in fear, so we don't have any difficulty with that. And, essentially, that acknowledgement of a factual circumstance brought him very close to manslaughter anyway, because it's an acknowledgement of participation in an unlawful act, so perhaps I'm jumping about here, but in terms of the plea, of course, that has some relevance".

49 The Crown's final submissions to his Honour included the following (at AB 126):

"Now the question in this case, of course, is that if the court comes to the view that AH did have some insight into the fact that someone could be seriously injured that would make it more serious, and that if he had been an instigator of events which led to the affray, or that which lead to the situation with (sic) somebody was not just seriously injured but was in fact killed, his culpability would be greater still".

50 What was said at that point was consistent with the Crown's written submissions to his Honour which included the following:

"The offender's liability for manslaughter arises from an extended joint criminal enterprise. ... The present charge arose out of a serious breach of the peace, namely an affray, between two rival groups of young men".

His Honour's reasons

51 Relevantly in terms of this ground of appeal, his Honour said the following in the course of his reasons (at [70]):

"The offender has pleaded guilty to the crime of manslaughter. He is to be sentenced for his participation in an extended joint criminal enterprise, in that he took part in an unlawful and dangerous act, an affray, in circumstances which objectively carried with it an appreciable risk of serous injury being occasioned to a person".

The submissions of the applicant

52 It was submitted on behalf of the applicant that in making those observations in paragraph [70] of his reasons, his Honour had "misconceived the nature of the plea" and in doing so had confused the concept of a joint criminal enterprise with an extended joint criminal enterprise. Counsel submitted, in particular, that the contents of paragraph [70] of his Honour's reasons reflected an analysis of a joint criminal enterprise to commit manslaughter, rather than an extended joint criminal enterprise.

53 Central to the complaint made on behalf of the applicant was the following submission which was included in the written submissions filed by counsel (at paras. 35 - 36):

"The proceedings on sentence made it clear that the plea was entered on the basis that the offender's (sic) participated in an offence, namely a joint enterprise, to facilitate an assault on JT ("one on one"). The facts did not suggest that the offender's state of mind intended to inflict serious bodily injury on anyone - however it was accepted that he contemplated the use of the metal poles if the situation got out of hand, if they were attacked - it was conceded that the use of the poles in a fight would inevitably entail serious bodily injury.

There was accordingly a significant distinction in the way his Honour characterised the offence in the Reasons for Sentence and the specific nature of the plea agreed by both sides".

Consideration and conclusion

54 For a number of reasons, we do not accept the submissions advanced on behalf of the applicant.

55 Although the terms of the agreement at sentence between the Crown and the applicant lacked precision, it is apparent that what was agreed upon were the facts. The agreement did not, on a fair reading of the transcript of the sentence proceedings, extend to an agreement which limited the nature of the applicant's participation in the offending. In particular, it is apparent that the agreement as to the facts did not extend to an agreement that the applicant had intended to engage in a "one on one assault" upon JT, or that his participation in the extended joint criminal enterprise was so limited. That may well have been the applicant's position on sentence. However, it is evident from the submissions made to his Honour that it was not a position with which the Crown agreed.

56 It was the Crown's position on sentence that the conduct of the applicant amounted to participation in an affray and that, in so participating, he had contemplated the possibility of serious bodily injury being inflicted upon some person. So much is clear from the terms of the Crown's submissions to his Honour, both orally and in writing. This is also the basis, properly understood, of the submissions below on behalf of the applicant.

57 The fact that this was the Crown's position is also clear from his Honour's enquiry, to senior counsel for the applicant, concerning whether or not the applicant had in fact participated in an affray. It is to be inferred that the reason his Honour asked that question was because it was relevant to an issue in the proceedings which he was required to determine, namely the nature of the applicant's participation in the extended joint criminal enterprise. In responding, senior counsel for the applicant expressly acknowledged the applicant's participation in an affray.

58 In our view, it is clear that despite the agreement as to the facts, there remained an issue as to the applicant's participation. As with all other factual issues on sentence that was an issue which was for his Honour to determine.

59 We do not accept that his Honour misconceived the nature of the plea in any way, nor do we accept that he confused the concepts of joint criminal enterprise and extended joint criminal enterprise. In this regard, quite apart from the terms of paragraph [70], his Honour also said (at paragraph [83]):

"I keep in mind that I am not sentencing the Offender for directly causing the death of Mr Boyce, nor am I sentencing him for his participation in a joint enterprise that had as its object the doing of an act of killing or inflicting grievous bodily harm" (emphasis added).

