Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: R v Loveridge [2014] NSWCCA 120
• Hearing dates: 7 May 2014
• Decision date: 04 July 2014
• Before: Bathurst CJ at [1]; Johnson J at [1]; R A Hulme J at [1]

Decision

1. Crown appeal allowed.

2. Sentences imposed in the Supreme Court of New South Wales on 8 November 2013 are quashed;

3. In their place, the Respondent is sentenced as follows:

(i) for the offence of assault upon Matthew Serrao (Count 3) - sentenced to a fixed term of imprisonment of nine months commencing on 18 September 2012 and expiring on 17 June 2013;

(ii) for the offence of assault upon Rhyse Saliba (Count 4) - sentenced to a fixed term of imprisonment of 11 months commencing on 18 March 2013 and expiring on 17 February 2014;

(iii) for the offence of assault upon Aden Gazi (Count 5) - sentenced to a fixed term of imprisonment for 13 months commencing on 18 October 2013 and expiring on 17 November 2014;

(iv) for the offence of assault occasioning actual bodily harm upon Marco Compagnoni (Count 2) - sentenced to imprisonment comprising a non-parole period of 16 months commencing on 18 July 2014 and expiring on 17 November 2015, with a balance of term of six months commencing on 18 November 2015 and expiring on 17 May 2016;

(v) for the manslaughter of Thomas Kelly (Count 1) - sentenced to imprisonment comprising a non-parole period of seven years commencing on 18 November 2015 and expiring on 17 November 2022 with a balance of term of three years and six months commencing on 18 November 2022 and expiring on 17 May 2026.

4. The earliest date upon which the Respondent will be eligible for release on parole is 18 November 2022.

• Catchwords: CRIMINAL LAW - sentence - Crown appeal - Respondent pleaded guilty and sentenced in relation to three counts of assault, one count of assault occasioning actual bodily harm and one count of manslaughter - offences occurred on a single evening during which substantially intoxicated Respondent repeatedly attacked randomly selected strangers on public streets with punches to face and head - second attack resulted in manslaughter - Respondent comprehended force of blow to deceased and observed victim prone on ground before running away and committing three further offences - young offender subject to conditional liberty - disadvantaged upbringing - whether sentencing Judge's reasons infected by specific errors - failure to take into account need for general deterrence in relation to crimes of violence committed by intoxicated persons against vulnerable and unsuspecting victims in public places - failure to take into account specific deterrence in circumstances where offender had unresolved aggression and alcohol issues, previous conviction and subject to conditional liberty - error in characterising offences as "spontaneous" and in failing to find intent to injure - individual sentences and total effective sentence failed to reflect gravity of offending - no single category of "one-punch" manslaughter cases revealing range of sentences - context, surrounding circumstances and consequences of offending conduct meant sentences manifestly inadequate - residual discretion should not be exercised - Respondent re-sentenced - total effective term of 13 years and eight months' imprisonment with non-parole period of 10 years and two months
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912
• Cases Cited: AI v R [2011] NSWCCA 95; Attorney General's Reference No. 60 of 2009 (Appleby and Ors) [2009] EWCA Crim 2693; [2010] 2 Cr App R(S) 46; Barbaro v The Queen [2014] HCA 2; 88 ALJR 372; Bourke v R [2010] NSWCCA 22; 199 A Crim R 38; Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022; Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; Donaczy v R [2010] NSWCCA 143; Green v The Queen [2011] HCA 49; 244 CLR 462; Heitanen v R [2012] VSCA 173; Hili v The Queen [2010] HCA 45; 242 CLR 520; Hopley v R [2008] NSWCCA 105; House v The King [1936] HCA 40; 55 CLR 499; KT v R [2008] NSWCCA 51; 182 A Crim R 571; Lowndes v The Queen [1999] HCA 29; 195 CLR 665; Markarian v The Queen [2005] HCA 25; 228 CLR 357; MB v R [2013] NSWCCA 254; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549; Pattalis v R [2013] NSWCCA 171; Paxton v R [2011] NSWCCA 242; 219 A Crim R 104; Pearce v The Queen [1998] HCA 57; 194 CLR 610; R v AEM [2002] NSWCCA 58; R v Blacklidge (NSWCCA, unreported, 12 December 1995); R v Carroll [2010] NSWCCA 55; 77 NSWLR 45; R v CMB [2014] NSWCCA 5; R v Dinh [2010] NSWCCA 74; 199 A Crim R 573; R v Duckworth [2012] EWCA Crim 1712; [2013] 1 Cr App R(S) 83; R v Fahda [2013] NSWCCA 86; R v Fidow [2004] NSWCCA 172; R v Folkes [2011] EWCA Crim 325; [2011] 2 Cr App R(s) 76; R v Gavel [2014] NSWCCA 56; R v GWM [2012] NSWCCA 240; R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at 458; R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520; R v Huang [2010] NSWCCA 68; 200 A Crim R 419; R v JW [2010] NSWCCA 49; 77 NSWLR 7; R v Loveridge [2013] NSWSC 1638; R v McKenna [2007] NSWCCA 113; R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94; R v Palu [2002] NSWCCA 381; 134 A Crim R 174; R v Qutami [2001] NSWCCA 353; 127 A Crim R 369; R v Smith [2007] NSWCCA 100; R v Wilkinson (No. 5) [2009] NSWSC 432; R v Williscroft [1975] VR 292; Reference By the Attorney General Under Section 36 Criminal Justice Act 1988 [2005] EWCA Crim 812; RR v R [2011] NSWCCA 235; 216 A Crim R 489; Ta'ala v R [2008] NSWCCA 132; The Queen v Lavender [2005] HCA 37; 222 CLR 67; Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53; ZZ v R [2013] NSWCCA 83
• Texts Cited: New South Wales Barristers' Rules
• Category: Principal judgment
• Parties: Regina (Crown); Kieran Loveridge (Respondent)
• Representation: Counsel: Ms N Noman SC (Crown); Mr PR Boulten SC; Ms LC Hutchison (Respondent); Solicitors: Solicitor for Public Prosecutions (Crown); Aboriginal Legal Service (NSW/ACT) Limited (Respondent)
• File Number(s): 2012/223921
• Publication restriction: Nil

Decision under appeal

• Citation: R v Loveridge [2013] NSWSC 1638
• Date of Decision: 2014-11-08 00:00:00
• Before: Campbell J
• File Number(s): 2012/223921

Judgment

1 THE COURT: The Crown appeals under s.5D Criminal Appeal Act 1912 against sentences imposed upon the Respondent, Kieran Loveridge, on 8 November 2013.

2 The Notice of Appeal was signed by the Director of Public Prosecutions on 15 November 2013 and served upon the Respondent in custody on the same day.

The Offences and Sentences

3 The Respondent pleaded guilty to the following offences:

(a) Count 1 - manslaughter of Thomas Kelly at Potts Point on 9 July 2012, an offence punishable by a maximum penalty of 25 years' imprisonment (ss.18(1)(b) and 24 Crimes Act 1900);

(b) Count 2 - assault occasioning actual bodily harm upon Marco Compagnoni at Potts Point on 7 July 2012, an offence punishable by a maximum penalty of imprisonment for five years (s.59(1) Crimes Act 1900);

(c) Count 3 - assault upon Matthew Serrao at Potts Point on 7 July 2012, an offence punishable by a maximum penalty of two years' imprisonment (s.61 Crimes Act 1900);

(d) Count 4 - assault of Rhyse Saliba at Potts Point on 7 July 2012, an offence also punishable by two years' imprisonment (s.61 Crimes Act 1900); and

(e) Count 5 - assault of Aden Gazi at Potts Point on 7 July 2012, a further offence also punishable by two years' imprisonment (s.61 Crimes Act 1900).

