Supreme Court New South Wales

• Medium Neutral Citation: R v Loveridge [2013] NSWSC 1638
• Hearing dates: 25/10/13
• Decision date: 08 November 2013
• Jurisdiction: Common Law - Criminal
• Before: Campbell J

Decision

The offender is convicted and sentenced as follows:

(1) For the third count, the offence of assaulting Matthew Serrao, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th September 2012 and expiring on 17th January 2013;

(2) For the fourth count, the offence of assaulting Rhyse Saliba, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th November 2012 and expiring on 17th March 2013;

(3) For the fifth count, the offence of assaulting Aden Gazi, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th March 2013 and expiring on 17th July 2013;

(4) For the second count, the offence of assaulting Marco Compagnoni occasioning him actual bodily harm, I sentence you to a fixed term of imprisonment of 6 months commencing on 18th May 2013 and expiring on 17th November 2013;

(5) For the first count, the manslaughter of Thomas Kelly, I sentence you to a term of imprisonment having a non-parole period of 4 years commencing on 18th November 2013 and expiring on 17th November 2017, with an additional term of 2 years commencing on 18th November 2017 and expiring on 17th November 2019.

The earliest date on which you will be eligible for release on parole is 18th November 2017.

The total effect of sentence therefore is one of 7 years and 2 months with an effective non-parole period of 5 years and 2 months.

• Catchwords: CRIMINAL LAW - sentence - guilty pleas - three charges of common assault - one charge of assault occasioning actual bodily harm - one charge of manslaughter by an unlawful and dangerous act
• Legislation Cited: Crimes (Sentencing Procedure Act) 1999 (NSW)
• Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; Donaczy v R [2010] NSWCCA 143; Hili v The Queen [2010] HCA 45; 242 CLR 520; KT v R [2008] NSWCCA 51; Pearce v The Queen [1998] HCA 57; 194 CLR 610; R v Bashford [2007] NSWSC 1380; R v Castle [2012] NSWSC 1603; R v Dang [1999] NSWCCA 42; R v Dawes [2004] NSWCCA 363; R v Greenhalgh [2001] NSWCCA 437; R v McDonald (Unrep, 12/12/1995 NSWCCA); R v O'Hare [2003] NSWSC 652; R v Risteski [1999] NSWSC 1248; R v Smith [2008] NSWSC 201; Veen v The Queen (No 2) [1988] HCA 14 164 CLR 465
• Category: Sentence
• Parties: Regina; Kieran Loveridge
• Representation: Counsel: PE Barrett (Crown); MD Austin with LC Hutchinson (Offender); Solicitors: Director of Public Prosecutions (Crown); Aboriginal Legal Service (NSW/ACT) (Offender)
• File Number(s): 2012/223921

Judgment

1 The offender, Kieran Loveridge, has pleaded guilty to an indictment containing five counts of offending, all of which occurred on 7th July 2012 at Kings Cross, part of the suburb of Potts Point. In ascending order of seriousness there are three charges of common assault, one charge of assault occasioning actual bodily harm and one charge of manslaughter by an unlawful and dangerous act.

2 The offender is before the Court today to be sentenced for each of these offences, the proceedings on sentence having been heard before me on 25th October 2013.

3 I will come soon to examine the facts in more detail, but each of his offences, in plain language, may be characterised as an incident of drunken violence in a public place. As the Crown Prosecutor put it, Mr Loveridge's offending consists of five unprovoked attacks carried out randomly on unsuspecting strangers by an intoxicated young offender. One of those attacks has had the most serious consequences. The offences taken together, as the Crown submits, constitute an overall episode "of alcohol fuelled violence" (23.44T), occurring over about one hour.

Victim impact statements

4 I have had the benefit of having heard a number of victim impact statements in relation to the manslaughter offence. I should say that I have felt compelled by law to put the statements of the young man to whom Thomas Kelly was speaking on his mobile phone at the time he was attacked, and of the young woman who was then in his company, to one side. Despite being in contact with Thomas at the time of the offence, they are not victims of it, nor family victims within the legislation.

5 I have, however, listened very carefully to the statements read by or on behalf of Thomas' immediate family, including his sister, maternal grandparents, and mother and father. From them I have formed the impression that Thomas must have been a wonderful young man full of promise for the future, and of whom his parents were justly proud.

6 I could not help noticing that when the statements were read in court many of the large number present were moved to tears by the accounts given. I also noticed that this included persons I took to be in court to support the offender, including his mother. The offender himself wept. I am sure that every right thinking member of our community has a great of deal of sympathy for the Kelly family. I offer sincere condolences on behalf of the Court, and personally.