60 It seems that part of the applicant's complaint before this Court is the description by his Honour of the affray as "an unlawful and dangerous act (see [51] infra). The affray was unlawful, and it was dangerous. It was not "the unlawful and dangerous act" that caused death. His Honour did not describe it as such. Nor did his Honour treat it as such. If his Honour were to have treated the affray in that manner, then his Honour would not have made the comments at paragraph [83] of his reasons recited above. Those passages of his Honour's reasons, far from exhibiting any confusion, reflect a clear understanding of the fact that the applicant was not to be sentenced on the basis of participation in a joint criminal enterprise, but rather on the basis of an extended joint criminal enterprise. What constituted that participation was a matter for his Honour to determine.

61 Further, in our view his Honour did not err in concluding that the applicant had participated in the extended joint criminal enterprise in the manner alleged by the Crown. Quite apart from the express concession made by senior counsel who appeared for the applicant that the applicant had participated in an affray, the facts established that in circumstances where there had been tension between the applicant and JT, and following a visit by the applicant to the Busby premises, the applicant recruited a number of other persons and travelled back there. The applicant himself was armed with a metal pole, as were several of the other persons who were with him.

62 The agreed facts also established that upon arrival, the applicant approached the Busby premises in the company of a number of other males. The applicant banged on the screen door at the front of the Busby premises, only to be struck from behind as he turned away from the door. It was at about the same time that the deceased arrived at the premises and jumped out of a vehicle armed with a baseball bat, approaching several of the people who had accompanied the applicant to the premises. It was also at this time, according to the agreed facts, that the deceased "became involved in the affray with the white van group" and was killed.

63 In our view, these facts supported his Honour's conclusion as to the applicant's participation.

64 For these reasons, this ground is not made out.

65 It should be noted that in the course of the hearing of the appeal, and although it was not set out in any of the grounds, counsel for the applicant made a submission that because of the matters raised in support of ground 1, his Honour's conclusion as to the applicant's participation in the offending amounted to a denial of procedural fairness. For the reasons we have set out, we reject that submission.

66 It was made clear at the hearing of the appeal that the five grounds advanced by the applicant were interrelated, and that grounds 2 to 5 depended, to a large extent, upon ground 1 being upheld. Although we have found that ground 1 has not been made out, it is appropriate that we deal with the remaining four grounds, to the extent that they raise issues which are independent of those raised in ground 1.

Ground 2 - His Honour erred in the assessment of the objective gravity of the applicant's offence

His Honour's reasons

67 At paragraphs [90] - [92] of his reasons, his Honour said the following:

"I am satisfied that the offender's crime is one of considerable seriousness. He was responsible for setting in train the conflict which led to two groups of young men clashing outside the Busby house. There was an element of planning and organisation with the provision of assistance by his companions to accompany him to the fight.

The offender had an opportunity to walk away from the dispute after the intervention of JT's stepfather, but he chose to resume the dispute and return to the Busby house. The offender emerged from the van, armed with a metal pole, indicating his willingness to use force, and sought to confront JT for that purpose. Although he did not, in the end, strike a blow to any person, it might be concluded that the only reason that he did not do so was because JT got in first, striking him to the head.

It was accepted in submissions for the Crown and the offender that the offender was not intoxicated at all by alcohol or any drugs on this night. The fact that he engaged in conduct of this type while sober is a further troubling feature of the case".

The submissions of the applicant

68 The submissions of the applicant in support of this ground were, in essence, that:

(i) his Honour's reference to the applicant being responsible for "setting in train the conflict" was an inaccurate and oversimplified label for the role of the offender;

(ii) his Honour's conclusion that the offender "chose to resume the dispute" was also inaccurate, and that it was in fact JT who did so;

(iii) JT provoked and goaded the applicant to return to the Busby premises; and

(iv) in concluding that there was an element of planning and organisation on the part of the applicant, his Honour had overstated the facts.

Consideration and conclusion

69 We do not accept the submissions advanced in support of this ground.

70 As to the first submission, the agreed facts established that the applicant had visited the Busby premises and had left only after JT's father had intervened to quell the dispute which had arisen. Thereafter the applicant, following a telephone conversation with JT, gathered together a large number of people before returning. When he and the others returned to the Busby premises, the deceased was killed. Viewed in this way, his Honour's conclusion that the applicant was responsible for setting in train the conflict was, in our view, neither inaccurate nor oversimplified. The conflict to which his Honour was referring was the affray.