4 The sentencing Judge imposed the following terms of imprisonment:

(a) Count 3 - a fixed term of four months' imprisonment commencing on 18 September 2012 and expiring on 17 January 2013.

(b) Count 4 - a fixed term of four months' imprisonment commencing on 18 November 2012 and expiring on 17 March 2013.

(c) Count 5 - a fixed term of four months' imprisonment commencing on 18 March 2013 and expiring on 17 July 2013.

(d) Count 2 - a fixed term of six months' imprisonment commencing on 18 May 2013 and expiring on 17 November 2013.

(e) Count 1 - imprisonment comprising a non-parole period of four years commencing on 18 November 2013 and expiring on 17 November 2017, with a balance of term of two years commencing on 18 November 2017 and expiring on 17 November 2019.

5 The fixed terms of imprisonment were set by his Honour upon the basis that they represented what otherwise would have been the non-parole periods for those offences.

6 The total effective term of imprisonment involved a non-parole period of five years and two months commencing on 18 September 2012 and expiring on 17 November 2017, with a balance of term of two years commencing on 18 November 2017 and expiring on 17 November 2019.

 

Grounds of Appeal

7 The Crown relies upon the following grounds of appeal:

(a) Ground 1 - his Honour erred by failing to take into account the additional need for general deterrence due to the prevalence of alcohol-fuelled offences of violence.

(b) Ground 2 - his Honour erred by failing to take into account the need for specific deterrence of the Respondent.

(c) Ground 3 - his Honour erred by double counting subjective features when making a finding of special circumstances.

(d) Ground 4 - his Honour erred in failing to take into account material considerations in relation to intent and risk.

(e) Ground 5 - his Honour erred in classifying each offence as spontaneous.

(f) Ground 6 - his Honour failed to accumulate the sentences sufficiently.

(g) Ground 7 - the sentences, individually and in total, are manifestly inadequate.

Facts of Offences

8 A Statement of Agreed Facts was tendered at the sentencing hearing. In addition, a report of Mr Peter Champion, clinical psychologist, dated 22 August 2013 was tendered in the Respondent's case, together with a number of references. The Respondent did not give evidence at the sentencing hearing.

9 The Respondent was born in March 1994. As at 7 July 2012, he was 18 years and four months old. He was living, at that time, with his family in Seven Hills.

A Saturday Night Out Begins - Purchase and Consumption of Alcohol

10 At about 5.00 pm on Saturday, 7 July 2012, the Respondent and two companions purchased 24 cans of vodka drinks called "Smirnoff Ice Double Black", with each can containing 1.9 standard drinks (giving a total of 45.6 standard drinks contained in the carton).

11 The three youths drove to the residence of one of them at Quakers Hill where each consumed one can.

Journey by Road to the City - Further Consumption of Alcohol

12 At about 6.30 pm, they were picked up by a fourth male and departed with the carton, then containing at least 18 cans. A fifth person joined them on this journey.

13 The five young men then set off by car from Quakers Hill bound for the Star City Casino, arriving at about 7.30 pm. During the journey, the Respondent and three of his companions consumed most of the remaining cans from the carton.

14 Upon arrival, the five youths walked to the Cargo Bar at Darling Harbour. The male driver noticed that the Respondent was affected by alcohol at that time. As they were walking, the Respondent and one of his companions went up to people, shouting "Raaaaa" at them.

15 The Respondent and two of his companions were denied entry to the Cargo Bar, but were admitted to the Pontoon Bar at Darling Harbour, where they each had a vodka raspberry.

 

A Taxi Journey From Darling Harbour to Kings Cross

16 Between about 8.45 pm and 9.00 pm, the Respondent and two of his companions travelled by taxi to Brougham Street, Kings Cross. They walked to the Dragon Lounge at 111 Darlinghurst Road, Kings Cross. They left the Dragon Lounge and walked to The Club located at 33 Bayswater Road, Potts Point. The Respondent and one of his companions were refused entry to those premises because they were not on The Club's guest list.

Aggressive Conduct of the Respondent

17 Between about 9.30 pm and 9.45 pm, the Respondent appeared agitated. A witness observed the Respondent's companion pushing him against a wall in an attempt to calm him down.

18 In another incident, two males saw the Respondent with another male as they were walking towards them between the Kings Cross Railway Station and the intersection of Victoria Street and Darlinghurst Road. The two males went to shake hands with the Respondent who "appeared drunk", but the Respondent said to them "Who are youse?" and grabbed their shirts. The Respondent let go of one of them, said "Oh sorry" and gave him a hug.

Count 2 - Assault Occasioning Actual Bodily Harm Upon Marco Compagnoni

19 At about 10.00 pm, Marco Compagnoni was walking along Victoria Street with two companions in the direction of Darlinghurst Road. He observed three males (the Respondent and two companions) on Victoria Street who were being loud, fighting and pushing each other. As they approached the males, Mr Compagnoni walked behind his two companions.

20 However, suddenly, without warning and for no apparent reason, the Respondent elbowed Mr Compagnoni above his left eyebrow, lacerating his skin and drawing blood.

21 The Respondent and Mr Compagnoni were complete strangers.

22 Mr Compagnoni kept walking, but shortly afterwards he realised that he was bleeding from above the eyebrow. He went to St Vincent's Hospital where the cut was cleaned. The cut did not require any stitches.

23 The assault upon Mr Compagnoni took place very shortly before, and in the same area as, the attack on Thomas Kelly, who was recorded on CCTV footage walking along the same part of Victoria Street some 40 seconds after Mr Compagnoni.

Count 1 - Manslaughter of Thomas Kelly

24 At about 9.45 pm, Thomas Kelly (aged 18 years and six months) arrived at Kings Cross by taxi with two female companions. They were walking along Victoria Street at about 10.03 pm. They were planning to meet friends at the Trademark Hotel at 1 Bayswater Road, Kings Cross.

25 As they were walking, Mr Kelly was speaking to a friend on his mobile telephone saying, "We are near the Coke sign".

26 As Mr Kelly and his companions walked peacefully along the footpath, the Respondent was standing against the wall of the Mercure Hotel. The Respondent took two or three steps towards Mr Kelly and his companions. For no reason, and without notice, the Respondent punched Mr Kelly to the head whilst he was speaking on the telephone. The punch carried sufficient force to knock Mr Kelly to the ground, causing him to hit his head on the pavement. He was completely limp and did not move. A pool of blood started to form around his head. The impact of the pavement caused a severe fracture to Mr Kelly's skull and severe injuries to his brain, which proved fatal.

27 Mr Kelly and the Respondent were complete strangers.

28 Mr Kelly's two companions described the Respondent's entirely unprovoked and gratuitous attack upon Mr Kelly. One saw the Respondent's "forceful" punch connect to the left side of Mr Kelly's face at about eye level, causing his whole body to turn around. She said that the punch "looked like it required a lot of effort and because the effect it had on Thomas Kelly's body".

29 The second companion saw the Respondent punch Mr Kelly around the nose area and he then fell "directly backwards landing flat on his back". In light of the medical evidence, the sentencing Judge was satisfied that Mr Kelly did fall directly backwards and land flat on his back.

30 The second companion also saw the Respondent look at Mr Kelly. The Respondent appeared to her to be "angry and possibly intoxicated". She watched as the Respondent turned around slowly and sprinted towards the intersection of Victoria Street and Darlinghurst Road.

31 The sentencing Judge found that the Respondent's act of running away "betrayed his consciousness of guilt": R v Loveridge [2013] NSWSC 1638 at [17].

32 The Respondent admitted to Mr Champion that he had a vague memory of seeing blood on the ground and later seeing an ambulance.