7 I need to bear in mind that the punishment for homicide does not vary according to the personal qualities and characteristics of the victim. The law values all human life. However, "the qualities of a particular victim ... serve as a useful reminder of the quality of human life itself, and of all that is involved in taking it away" (R v McDonald (Unrep, 12/12/1995 NSWCCA). Even the friendless and unloved are entitled to the protection of the law, and to the laws denunciation of the conduct of persons who egregiously breach it by taking life. I remain very mindful of the grief and anguish suffered by the family (R v Dang [1999] NSWCCA 42 per Adams J at [25] - [26]). But I am not entitled to treat that consideration as a circumstance aggravating the offence.

8 It also needs to be understood that I am constrained by law in the use that I may make of the victim impact statements. Serious crimes are committed against the community at large, and it is the community which is entitled to exact retribution. Whether a victim's family seek leniency or vengeance, I am not entitled to take their attitude as to the proper sentence into account as a fact, matter or circumstance informing the appropriate sentence (R v Dawes [2004] NSWCCA 363 at [30] per Dunford J).

Facts

9 The facts relevant to the offending for the purpose of sentence have been agreed between the Crown and the offender (Exhibit A). I will summarise them for the purpose of these reasons. The offender started drinking at around 5pm after he and two associates purchased a carton of two-dozen mixed drinks, each can having the strength equivalent to 1.9 standard drinks. There is no agreement as to - nor any evidence from which I can find - precisely how much alcohol the offender drank, his blood alcohol concentration, or his actual state of intoxication at various times throughout the evening of 7th July 2012. However, the contents of the carton of mixed drinks had been consumed by him and two or three associates by about 7:30pm, when they arrived in the city by car. And by the time the group arrived at their first port of call, Darling Harbour, the offender was so affected by alcohol that he and one of his associates were yelling in the faces of passers-by.

10 The group were denied entry to the first bar they went to. Another bar apparently was not so discerning. The group were admitted and consumed some alcohol in the form of mixed drinks, before catching a taxi to Kings Cross where they went to a bar in Darlinghurst Road shortly before 9pm. There is no agreement about whether the offender consumed more alcohol in this bar. He told Mr Peter Champion, a clinical psychologist by whom he was assessed for the purpose of the proceedings on sentence (Exhibit 1), that he drank some shots there. Counsel are in agreement that the estimate of the number of shots given by the offender to Mr Champion is unlikely to be accurate, because of the effects of his obvious intoxication on 7th July 2012 upon his recall.

11 Despite the lack of precision in the evidence, I am satisfied beyond reasonable doubt that by 9:30pm on 7th July 2012, the offender was very drunk. I interpolate that drunkenness is not a mitigating circumstance, even in the case of a young man of eighteen years of age, as the offender was at the time of his offending. On the other hand, drunkenness may explain instances of criminal behaviour which the offender would not have committed sober.

12 After leaving the Darlinghurst Road bar, the offender and his associates sought entry to another bar in Bayswater Road. He and one of his friends were refused entry. A witness saw the pair in the vicinity of that bar about fifteen minutes before the first offence was committed. From the agreed facts I am satisfied that at that time the offender was in an agitated state. One of his friends was attempting to calm him down by physical restraint. The offender, in company of another, then made his way along Victoria Street to its intersection with Darlinghurst road. A witness described him as drunk. The offender grabbed the shirtfronts of two acquaintances he happened upon in the street. He apologised to one of them and hugged him, from these acts I infer that the offender was disinhibited by his intoxication and was either unable or unwilling to control his aggressive urges.

13 The first offence in time is the third count, the assault occasioning actual bodily harm on Marco Compagnoni. The victim was walking south along Victoria Road towards its intersection with Darlinghurst Road in the company of two friends. The victim noticed three males ahead who were loud and jostling with each other. The group included the offender and this may have been the incident I have just described. As he approached this group the victim fell behind his friends, I infer to give the jostlers a wide berth. Suddenly, without warning, and for no apparent reason, the offender elbowed the victim above his left eyebrow lacerating his skin and drawing blood. The victim kept walking and only noticed the injury a short time later. He received medical attention at St. Vincent's Hospital, but no stitches were required.

14 Thomas Kelly and two female friends, also heading south on Victoria Street, were approaching the place where Marco Compagnoni was assaulted, within one minute of its occurrence. They had caught a taxi from Town Hall to Kings Cross with the intention of meeting friends at a hotel in Bayswater Road. Thomas Kelly was on his mobile phone talking to a friend who was already at the hotel. He had no reason to be on the lookout for trouble. He was entirely unsuspecting of any danger. On the basis of the agreed facts, I am satisfied that if he had noticed the offender at all, Thomas Kelly had no reason to suppose he would attack him.