71 As to the second submission, the agreed facts established that although JT had initiated the telephone conversation with the applicant following the applicant's first attendance at the Busby premises, it was the applicant who gathered others and returned. In that sense, it was the applicant who chose to resume the dispute. While the significance of this conduct to the sentence to be imposed must be assessed bearing in mind the issues of immaturity to which his Honour referred, it is an accurate statement of fact.

72 As to the third submission, we do not accept that JT, by initiating the conversation with the applicant referred to in [70] above, provoked or goaded the applicant. The facts record that the applicant and JT agreed to meet again. The applicant could have walked away but chose not to do so.

73 The fourth submission was advanced on the basis that the killing of the deceased was an unintended consequence of the fact that one of the people who accompanied the applicant carried a knife. We accept that such a consequence might well have been unintended. However, the agreed facts established that the offender did indeed plan and organise the second visit to the Busby premises as we have outlined, as a consequence of which the deceased was killed. In concluding, correctly, that the applicant had played an organisational role, his Honour did not overstate the facts. He recorded them accurately.

74 We accept that the applicant took no part in the act which caused the deceased's death. We also accept that his involvement in the events at the Busby premises on the second occasion was short. The shortness of his involvement and actual participation were also unintended. However what took place prior to the applicant's arrival at the Busby premises on that second occasion cannot be overlooked. To do so would result in a gross distortion of the totality of the applicant's offending. Relevantly, prior to going to the Busby premises on the second occasion, the applicant had:

(i) spoken with JT over the telephone;

(ii) gone home and retrieved a quantity of metal poles;

(iii) gone with JS to the Busby premises;

(iv) avoided a confrontation with JT only through the intervention of JT's father;

(v) spoken with JT again;

(vi) made a decision, following that conversation, to return to the Busby premises; and

(vii) recruited a large number of persons to accompany him, some of whom (like the applicant) were armed.

75 The characterisation of the objective seriousness of an offence is part of the role of a sentencing judge, with which this Court will be slow to interfere. The question is whether or not the particular characterisation of the sentencing judge was open (see Mulato v R [2006] NSWCCA 282 per Spigelman CJ at [37] and Simpson J at [46]). In our view, his Honour's conclusions were clearly open in the present case.

76 Having regard to all of these factors, we do not accept that the applicant's offending should be properly regarded as falling at, or even towards, the bottom end of the range as was submitted on his behalf. To reach such a view would ignore the organisational role which his Honour correctly found that the applicant had played.

77 For these reasons, this ground is not made out.

Ground 3 - His Honour erred in giving too much weight to general deterrence and denunciation having regard to the offender's role in the offence, and his youth

His Honour's reasons

78 We have already referred to the applicant's organisational role in the offending. In terms of his age, his Honour made specific reference (at paragraph [94] of his reasons) to the fact that the applicant was 16 years and 8 months old at the time of the offending. He then said (at paragraph [112]):

"In sentencing an offender who commits a crime at the age of 18 years and 6 months, principles of retribution and general deterrence may be of less significance than when sentencing an adult offender for the same offence. Recognition is to be given to the capacity of young persons to reform and mould their character to confirm (sic) to society's norms, with considerable emphasis to be placed on the need to provide an opportunity for rehabilitation. In considering the role of retribution on sentence, the Court will have regard to emotional immaturity or a young person's less-than-fully developed capacity to control impulsive behaviour: BP v R [2010] NSWCCA 159; 201 A Crim R 379".

With respect to his Honour this is a correct statement of principle, and of the approach to be taken.

The submissions of the applicant

79 The submissions advanced on behalf of the applicant in respect of this ground were based, in large measure, upon the proposition that his Honour had erred in his assessment of the objective gravity of the applicant's offending. We have concluded that this proposition has not been made out.

Consideration and conclusion

80 His Honour was obviously aware of the applicant's age, having made two specific references to it. His Honour was also conscious of the relevance of the applicant's age. So much is evident from paragraph [112] of his Honour's reasons, in which his Honour correctly set out the principles which governed the manner in which the applicant's age was to be taken into account on sentence.

81 The weight which is to be given to the fact of the youth of an offender will necessarily vary according to the seriousness of the offence. Considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders. This is because there is significant public interest in deterring antisocial conduct of the kind in which the present applicant engaged. It follows that general deterrence and denunciation remained relevant considerations in the sentencing of the applicant.