33 An ambulance arrived about six or seven minutes after Mr Kelly was struck. An ambulance officer observed that Mr Kelly was breathing, but did not respond to verbal or painful stimuli. His airway was occluded with blood and saliva. He had a strong regular pulse, but his pupils were fixed. His condition was assessed as "severe and life threatening".

 

Fatal Injuries to Mr Kelly

34 After the fixing of a spinal collar, Mr Kelly was placed on a stretcher and taken to St Vincent's Hospital, where he arrived at 10.33 pm. He was intubated and ventilated. There was blood from his right ear canal. He was deeply unconscious with fixed, dilated pupils and no movement in his limbs.

35 A cranial scan indicated intracranial haemorrhaging and other features constituting a very severe head injury and high intracranial pressure and a fracture of the base of the skull on the right side. An urgent operation was undertaken, but the intracranial pressure rose following the operation. Mr Kelly remained in intensive care until 9 July 2012. However, given the catastrophic nature of his injury, the decision was taken, in conjunction with his family, to remove life support and he was pronounced deceased at 7.59 pm on 9 July 2012.

36 A post-mortem examination indicated that the cause of death was blunt force injury to the head caused by the impact on the pavement. The severe single blow from the pavement to the back of the right side of Mr Kelly's head fractured the base of his skull, and triggered the intracranial injuries which eventually caused brain death.

The Respondent's Further Aggressive Conduct Following the Attack on Mr Kelly

37 After punching Mr Kelly to the head, the Respondent was seen by another witness running towards a food store on Darlinghurst Road and was also seen walking on the footpath on Bayswater Road. He was captured on CCTV footage walking around the Kings Cross area between 10.05 pm and 10.50 pm.

38 At about 10.15 pm, David Nofoaluma and Brendon Newton arrived at The Club on Bayswater Road (where the Respondent had earlier been refused entry). Mr Nofoaluma knew the Respondent through a mutual friend. He approached the Respondent saying "Hi" and went to shake hands with him. The Respondent then started swinging his right and left elbows at Mr Nofoaluma's head. The Respondent had his head down and kept swinging his elbows until Mr Nofoaluma pushed the Respondent to the chest, creating some distance between the two men. The Respondent looked up and said "Oh Nofo" and then hugged him and said "Sorry".

39 The Respondent then said "I swear I'm going to bash someone tonight". The sentencing Judge found that this statement supported a finding that "by reason of his drunkenness, the offender was either unable or unwilling to control his aggressive urges": R v Loveridge at [19].

Count 3 - Assault of Matthew Serrao

40 At about 10.50 pm, Matthew Serrao was walking and talking with friends on Roslyn Street, heading towards Darlinghurst Road, when he was suddenly punched by the Respondent without reason or warning to the left side of his face.

41 Mr Serrao and the Respondent were complete strangers.

42 Mr Serrao stumbled backwards and immediately felt dizzy and experienced pain to his face. The area around his eye became swollen and bruised.

43 Mr Serrao approached the Respondent, remonstrating with him, "Mate what the hell, why did you punch me, I don't even know you, are you going to say sorry?".

44 The Respondent stepped to the side and swung another punch at Mr Serrao with a closed fist, but missed. The Respondent was pulled away by another man.

45 Another witness observed the Respondent attempt to elbow Mr Serrao to the chest, before the Respondent ran off along Darlinghurst Road.

46 The sentencing Judge described this attack as being "entirely unprovoked and the victim had been innocently walking along" the street: R v Loveridge at [19].

47 A witness said that the Respondent was visibly intoxicated "because his pupils appeared dilated, he was speaking very quickly and he could not understand what he was saying", with the Respondent also "stumbling while walking".

Count 4 - Assault of Rhyse Saliba

48 About 10 minutes later, at about 11.00 pm, Rhyse Saliba was walking along Darlinghurst Road towards Roslyn Street when he bumped shoulders with the Respondent.

49 He apologised to the Respondent, however, the Respondent punched him to the left side of the face, connecting with Mr Saliba's cheek and top lip.

50 Mr Saliba and the Respondent were complete strangers.

Count 5 - Assault of Aden Gazi

51 The assault of Mr Saliba (Count 4) was witnessed by the next victim, Aden Gazi, who approached the Respondent and said to him "What the hell was that for? Why hit Rhyse on his birthday?".

52 The Respondent then swung at Mr Gazi in what was described in the Statement of Agreed Facts as a "haymaker punch", striking him on the right cheek.

53 Mr Gazi and the Respondent were complete strangers.

54 Mr Gazi remonstrated further with the Respondent and there then occurred what was described as a "push and shove" between two groups - the victims and their friends and the Respondent and his friends - which was broken up by two police officers on patrol in the area.

55 One of the officers, Constable Foot, observed the Respondent leap forward and throw a single punch into the other group. Constable Foot observed that the Respondent was moderately affected by alcohol and seemed agitated and emotional, at times waving his arms in a very animated manner and yelling at his friends and Mr Saliba and, at other times, embracing Mr Saliba.

56 Notwithstanding that Constable Foot had told the two groups of males to separate and move on, both police officers then observed the Respondent pass Mr Saliba's group again and throw another punch towards their group. Constable Foot separated them again and told them to go their separate ways.

Comments by the Respondent Over the Following Days

57 On 8 July 2012, the Respondent was watching television with a companion at Seven Hills when a story was broadcast concerning Mr Kelly being in hospital in a critical condition after being assaulted in Kings Cross the previous night. The Respondent appeared to his companion to be very worried. The Respondent said "Was that one of my fights, I don't know?". The Respondent made comments querying whether he fitted the description given on the television.

58 On 12 July 2012, the Respondent spoke with a companion concerning the night of 7 July 2012, saying "I don't remember what happened that night, it could have been me. I was drunk. I remember getting into a few fights that night. One was at Fake [Club] where police fined me. I am scared". Later, the Respondent was asked by others whether he remembered doing anything and each time he replied that he did not remember.

Arrest of Respondent on 18 July 2012

59 At 7.20 pm on 18 July 2012, the Respondent was arrested in the grandstand at Belmore Sportsground. He was taken to Campsie Police Station where he exercised his right to remain silent.

60 The Respondent was charged and remained in custody continuously after his arrest on 18 July 2012.

The Respondent's Subjective Circumstances

61 In addition to the report of Mr Champion, a number of documents were tendered in the Respondent's case on sentence, including a statement by his mother and a number of references.

62 The Respondent's criminal history included a number of appearances before the Children's Court. These included offences of taking and driving a conveyance and being carried in a conveyance without the consent of the owner, for which probation and a bond were granted in 2009 and 2010.

63 The Respondent's criminal history included offences of violence. On 1 September 2009, he appeared before the Parramatta Children's Court on charges of assaulting an officer in the execution of duty and affray and, for each offence, he was ordered to undertake 12 months' probation under the supervision of the Department of Juvenile Justice.

An Offence of Violence Resulting in Conditional Liberty in June 2012

64 On 7 June 2012, a month before the present offences, the Respondent appeared again before the Parramatta Children's Court upon a charge of assault occasioning actual bodily harm. He was ordered to undertake probation for 18 months on condition that he be of good behaviour, accept the supervision and guidance of the Department of Juvenile Justice for as long as was deemed necessary and, in particular, that he attend all counselling as directed for the purpose of family counselling, grief, loss and anger management.

65 As a result of this order, the Respondent was subject to conditional liberty at the time of the present offences on 7 July 2012.

66 The facts of the offence giving rise to the Respondent's appearance before the Parramatta Children's Court on 7 June 2012 were before the sentencing Judge. It is appropriate to refer to them, in particular, given the conditional liberty allowed just one month before commission of the present offences.

67 The Respondent was one of about 10-15 males who gatecrashed a large party organised by the victim at his parents' home at Blacktown on the evening of 28 January 2011. The Respondent and other males mixed with the invited guests. Most people at the party were consuming alcohol, including beer and mixer drinks. Fights broke out in the backyard and glass was thrown around.