15 As Thomas Kelly and his friends passed by, the offender stepped out from the wall he was standing against and punched Thomas Kelly in the face with sufficient force to knock him down.

16 The witnesses differ about how Thomas fell. One of his companions recalled him being turned by the force of the punch and falling face first onto the pavement. The other young woman saw him fall directly backwards landing flat on his back. It may not be strictly necessary for this difference to be resolved, but on the basis of the agreed medical facts, I am satisfied beyond reasonable doubt that the latter account is more accurate. A CT scan of Thomas Kelly's head showed a massive fracture of the back of the skull, more on the right side. It also showed brain injury in the left frontal area of the brain. At post mortem, laceration and haematoma were found on the right side of the back of the head overlying the basal skull fracture. The neuropathologist attributed this to a severe single blow to the back of the head, which I infer was caused by Thomas' head striking the pavement heavily. The injuries to the left front area of the brain were said to be consistent with a significant blow to the back of the head, giving rise to a contrecoup effect.

17 Witnesses said the offender looked at Thomas Kelly as he lay on the ground. The offender appeared angry and intoxicated. He was then seen to run away towards the intersection of Victoria Street and Darlinghurst Road continuing onto the latter and on to Bayswater Road. I find that running away betrayed his consciousness of his guilt.

18 As the medical evidence I have recounted shows, Thomas Kelly had suffered a very severe head and traumatic brain injury. He was taken by ambulance to St. Vincent's Hospital where emergency surgery was carried out, but the surgeons were unable to save his life. Clinical testing indicated likely brain death. Following surgery he remained in the Intensive Care Unit, intubated and ventilated until 9th July 2012. Given his catastrophic injury, Thomas' family were required to confront their worst fears and consent to the removal of life support. Thomas died at 7:59pm on 9th July 2012.

19 Shortly after the attack on Thomas Kelly, the offender was outside the second Kings Cross club in Bayswater Road. He approached a person he had met before who went to greet him when the offender started swinging his elbows at the acquaintance's head, who pushed him away. When the offender recognised the acquaintance he hugged him and apologised but said, "I swear I am going to bash someone tonight". This statement, to my mind, supports the finding I have already made (at [12]) that by reason of his drunkenness, the offender was either unable or unwilling to control his aggressive urges. After this encounter, the offender wandered around the Kings Cross area until about 10:50pm, when he punched Matthew Serrao on the left side of his face. The victim felt pain and suffered some bruising. The attack was entirely unprovoked and the victim had been innocently walking along Roslyn Street toward Darlinghurst Road. After the assault, the victim remonstrated with the offender, demanding an apology. In response the offender swung another punch at the victim, missing him. A person in whose company he was pulled the offender away. Soon after, in Darlinghurst Road near its intersection with Roslyn Street, Rhyse Saliba accidentally bumped into the offender. He apologised immediately but the offender punched him in the face. One of the victim's companions, Aden Gazi, remonstrated with the offender, and he too was punched on the right side of his face for his trouble. Aden Gazi said, "Really? That's your best? If you're going to hit me, at least knock me out". I take this derision to be bravado on Mr Gazi's part.

20 The exchange developed into a pushing and shoving match between the victims of these last two assaults, on one side, and the offender and his companions, on the other, which was broken up by two police constables on the beat. The officers observed that the offender was affected by alcohol and was agitated and emotional, waving his arms around and yelling. This conduct was interspersed with interludes of passivity extending to embracing the victim Rhyse Saliba. Being unaware of the previous incidents involving the offender, including the very serious attack on Thomas Kelly, the police officers contented themselves with separating the two groups of young males. As they did so they observed that the offender was again acting aggressively towards Rhyse Saliba. The officers requested and received the offender's details, and subsequently he was served with an infringement notice for a summary offence.

Aftermath of the offending

21 The following day the offender was watching television with some of his associates when a news story was broadcast about Thomas Kelly's critical condition. The offender became quiet and looked worried. The offender said, "Was that one of my fights, I don't know". Over the subsequent days the offender made a number of similar comments to other persons. On 12th July he mentioned his concerns about being the perpetrator to the coach of his rugby league team. He said he was drunk, that he remembered being in a fight, but that he didn't know if he was the person who assaulted Thomas Kelly.