82 Further, as a principle, the emphasis which might be given, when sentencing a young offender, to rehabilitation rather than general deterrence and retribution, may be moderated when the young person has conducted himself in a way in which an adult might, and in doing so has committed a crime of violence (see generally KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 per McClellan CJ at CL at [22] - [26] and the authorities cited therein).

83 Taking into account all of these matters, this ground is not made out.

Ground 4 - His Honour erred in the sentence imposed on the offender in comparison to his co-offenders based on the principle of parity

The applicant's submissions

84 It was submitted on behalf of the applicant that in view of principles of parity, the applicant should have received a sentence considerably less than that which was imposed. This submission was based upon the following propositions:

(i) the applicant was considerably younger than both of the co-offenders;

(ii) his actions were far less culpable than both;

(iii) his subjective features were at least the equivalent of Barghachoun, if not more compelling; and

(iv) he had been provoked.

Consideration and conclusion

85 His Honour sentenced the co-offender Barghachoun to an identical term of imprisonment as that imposed on the offender, with a non parole period which was 3 months longer. Barghachoun was sentenced as an adult and, like the offender, was given the benefit of a discount of 20% on account of his plea of guilty.

86 JS, who stabbed the deceased, was sentenced to imprisonment for a period of 6 years, with a non-parole period of 3 years. This incorporated a discount of 20% to reflect the plea of guilty to the offence of manslaughter which he had offered to the Crown, but which had been rejected.

87 The applicant's youth was, as we have outlined, a matter of which his Honour was conscious, and which he took into account on sentence. We have already concluded that the applicant was not provoked.

88 In our view, the remaining matters advanced on the applicant's behalf do not support a conclusion that the applicant has a justifiable sense of grievance when his sentence is compared with the sentences imposed upon his co-offenders.

89 We accept that the applicant's actions were less culpable than those of JS, whose act of stabbing caused the death of the deceased. That difference in culpability is properly reflected in the different sentences which were imposed upon the applicant on the one hand, and JS on the other.

90 We do not, however, accept that the applicant's actions were far less culpable than those of Barghachoun. It is evident that Barghachoun was sentenced on the basis that, like the applicant, he was not directly involved in the act causing the death of the deceased (see R v Barghachoun [2011] NSWSC 1534 at [64]). Barghachoun was one of the participants whose attendance was organised by the applicant. His Honour found (Barghachoun (supra) at [73]) that Barghachoun had willingly participated in the events, armed himself with a metal pole, and struck a member of the other group with a baseball bat. Importantly, and unlike the applicant, Barghachoun played no organisational role and was not a party to the first visit by the applicant to the Busby premises.

91 Taking all relevant matters into account, and having particular regard to what we have concluded were the entirety of the circumstances of the applicant's offending and the organisational role that he played, we do not consider that there is any disparity in the sentence imposed upon the applicant when compared with those imposed upon the co-accused.

92 It follows that this ground is not made out.

Ground 5 - In all the circumstances the sentence was manifestly excessive

93 Reliance was placed on the submissions advanced in respect of grounds (1) to (4) in support of this ground. For the reasons set out, those grounds have not been made out.

94 In our view, his Honour did not err in his assessment of the applicant's offending, nor did he err in concluding that the applicant's actions constituted the commission of what he described as an "objectively serious crime". His Honour had regard to the applicant's subjective circumstances, including his youth, and made specific reference to the medical report which was tendered on the applicant's behalf, and which referred to his immaturity. His Honour concluded, correctly in our view, that a sentence of full time custody was the only appropriate sentence in all of the circumstances.

95 The offending in which the applicant engaged was a form of street violence. The applicant was the organiser of the attendance of a large number of armed persons at the Busby premises. The attendance of those persons culminated in one of the participants taking the life of the deceased. By his plea, the applicant acknowledged that in acting as he did, he contemplated that serious bodily injury might be inflicted upon some person. Despite the applicant's age, considerations of general deterrence, and the need to protect the public from such activity, remained relevant considerations on sentence.

96 Viewed in this way, the sentence imposed by his Honour was not manifestly excessive and this ground is not made out.

ORDERS

97 For the reasons set out above, the orders of the court are as follows:

(i) leave to appeal granted;

(ii) appeal dismissed.

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Decision last updated: 26 February 2013