68 The victim, who had not drunk any alcohol, asked the guests to leave at about 11.45 pm by walking around and making a general announcement saying "Look everyone, can you please leave now, the police are on their way".

69 At this point, the Respondent said to the victim "Who the fuck do you think you are, a hero or something?". The victim replied "Calm down mate, what's your problem?". The Respondent said "What are you looking at?". The Respondent then picked up two bottles from a bin that he had kicked over a short time before.

70 The victim was fearful that the Respondent was going to throw the bottles at him or damage the house. The victim then ran down the side of the house to the front area. The Respondent chased the victim on to the driveway adjacent to the house. The victim stopped running and turned to face the Respondent on the driveway.

71 The Respondent threw one of the bottles towards the victim but missed, with the bottle smashing on the fence behind the victim. The Respondent then threw the other bottle down on the driveway and ran towards the victim, punching him in the face with his fists. A melee ensued in which others joined in. During that time, the Respondent continued to punch the victim causing him pain and bruising to his face and eye.

72 Police arrived whilst this was happening and saw the Respondent punching the victim. The Respondent was pulled off the victim by two of his friends and began to walk away. At this point, a large number of people were in the front yard and driveway area of the house, some leaving the party and some fighting. The Respondent was arrested by the police as he attempted to leave the premises. Police released the Respondent a short time after.

73 After the victim had identified the Respondent as the person responsible for punching him, police arrested the Respondent at a nearby McDonalds at about 12.30 am on Saturday, 29 January 2011.

74 The Respondent participated in an electronically recorded interview in company with his mother and made full admissions to the police. On the following day, the Respondent wrote an apology message to the victim on his Facebook page.

75 The Statement of Facts presented to the Parramatta Children's Court on 7 June 2012 noted that the Respondent had shown remorse for his actions on the night in question and, at all times, maintained full and frank admissions to punching the victim with his fists.

76 On 11 October 2013, the Respondent was called up in the Parramatta Children's Court for breach of the probation order made on 7 June 2012. He was sentenced to a control order for two months commencing on 18 July 2012 and concluding on 17 September 2012.

Mr Champion's Psychological Report

77 Mr Champion's report dated 28 August 2013 contained the Respondent's personal history. The Respondent is of Aboriginal descent and his parents had separated when he was a young age. He felt alienated from his father and felt disconcerted when his mother commenced a relationship with another man. He laid the blame for his parents' dysfunctional relationship at the feet of his father, and also said that he had been subjected to corporal punishment by both parents, and particularly by his father.

78 The Respondent had displayed rebellious behaviour at school and had attended various schools. His high school education had been dislocated, partly due to expulsion for his involvement in juvenile criminal activities. The Respondent had some skill as a rugby league player. By late 2011, he was playing rugby league at a promising level. He reported attending school and undertaking a traineeship at the time of the present offences.

79 Psychological testing showed that the Respondent's intelligence was in the lower half of the average range and he was literate to an adequate degree. There was no indication that the Respondent was suffering from an intellectual disability or a global limitation in intelligence. Justice Health records (which were available to Mr Champion) did not make any particular reference to any psychological or psychiatric issues.

80 Mr Champion concluded that the Respondent's "judgment through adolescence appears to have been fairly regularly flawed given the history of offending and non-compliance and sub-cultural associations; though I balance against this the reported educational and employment history; and in the end would not tend to see him being unusually immature for his age". Mr Champion described the Respondent as a "not very thoughtful young man".

81 The Respondent explained to Mr Champion that the manslaughter was an "accident", in that he had not intended to kill Mr Kelly. He could not account at all for two of the other offences and the remaining two assaults he described as "personal stupidity".

82 In relation to his earlier experience of drinking alcohol, the Respondent reported that he had not drunk alcohol prior to the age of 17 years because of his involvement with rugby league. He admitted, however, to drinking some alcohol on the night of the Blacktown offence on 28 January 2011 (when aged 16 years and 10 months), but denied being intoxicated on that occasion. The Respondent explained that offence to Mr Champion upon the basis that the host of the party was "after his girlfriend and mocking him".

83 The Respondent indicated to Mr Champion that he was not generally a big drinker and that, since turning 18 years old, he had consumed alcohol on a small number of occasions in bars and clubs, but not to an excessive level. He also admitted to consuming what he thought was ecstasy on three occasions at about the time he turned 18 years old.

84 Mr Champion concluded that the Respondent had demonstrated some insight into the offending behaviour and the impact of it on others (particularly Thomas Kelly and his family) and could articulate remorse primarily directed towards the victims.

85 In terms of his prospects of rehabilitation, Mr Champion was guarded. He said that this was contingent on the Respondent's ability to see through his sentence without his attitudes and values becoming too distorted, noting the potential for deterioration in his mental health if, for example, his mother or sister suffered from ill health whilst he was in custody or if any other issue arose whilst he was in custody. He also noted that the Respondent's presentation suggested that he was still in the process of maturation and "his personality was not fixed".

86 Mr Champion addressed the Respondent's alcohol and aggression issues in the following way:

"[21] In terms of the question of AOD treatment/rehabilitation, assuming the accuracy of his report there does not appear to be a chronic or identifiably regular pattern of AOD abuse present, as opposed to episodic misuse; though extreme intoxication, as is suggested at the time of the present offences appears to have brought with it a significant level of anger and aggression; and hence there is a need to address both the alcohol issue and the aggression issue."

87 The Crown observed in this Court that it did not appear to have been brought to Mr Champion's attention that, when the Respondent was in custody on the present matters, he committed an assault on 25 April 2013 at the Cessnock Correctional Centre for which he was confined to cells for three days. The Crown noted that Mr Champion did not appear to have factored this custodial incident into his assessment of the Respondent's risk of violence, this being relevant to an assessment of an offender's prospects of rehabilitation: R v Fahda [2013] NSWCCA 86 at [100].

88 An email dated 24 October 2013 from Ms Donna Shepherd, alcohol and other drug counsellor at Long Bay Correctional Centre, stated that the Respondent had commenced the Getting Smart program at his own request, and had been referred for assessment for a violent offender's program.

Victim Impact Statements Before the Sentencing Court

89 Victim impact statements were made to the sentencing court by members of the family of Thomas Kelly and a number of his close friends. Family members included Mr Kelly's mother, father, sister, grandfather and grandmother.

90 These statements reflect the profound grief experienced by members of Mr Kelly's family as a result of his sudden and unexpected death at an early age following from the Respondent's criminal conduct. It is entirely apparent that the consequences of the loss of Mr Kelly, in these tragic circumstances, will be not just long lasting but permanent.

Grounds of Appeal

91 The grounds of appeal advanced by the Crown contend that the sentencing Judge fell into patent error in a number of respects in the sentencing process concerning the Respondent. In the course of considering these grounds of appeal, reference will be made to a number of specific findings of the sentencing Judge, which are under challenge on this appeal.

92 The Crown's final ground of appeal contends that the individual and total sentences imposed upon the Respondent were manifestly inadequate. The Crown submitted that the asserted patent errors contained in earlier grounds served to explain how manifestly inadequate sentences came to be imposed. However, even if earlier grounds of appeal were not made out, the Crown submitted that latent error was demonstrated in the form of manifestly inadequate sentences.

93 It is appropriate to consider each ground of appeal in turn.

Ground 1 - His Honour Erred by Failing to Take Into Account the Additional Need for General Deterrence Due to the Prevalence of Alcohol-Fuelled Offences of Violence

Submissions of the Crown

94 The Crown noted the finding of the sentencing Judge that the Respondent's offending constituted an episode of "alcohol-fuelled violence" (R v Loveridge at [3]) and "that these were drunken assaults in public brings into play the considerations of protection of society, the need for denunciation, retribution and general deterrence" (at [59]).