Arrest and legal developments

22 The offender was arrested at 7:20pm on 18th July 2012 at the Belmore Sports Ground. He was taken to Campsie police station where he was charged. Originally the charges included a charge of murdering Thomas Kelly.

23 The service of the police brief was not substantially completed until 27th February 2013. On 11th March 2013, representations were made on behalf of the offender offering to plead guilty to manslaughter and the four assault charges if the charge of murder was withdrawn.

24 Understandably, it took some time for the Director of Public Prosecutions to consider the representations and the defence offer to plead to the lesser offence of manslaughter. However, in the exercise of his discretion the Director issued instructions for the acceptance of the plea on 14th June 2013, and on 18th June 2013 the offender was committed for sentence by Central Local Court. He was arraigned in the Supreme Court on 6th September 2013, and on that occasion confirmed his guilty plea to all charges.

Prior offences

25 The offender has a criminal record as a juvenile. His record is not very long or extensive, and with one exception to which I will return, there are no prior crimes of significant violence. However, it does extend to instances of taking and driving a car without the consent of the owner, damaging property, assaulting an officer and affray. These matters, taken together, lead me to infer that at least to some degree the offender has in the past exhibited an attitude of disregard for the law. He has not always responded to leniency and has required sentences of probation and control orders.

26 Of significance is a previous conviction for an offence of assault occasioning actual bodily harm, committed on 28th January 2011. For various reasons, which I need not go into, the offender was not dealt with in respect of that matter by the Children's Court until 7th June 2012, one month before the current offending. That previous offence involved the offender gatecrashing a party. The victim was the young host of the party who was attempting to bring the party to an end at 11:45pm. The offender was intoxicated. He threw empty bottles at the victim and punched him in the face. When interviewed by police he made full admissions. He also ascertained the identity of the victim through facebook and left an apology on the victim's facebook page.

27 As I have said, that matter was dealt with in the Children's Court on 7th June 2012, when the offender was released on eighteen months probation, which included the condition that he be of good behaviour.

28 That the offender was at conditional liberty at the time of these offences is an aggravating factor of some significance.

29 After his arrest for these offences, the offender was called up to be dealt with again by the Children's Court for the prior offence, which imposed a control order, in other words, imprisonment for a period of two months commencing on 18th July 2012, the date he was taken into custody after his arrest for these offences. I interpolate that I have accepted the submission of the Crown that to give weight to that sentence for previous offending, the sentences I pass on the offender today should commence after the expiration of the control order on 17th September 2012.

The circumstances of the offender

30 The offender was born on 9th March 1994. He was nearly eighteen years and four months old at the date of his offending, and is now nineteen years and eight months. Both parents are of Aboriginal heritage. I bear that in mind only for the purpose of reminding myself that it may be a circumstance relevant to a degree of social disadvantage in the offender's upbringing.

31 The offender's father was involved in criminal activities and his mother had separated from the father at the time of the offender's birth. The offender's father was in gaol during the offender's infancy. After his release, the offender's parents attempted to reconcile and during that time the offender's mother fell pregnant with his sister. However, his father abused drink and illicit drugs. He was occasionally violent and certainly abusive. On one occasion during the offender's childhood, his father struck him across the face with a bamboo cane as punishment for a trivial misdemeanour.

32 The offender grew up in his mother's care and without the benefit of love, support and guidance from his father. He is apparently a talented junior rugby league player. He formed a close relationship with his football coach, and I infer from his mother's statement, that man may have been something of a father figure to the offender. Unfortunately he died of cancer, which the offender's mother states was very confronting for the offender.

33 The offender completed primary school at Toongabbie without much trouble. His high school education has been fractured, partly due to an expulsion for his involvement in his juvenile criminal activities. He attempted to restart high school more than once, perhaps as part of the requirements of his probation, but it was difficult for him being older than the other students.

34 When not in school he was able to obtain work with the help of family or friends. By late 2011 he seemed to be getting his life on track. He was continuing to play rugby league at a promising level, had completed year ten at school and was involved in a program which combined years eleven and twelve with vocational training. He had formed a relationship and was living in the home of his girlfriend, having been well accepted by her parents.

35 Things have, of course, drastically changed because of his offending. He has lost the relationship, and the progress he seemed to be making in life has been, of necessity, completely derailed.

36 I have had the benefit of reading the report of Mr Champion, the clinical psychologist (22nd August 2013 - Exhibit 1). I was impressed by Mr Champion's balanced, objective approach. He does not suggest that the offender is suffering from mental or emotional disorder, other than some depression and anxiety reactive to his offending, incarceration and the sentencing process. Nor is the offender intellectually disabled.