95 The Crown submitted, however, that his Honour did not refer to the prevalence of alcohol-fuelled violence and did not cite authorities to which his attention had been drawn by the Crown, in particular the decisions of this Court in Hopley v R [2008] NSWCCA 105 and R v Carroll [2010] NSWCCA 55; 77 NSWLR 45.

96 The Crown submitted that the principles emerging from these decisions, and also Pattalis v R [2013] NSWCCA 171, required application of these principles in the sentencing outcome, something which the Crown submitted had not occurred in this case.

The Respondent's Submissions

97 Mr Boulten SC, for the Respondent, acknowledged that general deterrence and retribution are elements that must assume greater importance when the contemporary relevance of a particular crime is the cause of community disquiet. In this case, he accepted that the existence of wide-spread community concern about alcohol-related violence in Kings Cross is irrefutable.

98 Mr Boulten SC submitted that the sentencing Judge had regard to the relevant principles on sentence for alcohol-fuelled violent crimes, including the need for denunciation, retribution and general deterrence. He submitted that this ground of appeal argued essentially that the sentencing Judge had given insufficient weight to general deterrence.

99 It was submitted that the authority of this Court to substitute a sentence for that imposed at first instance was not enlivened by its view that it would have given greater weight to deterrence, and less weight to the offender's subjective case: Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 at 1028-1029 [24]. It was submitted that the sentencing Judge had had regard to the relevant principles emerging from cases such as Hopley v R and R v Carroll, and that no error had been demonstrated in the manner complained of in this ground of appeal.

Decision

100 The decisions of this Court in Hopley v R and R v Carroll were both important and highly relevant to the sentencing of the Respondent. Although relied upon by the Crown, the decisions were not mentioned in his Honour's sentencing remarks.

101 In R v Carroll, with the concurrence of Spigelman CJ and Kirby and Howie JJ, Allsop P and Johnson J said at 59 [60]-[61]:

"60 This Court observed in Hopley v R [2008] NSWCCA 105 at [46] that, regrettably, 'single-blow manslaughter cases (by unlawful and dangerous act) are not rare in this State.' It was said in Hopley v R at [47]:

'As the learned sentencing judge correctly observed (by reference to R v Grenenger), this case is a further example of the disastrous consequences which can flow from a public affray in a place of lawful public resort. The violence of the Applicant was perpetrated in a public street where persons were present and where it constitutes a particular affront to civil peace to have a man killed in this way: R v Inzitari (NSW Court of Criminal Appeal, 28 March 1985). It was necessary for the Applicant to be punished for his crime and for an element of general deterrence to be reflected in the sentence.'

61 The sentencing decision with respect to the present offender required the element of general deterrence to be reflected in the sentence. Although the learned sentencing judge referred to general deterrence, we are satisfied that the sentence actually imposed at first instance in this case made no proper allowance for this significant sentencing principle. Mr Carroll was 20 years old, a young adult, at the time of the offence. The principles which apply directly to the sentencing of juvenile offenders, and the approach to general deterrence and rehabilitation, were not applicable to his case. Of course, his relative youth and his prospects of rehabilitation remained significant factors on sentence. However, alcohol-fuelled offences of violence of this type are frequently committed by young men of his age, and general deterrence has particular application for this reason."

102 In the context of a case of assault occasioning actual bodily harm, in which the drunken offender punched the victim in the face without warning or reason when the victim was standing outside a city nightclub in 2010, Hoeben CJ at CL (McCallum and Schmidt JJ agreeing) said in Pattalis v R at [23]:

"Over recent years, the incidence of such offences, particularly when associated with the excessive consumption of alcohol, have been all too frequent. Such offences are a cause for grave disquiet and the community is understandably angry and frustrated at their occurrence. Regrettably, it is now notorious (as his Honour recognised) that a single punch can not only cause catastrophic injuries but also death. For offences of this kind, the community has the rightful expectation that judicial officers will impose meaningful penalties."

103 Other decisions of this Court have emphasised that violence on the streets, especially by young men in company and under the influence of alcohol and drugs, is all too common and needs to be addressed by sentences that carry a very significant degree of general deterrence: R v Mitchell; R v Gallagher [2007] NSWCCA 296; 177 A Crim R 94 at 101 [29]. Even in the case of juvenile offenders (which the Respondent is not), this Court has emphasised that, in relation to crimes of violence committed in the streets by groups of young persons, general deterrence should be given substantial weight notwithstanding the youth of the offenders: AI v R [2011] NSWCCA 95 at [69]; MB v R [2013] NSWCCA 254 at [27].

104 This Court has emphasised that the principles of general deterrence and denunciation of crimes serve as a means of protection of the public: R v AEM [2002] NSWCCA 58 at [92].

105 The use of lethal force against a vulnerable, unsuspecting and innocent victim on a public street in the course of alcohol-fuelled aggression accompanied, as it was, by other non-fatal attacks by the Respondent upon vulnerable, unsuspecting and innocent citizens in the crowded streets of King Cross on a Saturday evening, called for the express and demonstrable application of the element of general deterrence as a powerful factor on sentence in this case.

106 It is the case that the sentencing Judge referred to general deterrence as being a matter to be taken into account on sentence. However, two observations should be made.

107 Firstly, submissions had been made by the Crown by reference to decisions of this Court which emphasised the need for substantial weight to be given to general deterrence in passing sentence for offences involving alcohol-fuelled violence in public places and, in this context, where the offence of manslaughter was committed. The absence of any reference in the remarks on sentence to the decisions of this Court in Hopley v R and R v Carroll is noteworthy.

108 Secondly, this was a case where it was necessary for the sentencing Judge to emphasise the substantial role of general deterrence on sentence, and then to give effect to that important sentencing principle in the sentences actually imposed.

109 We are satisfied that the same error has been demonstrated here as occurred in R v Carroll at 59 [61] (see [101] above). A passing reference to general deterrence did not meet the requirements of sentencing principles in this case. Nor did the sentences actually imposed reflect that general deterrence had been taken into account in accordance with the law.

110 We are satisfied that the first ground of appeal has been made out. The consequences of this finding will be addressed later in this judgment.

Ground 2 - His Honour Erred by Failing to Take Into Account the Need for Specific Deterrence of the Respondent

Submissions of the Crown

111 The Crown submitted that the sentencing Judge made no reference at all to the need for specific deterrence to be taken into account in sentencing the Respondent.

112 It was submitted that the Respondent's aggression issue, considered by Mr Champion (see [86] above), raised a clear need for specific deterrence in this case. Further, the Crown submitted that the Respondent had a prior criminal history including offences of violence, as to which he was subject to conditional liberty at the time of these offences.

113 The Crown pointed to findings of the sentencing Judge that the Respondent had aggressive urges that he was unable or unwilling to control on 7 July 2012 (R v Loveridge at [12], [19]). It was submitted that the present offences were not an uncharacteristic aberration in light of the Respondent's criminal history. The Crown referred to Bugmy v The Queen at 1032 [44] where the majority observed that the inability of an offender "to control the violent response to frustration may increase the importance of protecting the community from the offender", applying the words in s.3A(c) Crimes (Sentencing Procedure) Act 1999.

114 The Crown pointed, as well, to a level of tension between the finding of the sentencing Judge that the Respondent "is very unlikely to re-offend" because "he has well and truly learnt his lesson", and the qualification which followed immediately - "however, he will need to muster his fortitude and resolve to maintain that determination" during his term of imprisonment: R v Loveridge at [68].

115 It was submitted that the need for specific deterrence to be taken into account on sentence was clear in this case, and that his Honour had erred in failing to take it into account.

Submissions of the Respondent

116 It was submitted for the Respondent that the Crown at first instance had not referred expressly to the need for specific deterrence to be taken into account on sentence. In any case, it was submitted that his Honour had adverted, in general terms, to specific deterrence as one of the various factors to be taken into account (R v Loveridge at [58]) and that his Honour took into account the Respondent's prior criminal history, which demonstrated a pattern of disregard for the law which elevated the seriousness of the individual instances of offending (at [59]). In this way, it was submitted that regard had been had to specific deterrence.

117 It was submitted for the Respondent that his youth and his continuing exposure to a family background marked by violence, dysfunction and dislocation required the Court to give greater consideration to rehabilitation and less to specific and general deterrence: Bugmy v The Queen at 1032 [44].

118 Mr Boulten SC submitted that the sentencing Judge's findings that the Respondent was very unlikely to reoffend, and had good prospects of rehabilitation, militated against any further weight being attached to specific deterrence in this case.

119 In any event, as with the first ground of appeal, it was submitted that the Crown's complaint here concerned the weight to be given to specific deterrence with this being a matter which ought not attract the attention of this Court.

 

Decision

120 The Respondent in this case was not a first offender. Despite his relative youth, he had prior offences of violence. He was subject to conditional liberty for an alcohol-fuelled offence of violence, with that sentence having been passed by a court just one month prior to 7 July 2012.

121 It may be inferred readily that the Respondent's stated remorse and contrition (see [75] above) was taken into account, in a significant respect, in the imposition of a non-custodial sentence on 7 June 2012 for a significant offence of violence committed by him. The context of that offence was, of course, entirely antisocial, involving as it did, gatecrashing of a party by the Respondent and others with the Respondent initiating violent conduct thereafter on the private property of the victim.

122 Yet one month later, the Respondent embarked upon a course of conduct which saw himself and a number of his companions consuming a very significant amount of alcohol, before attending Darling Harbour and then Kings Cross. Both the Respondent's acts and his words indicated an expectation on his part that trouble would result. Far from exercising restraint in accordance with the terms of his conditional liberty, and utilising such assistance and support in the community as was available as a condition of his probation, the Respondent embarked upon a course of violent conduct which culminated in the death of a young man and the assaulting of others selected randomly in a public street.

123 The recital of these considerations points to a very significant need for specific deterrence in this case. The Respondent's youth was clearly relevant on sentence. An assessment of the likelihood of him reoffending, and his prospects of rehabilitation, involved an evidence-based decision made against the background of the Respondent's grave breach of conditional liberty granted just one month before the commission of these offences.

124 The Respondent did not give evidence at the sentencing hearing. In these circumstances, this Court has emphasised that a sentencing Judge ought give very limited weight to statements made by an offender to a psychiatrist or psychologist reproduced in reports: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at 377 [58]-[59], 380 [79]; R v Palu [2002] NSWCCA 381; 134 A Crim R 174 at 184-185 [39]-[41].

125 Although the Respondent had expressed remorse to Mr Champion, there was no direct evidence from the Respondent to this effect before the sentencing Judge. A guarded approach to expressions of remorse in these circumstances is warranted: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999. This is particularly so when expressions of remorse were made just one month before these offences to the Children's Court, which proceeded to sentence by way of a probation order for an offence of violence. This was an objective feature of the case which emphasised the need for specific deterrence to be factored into the sentencing exercise, and for additional caution to be exercised before acting upon an unsworn and untested claim of remorse. It should not be overlooked, as well, that the Respondent described the death of Mr Kelly as being an "accident" (see [81] above) and continued to demonstrate an attitude of self-justification towards the gatecrashing offence (see [82] above).

126 A fair reading of Mr Champion's balanced and objective report indicated that a guarded approach ought be taken in assessing the Respondent's risk of reoffending and prospects of rehabilitation, given what were described as the Respondent's unresolved alcohol and aggression issues.

127 With respect, no foundation existed for a finding that it was very unlikely that the Respondent would reoffend.

128 In all of these circumstances, the proper exercise of sentencing discretion required substantial weight to be given to specific deterrence in this case.

129 It is difficult to see, in the approach of the sentencing Judge, any real allowance for specific deterrence in circumstances where flawed findings were made, favourable to the Respondent, by reference to his risk of reoffending and prospects of rehabilitation.

130 We are satisfied that the complaint by the Crown under this ground goes beyond a matter of weight. Error has been demonstrated in this regard in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504-505.

131 We uphold the second ground of appeal.

Ground 3 - His Honour Erred by Double Counting Subjective Features When Making a Finding of Special Circumstances

Submissions of the Crown

132 The Crown submitted that the sentencing Judge had regard to the Respondent's remorse and his prospects of rehabilitation, together with his youth, in fixing the individual sentences (R v Loveridge at [64], [66], [68]), but proceeded then to double count these factors in making a finding of special circumstances for the purposes of s.44 Crimes (Sentencing Procedure) Act 1999 (at [70]).

133 The Crown submitted that this was a clear error of double counting.

The Respondent's Submissions

134 Mr Boulten SC noted that the prosecutor at first instance accepted that there were special circumstances for the purpose of sentence. Further, it was submitted that after partial accumulation, only a minor amelioration of the statutory ratio was made in favour of the Respondent with the non-parole period constituting 72% of the head sentence.

135 The Respondent submitted that factors may be taken into account differently in having regard to the various purposes of sentencing, so that error had not been demonstrated in this case which, in any event, involved a modest adjustment only.

Decision

136 This Court has emphasised that double counting for matters already taken into account in reducing the head sentence, and therefore already reflected in the non-parole period, must be avoided: R v Fidow [2004] NSWCCA 172 at [18]. This is not to say that factors considered for the purpose of setting the full term of imprisonment must be entirely disregarded when the time comes to set the non-parole period, there being some prospect of overlap upon a proper basis: R v GWM [2012] NSWCCA 240 at [102].

137 A finding of special circumstances is a statutory precondition to departure from the 75% ratio and the reduction of the non-parole period must be purposeful. The purpose must be something other than to simply relieve the offender of the burden of serving a minimum sentence as required by s.44: R v GWM at [114].

138 The sentencing Judge did not acknowledge the need to guard against impermissible double counting in this case. The impression was left that the factors taken into account in fixing individual sentences were taken into account again, without qualification, in making a finding of special circumstances.

139 That said, the variation in the ratio between the total effective non-parole period and the total effective head sentence is a minor one only, reducing the proportion from 75% to 72%. In these circumstances, we are not persuaded that patent error is demonstrated as contended for in this ground of appeal.

140 However, if the Court moves to resentence the Respondent, it will be necessary to take into account the appropriate principles in calculating individual sentences, and in addressing the issue of special circumstances.

Ground 4 - His Honour Erred in Failing to Take Into Account Material Considerations in Relation to Intent and Risk

Submissions of the Crown

141 The Crown submitted that the Respondent hit the first victim, Mr Compagnoni (Count 2), with such force to the face as to cause a cut and then struck Mr Kelly (Count 1) with considerable force to the face, causing him to fall to the ground and strike his head. Soon after, the Respondent commented "I swear I am going to bash someone tonight". The Crown submitted that a finding ought to have been made, at first instance, that the Respondent intended to harm or injure, and that he carried that intention into the following three assaults as well.

142 Although intention to injure or harm was not an element for the offence of manslaughter, the Crown submitted that a finding to that effect ought to have been made with respect to the various offences committed by the Respondent on this night, having regard to all the evidence. Had this finding been made, the Crown submitted that it bore upon an assessment of the seriousness of each of the offences and the Respondent's moral culpability.