37 Mr Champion assessed the offender as being of average intelligence at the lower end of the range. He described him as "not the most sophisticated of thinkers". There is no evidence that chronic alcohol or substance abuse is a feature of the offender's life, but the current offending, and the previous assault occasioning actual bodily harm, are associated with binge drinking. Mr Champion said (page 10[48] - Exhibit 1):

Mr. Kieran Loveridge is a 19 year old young man who is of basic average intelligence and is literate. He reports a difficult upbringing. He completed a year 10 course and was, he reports, pursuing higher education and training at the time of the present offences. He denied any chronic pattern of substance abuse, though problems appear to have arisen on a number of occasions (including the present offences) as a result of alcohol abuse. He does not appear to be mentally ill.

38 Mr Champion considered that the offender may need psychological and psychiatric support to come to terms with the sentence imposed. He suggested that he required access to education and counselling programs of the type offered by the Corrective Services Commission for violent offenders, and those who have alcohol issues. It is pleasing to record that the offender has already commenced the getting SMART drug and alcohol program through his own initiative, and at his own request he has been referred for assessment for participation in the "violent offenders program".

39 I have had the benefit of reading references from members of the community who know the offender and who generally speak well of him. Among those who have spoken up for him is the mother of his former girlfriend. She found him well mannered, polite and grateful for the assistance she provided him. She supports the account that at the time of the offending, the offender was in the process of turning his life around. Whilst he lived in her home he worked and always paid his board. She has witnessed his depression and anxiety in gaol.

40 The offender has the support of responsible people at his football club, who also speak well of his family. Another member of the community speaks highly of the assistance that the offender has given in helping to care for her severely disabled eighteen year old son. The parents of a football and school friend speak well of the offender and his conduct in their home. They too confirm that the offender seemed to be on the right track before this offending. The mother of another friend supports the offender's account to Mr Champion that alcohol was not a feature of his lifestyle. From what she writes, I would infer that he is regarded as a good-natured person socially.

41 The offender chose not to give evidence before me. Notwithstanding this, however, there is material before me which satisfies me that he is remorseful for his offending and particularly for taking the life of Thomas Kelly.

42 Mr Champion made the following assessment (Exhibit 1 page 9[44]):

In relation to the issue of remorse... he expressed some insight into the offending behaviour and the impact of it on others (particularly Mr. Kelly and his family). He was able to articulate his remorse and it was pleasing to note that it was primarily directed towards the victims not he himself; given that many adolescents tend to initially express remorse on the basis of the impact that the charges have had on their own life and their family. He spoke of having lost many friends, his girlfriend, his education and employment as a result of his actions, but stated these as simple facts, rather than seeking special consideration.

43 Ms Donna Shepherd, a counsellor with Corrective Services reported (affidavit C.E. O'Neil, 24th October 2013):

During [his] counselling session Kieran was open and communicative, he expressed deep remorse and regret and he appeared to have insight into his substance abuse behaviour.

Kieran appeared to be deeply affected when he read the "Victim Impact Statements" and as a result he has been referred to a psychologist for support.

44 The mother of his former girlfriend (Exhibit 3) said:

I have observed Kieran suffered depression and anxiety since he was incarcerated and I know in my heart if he could change things he would.

45 As I have already pointed out the offender wept in court when Mr and Mrs Kelly read their Victim Impact Statements, which I took as a sincere expression of his remorse.

Some relevant legal principles

46 In passing sentence I will bear in mind the principles I am about to discuss. The nature of the sentencing task is to fix the appropriate sentence for the offence and the offender having regard to all relevant facts, matters and circumstances. An important principle is that the sentence must fit the offending, having regard to its objective seriousness; that is, the offender must be adequately punished for his offending. At the same time, a sentence should not exceed what is proportionate to the crime.

47 When, as here, an offender is being sentenced for more than one offence, the appropriate sentence must be fixed for each offence before consideration of the structure of the sentence, which includes questions of cumulation, concurrence and totality. It is important in this regard not to punish the offender twice for the same criminality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 624.

48 The most serious crime for which the offender is to be sentenced is manslaughter, not murder. These are different crimes involving a different order of seriousness. It would be a grave error to mistake them. It is solely for the prosecution to decide what charges to bring. This is nothing to do with the Court. It is for the offender to decide how to plead. Again, this has nothing to do with the Court. The Court's only task is to sentence the offender for his offences to which he has pleaded guilty, and no other.