143 The Crown submitted that his Honour erred by not finding that the assaults in Counts 3, 4 and 5 were of a higher level of seriousness, and warranted longer sentences, because he did not take into account that they came after the Respondent had punched Mr Kelly, looked at him and then sprinted away, acts which the sentencing Judge found to reflect consciousness of guilt. Thereafter, the Respondent engaged in similar violent behaviour in assaulting three more men to the head, thereby demonstrating a higher degree of callousness in continuing the conduct.

144 Whilst acknowledging the discretionary nature of a sentencing Judge's findings concerning the seriousness of an offence, the Crown submitted that it was not open on the facts to treat the last three assaults in Counts 3, 4 and 5 as being effectively of the same seriousness as Count 2.

The Respondent's Submissions

145 Mr Boulten SC submitted that the factors relied upon by the Crown point to deliberateness, but cannot be elevated to the height of evidence of an intention to injure. The deliberateness of the Respondent's actions was a necessary component of his plea and was not in dispute.

146 It was submitted that the Respondent's flight after punching Mr Kelly did not necessarily evidence any greater appreciation of risk of injury. The Respondent had not remained on the scene for very long, he was affected by alcohol, with his comments made the next day reflecting limited awareness of the harm he had caused until he saw the news report.

147 It was submitted that the Respondent's comment "I swear I'm going to bash someone" was addressed not necessarily to outcomes, but to actions.

148 It was submitted for the Respondent that no error had been made in the manner contended for by the Crown in this ground of appeal.

Decision

149 In approaching this ground of appeal, it is necessary to bear in mind that the Respondent did not give evidence at the sentencing hearing. Fact finding for the purpose of sentence was to be undertaken by reference to the Agreed Statement of Facts and inferences to be drawn from those facts, together with the report of Mr Champion, after making due allowance for its unsworn and hearsay source of the Respondent's account.

150 The Respondent struck a powerful blow to Mr Compagnoni, and soon after struck an even more powerful blow to Mr Kelly, causing him to fall to the ground.

151 The Respondent comprehended the force of the blow to Mr Kelly, in observing him lying prone on the ground with the Respondent then running away down the street. The finding of consciousness of guilt made by the sentencing Judge was well open, and reflected an awareness on the part of the Respondent, even in his intoxicated state, that the powerful blow he had struck to Mr Kelly had caused him to fall to the ground and remain there.

152 The statement of the Respondent made soon after concerning his desire "to bash someone" was to be viewed cumulatively upon his actions in striking two men and then running away. Thereafter, the Respondent assaulted three more randomly selected victims in the street, in circumstances where a finding was more than appropriate that he intended, to some extent, to injure or harm each of them. The Respondent was acting upon his stated intention "to bash someone", against the background of already having "bashed" two other persons for no good reason.

153 It may be taken that the Respondent experienced a degree of clouded consciousness as a result of his alcohol intake. However, he was able to move about the street (including running away after striking Mr Kelly) and strike blows to persons in a random fashion.

154 The appropriate factual findings to be made, in the context of this case, called for an assessment of the ongoing cumulative acts and words of the Respondent as he proceeded with his violent course of conduct.

155 In our view, these matters do bear upon, and magnify, the objective seriousness of (at least) the attack upon Mr Kelly (Count 1) and the three assaults (Counts 3, 4 and 5) which followed thereafter.

156 The objective seriousness and moral culpability to be attached to these offences grew incrementally as the Respondent moved from one act of intentional and random violence to another on the streets of Kings Cross that night.

157 We uphold this ground of appeal which, in any event, will inform a determination of the final ground of appeal, and the sentences to be passed if the Court moves to resentence the Respondent.

Ground 5 - His Honour Erred in Classifying Each Offence as Spontaneous

Submissions of the Crown

158 The Crown contended that the sentencing Judge erred in classifying each offence as spontaneous, in the manner set out hereunder (R v Loveridge at [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."

159 Whilst accepting that the first offence in time may have had a component of spontaneity, the Crown submitted that this did not extend to the subsequent offending. Each victim was chosen somewhat at random and each was attacked to the face or head region. Given the Respondent's expressed state of mind on the night, which informs the earlier assaults as well as the subsequent ones, the Crown submitted that it was evident that the Respondent was intoxicated and unable or unwilling to control his aggression. For a period of close to an hour, he continued to exhibit aggression towards a number of persons in addition to those reflected in the charges. The Crown submitted that the evidence clearly confirmed that the Respondent was out of control for a period of time, attacking persons for no apparent reasons as part of his express desire to assault.

160 The sentencing Judge referred to the Respondent's inability to control his aggression, and observed that succumbing and giving vent to this aggression did not detract significantly from the conclusion of spontaneity (at [62]). The Crown submitted that this analysis failed to have regard to the offences being committed in close temporal proximity, and each being part of an ongoing course of conduct.

161 The Crown pointed to the fact that his Honour had earlier accepted that the offending was part of a pattern of behaviour (at [59]). It was submitted this earlier recognition of the nature of the offending did not extend to his Honour's consideration of spontaneity.

162 It was submitted that this classification was inconsistent with the evidence and served to diminish the gravity of the offences, certainly those committed after the first offence.

The Respondent's Submissions

163 Mr Boulten SC submitted that there was no special or extra meaning intended to attach to the word "spontaneous" over and above his Honour's explanation (at [158] above). It was submitted that his Honour was correct to describe the events as "on the whole spontaneous". The Respondent was very drunk and acting in ways which suggested that he was acting randomly and without a formulated plan.

164 Reference was made to his Honour's description of the events as "incidents of drunken violence in a public place ... carried out randomly on unsuspecting strangers by an intoxicated young offender" (at [3]) as demonstrating that the sentencing Judge did not undervalue the objective seriousness of the Respondent's conduct.

165 Though the behaviour in each of the offences was similar and occurred close in time, it was submitted that there were separate victims and separate outcomes and that, contrary to the Crown's submission, his Honour actually concluded (at [59]) that this served to increase the assessment of the objective criminality of each offence.

166 It was submitted for the Respondent that, if anything, rather than aggravating the objective seriousness of the individual offences, the fact that five such similar results occurred in a single drunken evening, so close in time, operated so as to disentitle the Respondent to extra leniency and to give greater emphasis for the need for specific and general deterrence.

Decision

167 It is understandable that the term "spontaneous" may be used to characterise the first offence committed against Mr Compagnoni. However, it is difficult to see how the term has correct application to any or all of the separate attacks which followed the first offence.

168 The conduct of the Respondent may be characterised fairly as the repeated and random selection of victims whom he attacked to the head in a public street for no reason. It might be said, in one sense, that each explosive act of violence came "out of the blue" with respect to each unsuspecting victim. However, this does not permit the comfortable characterisation of the attacks as being "on the whole spontaneous". The use of the term tends to downgrade the criminality reflected in the accumulating series of attacks which the Respondent was making against different victims, over the period of about an hour, at different points in the streets of Kings Cross.

169 We are satisfied that his Honour's characterisation of the offences in this way operated to reduce the true degree of their seriousness, in such a way as to impact upon the objective gravity of the second and subsequent offences committed by the Respondent.

170 We uphold this ground of appeal which, in any event, will require appropriate assessment if the Court reaches the point of resentencing the Respondent.

Ground 6 - His Honour Failed to Accumulate the Sentences Sufficiently

Submissions of the Crown

171 The Crown submitted that each of the individual sentences was manifestly inadequate, and that the extent of the partial accumulation of sentences then exacerbated the manifest inadequacy of the total sentence.

172 Although some partial accumulation was open in the exercise of the discretion in accordance with the principle of totality, the Crown submitted that where there are multiple victims, there is a special need to consider the separate criminality involved for each offence.

173 The Crown submitted that the Respondent had adequate opportunity to reflect upon his conduct and to desist, yet he continued to attack strangers for no reason and without notice. Each act was cowardly and part of a course of conduct that required an appropriate and meaningful overall sentence.