49 The crime of manslaughter to which the offender has pleaded guilty is the category known as manslaughter by an unlawful and dangerous act. The elements of this form of manslaughter are as follows:

(1) That the punching of the deceased was an act of the offender which caused the death of the deceased;

(2) That act was deliberate;

(3) That act was both unlawful and dangerous.

50 An act is unlawful if it involves the deliberate application of force to another person without that person's consent.

51 An act is dangerous if it is such that a reasonable person in the position of the offender ought to have realised that by that act the deceased was being exposed to an appreciable risk of serious injury. It is clear from this formulation that the question of dangerousness must be decided by the application of an objective test, namely, whether a reasonable person in the position of the offender, performing the very act which he performed, i.e. punching the deceased so as to knock him down, would have realised that he was exposing Thomas Kelly to an appreciable risk of serious injury. It is not sufficient to show that there was a risk of some harm resulting, although not serious harm. Moreover a reasonable person is sober.

52 Unlike murder, in manslaughter the act of the offender need not be done with any particular intention to injure. The offence of manslaughter is complete even if the offender intended no injury and even if the offender had not actually realised that he was exposing the deceased to an appreciable risk of serious injury. As I have said, the question is an objective one of whether a reasonable person in the position of the offender would have realised that he was exposing the deceased to an appreciable risk of serious injury. As an intention to injure is not a necessary element of the offence, it follows that it would be no answer for the accused to say that the death of Thomas Kelly was unintended and unexpected by him. By his plea of guilty, the offender has admitted these essential elements of the offence.

53 I have set out the ingredients of this kind of manslaughter at some length so that one may appreciate the nature of the criminality involved. In the context of the facts as set out above, the ingredients of the four assaults I think speak for themselves.

54 The maximum penalty prescribed by parliament is an important guidepost to the intrinsic seriousness of a criminal offence. For the manslaughter of Thomas Kelly, the maximum penalty is 25 years imprisonment. For the assault of Marco Compagnoni occasioning actual bodily harm, the maximum is five years imprisonment. And for each of the common assaults, two years imprisonment. It is important to bear in mind that the maximum penalty is reserved for the worst possible case of that type of offending.

55 As the offender pleaded guilty at an early stage he is entitled to a discount on the sentence that would otherwise have been imposed for the so-called utilitarian value of his early plea. The Crown accepts that this is so and has fairly conceded that the degree of discount due is in the range of 20 per cent to 25 per cent. The offender is entitled to this discount in respect of each offence.

56 I am not entitled to sentence the offender to imprisonment unless I am persuaded that no penalty other than imprisonment is appropriate. And where I impose a term of imprisonment of six months or less, I need to make a record of my reasons for doing so. This will be relevant in dealing with the assault offences.

57 A non-parole period when fixed is the minimum period of time that justice requires the offender to serve in prison. Unless I find special circumstances, the additional term during which the offender may be eligible for parol must not exceed one-third of the non-parole period, in the absence of special circumstances.

58 Sentencing is not a purely logical exercise. Its purposes are various, overlapping and competing. They include protection of society, general and specific deterrence, retribution and denunciation, and reform and rehabilitation: Veen v The Queen (No 2) [1988] HCA 14 164 CLR 465; s3A Crimes (Sentencing Procedure Act) 1999 (NSW).

Consideration

59 As I have said I must fix the appropriate sentence for each offence. Where, as here, the offending occurred over the space of one hour within a confined location, involving a similar pattern of behaviour, there will be some common features, and I need to avoid double counting. Those common features include drunken conduct in a public place, the random nature of the attacks on unsuspecting passers-by, the consideration that the offender was on probation at the time, and his criminal record, including the past drunken assault. The fact that a series of crimes were committed demonstrates a pattern of disregard for the law which elevates the seriousness of the individual instances of offending. As I have already pointed out, the law always treats the breach of conditional liberty as a matter aggravating the seriousness of the offending; that these were drunken assaults in public brings into play the considerations of protection of society, the need for denunciation, retribution and general deterrence. All of these considerations are relevant to the objective seriousness of the offending.

60 I will deal with the offences in ascending order of seriousness. Dealing with each case of common assault, objectively there is little difference between them. Had one occurred in isolation, a different view of objective seriousness might have been formed, but for the reasons I have given I consider each one to be an offence of some seriousness. I would put the assault occasioning actual bodily harm on Mr Compagnoni at the same level of seriousness for that category of offence.

61 Assessing the seriousness of a manslaughter charge is always difficult. It is often said of manslaughter that it is a most protean offence, because it covers a wide spectrum of offending from a practical joke gone wrong to a crime falling just short of murder. It is that latter category which is likely to produce the worst case and the present offending, significant as its consequences were, does not fall into that worst case category. However, the elements I have already referred to, which the manslaughter of Thomas Kelly has in common with the lesser offending, puts the case into the category of some seriousness. It is not to the point either way that the offender did not intend to kill Thomas, or expect him to die.

62 It needs to be borne in mind, in assessing the objective seriousness of the offences, that the attacks were on the whole spontaneous, in the sense of being unpremeditated, even if because of his drunkenness the offender was unable to control his aggression. That he may have in his drunken state decided to give vent to it does not detract significantly from this consideration.

63 It is obvious that for the manslaughter of Thomas Kelly no penalty other than imprisonment is appropriate. I have reached the same conclusion in respect of each of the other offences.

64 As I have previously said, my task is to fix the appropriate sentence for the offence and the offender, and it is relevant to bring to mind matters which may favour some degree of leniency.

65 First, there is the offender's guilty plea, and I have decided that the appropriate discount for each offence is 25 per cent of the sentence which would otherwise have been passed.

66 I am also persuaded on the balance of probabilities that the remorse the offender has shown is genuine and this augers well for his prospects of rehabilitation and reform, considerations in the case of a young offender which facilitate the protection of the community in the longer term upon his release.

67 The courts have an inclination to leniency in the case of a young offender. The purpose of this is to give the young offender a chance. However, other young people need to be able to walk our streets in safety. A breach of the peace of the type committed by the offender, notwithstanding his youth, calls for denunciation of his conduct, the exaction of retribution on behalf of the community and the deterrence of others who may put themselves in the same position.

68 To the considerations of remorse and prospects of rehabilitation to which I have referred, I would add that in my judgment the offender is very unlikely to re-offend. I have the very distinct impression that from the tragic consequences his offending has brought about, he has well and truly learnt his lesson. However, he will need to muster his fortitude and resolve to maintain that determination over what for him will seem a lengthy, and onerous, term of imprisonment.

69 Moreover, I have borne in mind the offender's relative social disadvantage and the difficulties of his upbringing. I have also taken into account the evidence of his efforts to overcome those disadvantages through education, training and employment. His offending has interrupted those efforts. For his own sake and in the interests of the community I hope he maintains those efforts so far as he can in prison and on his release. In this regard it is a good sign, and to his credit, that he has already initiated his participation in appropriate courses of rehabilitation.

70 I find that the combination of the offender's youth, remorse, prospects of rehabilitation and the need to structure sentences for multiple offences constitute special circumstances. In the end however, it is the preservation of the statutory ratio over multiple sentences that involve partial accumulation that will hold the most sway, and the amelioration of the statutory ratio in favour of the offender will for this reason necessarily be very minor.

71 For each of the offences of common assault, but for his plea, I would have imposed a sentence of about six months imprisonment. I have decided that I will round the sentence otherwise produced by strictly applying a 25 per cent discount, down to four months to avoid imbuing the process with an unreal air of precision. In due course I will impose a fixed term of four months imprisonment for each.

72 For the offence of assault occasioning actual bodily harm, I would have taken a sentence of twelve months imprisonment as my starting point. After the discount this would have been reduced to nine months. Having regard to my finding of special circumstances, I would have varied the statutory ratio to impose a non-parole period of six months. As he must spend longer in gaol for the manslaughter of Thomas Kelly, I have decided that the practical approach is to simply impose a fixed term of six months duration.

73 I turn now to the most difficult part of my task, which is sentencing this offender for the manslaughter of Thomas Kelly. In approaching it I have borne in mind all of the considerations set out above. During the course of argument, counsel on each side of the record referred me to comparable decisions in the interests of promoting consistency of approach. I do not propose to deal with the cases in great detail. I bear in mind that what is required is consistency of principle, not numerical equivalence: Hili v The Queen [2010] HCA 45; 242 CLR 520. The previous decisions establish a range of sentences actually imposed. They do not establish the correctness of that range: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [303]-[305].

74 The various cases referred to were all put forward as examples of cases where a single blow knocked the victim to the ground and death was caused by the victim's head hitting the ground, rather than by the injury directly inflicted by the punch. Most involved a relatively young offender who pleaded guilty. In R v Castle [2012] NSWSC 1603 an offender aged 40 at the time of the offence pleaded guilty to manslaughter when he struck a woman with a single blow in the course of robbing her. To that extent, the case is not similar to the present case. After a 25 per cent discount for an early plea, a non-parole period of 5 years and 8 months imprisonment was imposed, and a total sentence of 7 years and 6 months. In Donaczy v R [2010] NSWCCA 143, a 29 year old who had negative contact with his victim inside licensed premises struck him with a single blow outside the pub. The victim fell, striking his head on the ground. There was a 20 per cent discount for an early plea, and a finding of special circumstances. The non-parole period fixed was 3 years and 6 months, with a total sentence of 6 years. In R v Bashford [2007] NSWSC 1380, a 24 year old offender, who was at liberty conditionally, punched his victim outside a hotel. He received a 25 per cent discount for his plea, and a non-parole period of 3 years and 6 months was fixed, with a total sentence of 5 years and 3 months.

75 In R v Smith [2008] NSWSC 201, the offender was 22 years of age, he received a 25 per cent discount, a non-parole period of 2 years and 6 months, and a total sentence of 3 years and 9 months. In R v O'Hare [2003] NSWSC 652, a 22 year old offender who received a 20 per cent discount for his plea received a non-parole period of 3 years and 6 months, with a total term of 6 years. In R v Greenhalgh [2001] NSWCCA 437, a 37 year old offender of low intellectual ability received a non-parole period of 4 years and 6 months with a total sentence of 6 years and 9 months. In R v Risteski [1999] NSWSC 1248, a 22 year old offender received a non-parole period of 3 years 6 months and a total sentence of 5 years. Finally, in KT v R [2008] NSWCCA 51 a sixteen year old with a 25 per cent discount received a non-parole period of 4 years and a total sentence of 6 years.

76 These cases, which both the Crown and the defence drew to my attention, suggest most commonly for broadly similar offending for relatively young offenders a non-parole period of 3 years and 6 months is regarded as appropriate. A head sentence of between 5 and 6 years, depending on whether special circumstances are found, is commonly imposed. Occasionally higher or lesser sentences are imposed according to the particular circumstances of the case. I acknowledge that these cases provide some guidance.

77 Bearing in mind all of the facts, matters and circumstances to which I have referred and deriving some guidance from the similar cases the Crown and defence have drawn to my attention, but for the guilty plea I would have imposed a sentence of 8 years on the offender for the manslaughter of Thomas Kelly. This will be reduced to 6 years, and having regard to my finding of special circumstances I consider that the minimum time that justice requires the offender to serve for this offence is 4 years imprisonment.

78 I turn now to questions of cumulation, concurrency and totality. It seems to me important that the offender spend some time in prison solely referrable to each offence. After all, there are five offences having five victims, and the criminality involved in each cannot be equated. This suggests then that there must be some degree of at least partial accumulation. On the other hand, the total effective sentence should not be so large as to be crushing to a young offender, stifling his prospects of rehabilitation. This is in the community's interest, as well as his own. Therefore the approach that I have adopted is that a structure should be imposed which sees the offender spending some months in prison solely referrable to each of the common assaults, and the assault occasioning actual bodily harm. The structure I have adopted means that the offender will not start his sentence for the manslaughter of Thomas Kelly until 18th November next. Effectively, the manslaughter sentence will be served consecutively with the other sentences of imprisonment (see s47(2)(b) Crimes (Sentencing Procedure) Act).

Sentences imposed

79 Kieran Loveridge, on your plea of guilty I convict you of each count in the indictment. I impose the following sentences:

(1) For the third count, the offence of assaulting Matthew Serrao, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th September 2012 and expiring on 17th January 2013;

(2) For the fourth count, the offence of assaulting Rhyse Saliba, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th November 2012 and expiring on 17th March 2013;

(3) For the fifth count, the offence of assaulting Aden Gazi, I sentence you to a fixed term of imprisonment of 4 months commencing on 18th March 2013 and expiring on 17th July 2013;

(4) For the second count, the offence of assaulting Marco Compagnoni occasioning him actual bodily harm, I sentence you to a fixed term of imprisonment of 6 months commencing on 18th May 2013 and expiring on 17th November 2013;

(5) For the first count, the manslaughter of Thomas Kelly, I sentence you to a term of imprisonment having a non-parole period of 4 years commencing on 18th November 2013 and expiring on 17th November 2017, with an additional term of 2 years commencing on 18th November 2017 and expiring on 17th November 2019.

The earliest date on which you will be eligible for release on parole is 18th November 2017.

80 The total effective sentence therefore is one of 7 years and 2 months with an effective non-parole period of 5 years and 2 months.

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Amendments

22 November 2013 - Minor typographical corrections
Amended paragraphs: 24, 43, 45, 75

Decision last updated: 22 November 2013