The Respondent's Submissions

174 Mr Boulten SC submitted that the sentencing Judge correctly stated the relevant principles to be applied in accordance with Pearce v The Queen [1998] HCA 57; 194 CLR 610. It was submitted that his Honour's decision to structure the sentences, using partial accumulation, was a correct exercise of discretion open to the sentencing Judge.

175 The Respondent submitted that the Crown had not demonstrated that the sentencing Judge's discretion had miscarried in his approach to accumulation. Further, it was submitted that his Honour's reference to the avoidance of a "crushing" sentence indicated that regard had been given to the principle of totality, so as to preserve encouragement for rehabilitation and reform.

Decision

176 The sentencing Judge did accumulate the sentence on the manslaughter count entirely upon the sentences for the other offences. A measure of accumulation was applied with respect to the other sentences as well.

177 It may be said that the sentencing Judge applied the relevant principles in approaching the accumulation of sentences in this case. However, the real difficulty relates to the length of the sentences themselves, and the corresponding relative brevity of the periods of accumulation. These features will be addressed directly in the context of Ground 7, the claim of manifest inadequacy.

178 We do not uphold this ground of appeal.

Ground 7 - The Sentences, Individually and in Total, are Manifestly Inadequate

Submissions of the Crown

179 The Crown submitted that the sentences imposed in this case were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25]. It was submitted that the sentencing Judge had imposed sentences that were below those that could be justly imposed for the offences, consistent with sentencing standards: Bugmy v The Queen at 1028 [24].

180 The Crown pointed to a series of factors in support of a submission that, individually and in total, the sentences failed to punish the Respondent adequately for very serious and highly morally blameworthy conduct. The Crown submitted:

(a) the offences were committed in public places as part of repeat offending, whilst on conditional liberty imposed only one month before for a similar offence;

(b) the offences were wanton, unprovoked and committed against unsuspecting victims who were complete strangers to the Respondent;

(c) there was no explanation for the Respondent's behaviour;

(d) the offences were part of a course of conduct involving multiple assaults and therefore did not involve a momentary aberration;

(e) the Respondent approached Mr Kelly in a deliberate way and punched him forcefully when he was not expecting it;

(f) the Respondent attacked the heads of people, an inherently more dangerous form of attack than to other parts of the body, given the vulnerability of people's heads and the extent of the injuries which can be caused if they are knocked down on a hard surface;

(g) even towards the end of the conduct, the Respondent was forcibly attacking strangers in the vicinity of police;

(h) the Respondent showed no concern for any of his victims - he ran away from the scene after he punched Mr Kelly, revealing his consciousness of guilt, yet he continued to offend - the Respondent's conduct and words indicated that he had no regard whatsoever for numerous members of the public whom he brutally attacked without warning or explanation;

(i) the Respondent's criminal behaviour in these offences showed a sharp escalation from his prior convictions, which had begun with offences relating to stolen vehicles, then assault of a police officer in the execution of duty and affray and then the Blacktown assault occasioning actual bodily harm;

(j) the Respondent's continuing attitude of disobedience for the law, his moral blameworthiness and the need for specific deterrence and protection of society, required more severe sentences to be imposed.

181 For the offence of manslaughter, the Crown submitted that a starting point of eight years' imprisonment against the maximum penalty of 25 years was manifestly inadequate.

182 Similarly, it was submitted that the starting point for assault occasioning actual bodily harm of 12 months against a maximum penalty of five years was manifestly inadequate.

183 Further, the sentencing Judge's incorrect approach in treating the last three assaults as being of the same seriousness as Count 2 resulted in those sentences also being manifestly inadequate.

184 It was submitted that his Honour's failure to have appropriate regard to general deterrence due to the prevalence of alcohol-fuelled offences of violence contributed to the manifest inadequacy of the sentences, as did the failure to take into account the specific deterrence of the Respondent.

185 The Crown submitted that, on a number of occasions, this Court has stated that the public must be protected by the criminal law when going about its lawful business on public streets and other public locations: R v AEM at [94]; R v McKenna [2007] NSWCCA 113 at [2], [35].

186 The Crown referred again in this context to Hopley v R and R v Carroll, together with Donaczy v R [2010] NSWCCA 143 at [53], where the importance of general deterrence in sentencing for offences of violence perpetrated in a public place, after consumption of alcohol, was emphasised.

187 With respect to a number of single-blow manslaughter sentencing decisions to which his Honour's attention had been drawn, the Crown noted that the sentencing Judge stated the correct approach - that what was required was consistency of principle, not numerical equivalence: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 535 [48]-[49]. The Crown submitted that previous sentencing decisions of this type pointed to a range of sentences actually imposed, but did not establish the correctness of that range: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 70-71 [303]-[305].

188 Despite acknowledging the correct approach, the Crown submitted that his Honour had been influenced inappropriately by the sentences imposed in these other cases. His Honour stated (R v Loveridge at [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."

189 However, the Crown submits that the present offence of manslaughter was not broadly similar to these other cases. During the sentencing proceedings, the Crown pointed out that there were multiple victims in this matter and that the present case is not comparable to the other cases.

190 The Crown pointed to the observation of McClellan CJ at CL in KT v R [2008] NSWCCA 51; 182 A Crim R 571 at 583 [41] that the range of penalty specified in so-called one-punch manslaughter cases failed to adequately reflect the need for general deterrence and retribution, and that this Court should in future accept that more significant penalties may be required when sentencing offenders for this type of offence.

191 It was submitted, both at first instance and in this Court, that a number of the other sentencing cases involved some kind of interaction between the victim and offender prior to the offence. The Crown submitted that not only was the present case not of that type, but none of the other sentencing decisions involved a factual scenario of two attacks, a manifestation of consciousness of guilt and then three further attacks.

192 The Crown pointed to other distinctions in the objective circumstances of other sentencing decisions and/or the subjective circumstances of the offender in those cases.

193 Reference was made to the frequently cited statement by Gleeson CJ (Grove and Ireland JJ agreeing) in R v Blacklidge (NSWCCA, unreported, 12 December 1995, at page 3) to the following effect:

"It has long been recognised that the circumstances which may give rise to a conviction for manslaughter are so various, and the range of degrees of culpability is so wide, that it is not possible to point to any established sentencing tariff which can be applied to such cases."

194 In these circumstances, the Crown submitted (as it did at first instance) that very limited assistance only could be provided by reference to sentences imposed in other manslaughter cases, which were much less morally blameworthy than the present case.

195 The Crown submitted that manifest inadequacy of sentences flowed as well from a failure on the part of the sentencing Judge to have sufficient regard to the Respondent's breach of conditional liberty in committing these offences.

196 It was submitted that error had been demonstrated and that this Court should intervene to resentence the Respondent.

The Respondent's Submissions

197 Mr Boulten SC submitted that the sentencing Judge had appropriate regard to the maximum penalties for each of the offences. Further, it was submitted that the manslaughter sentencing cases referred to at the sentencing hearing demonstrated an effective range of sentence for this class of manslaughter, and that the sentence imposed upon the Respondent lay within that range.

198 It was submitted that the sentencing Judge had taken into account all the matters upon which the Crown sought to rely in this Court. Emphasis was placed upon the drunken state of the Respondent, his youth and disadvantaged upbringing, all of which were taken into account by the sentencing Judge in the exercise of sentencing discretion.

199 It was submitted for the Respondent that a starting point of eight years' imprisonment for the manslaughter sentence was well open to the sentencing Judge. Further, a starting point of 12 months' imprisonment for the assault occasioning actual bodily harm offence was, it was submitted, also well open to the sentencing court.

200 Reference was made to sentencing statistics for offences of assault occasioning actual bodily harm and common assault, the great bulk of which were prosecuted in the Local Court. It was submitted that the sentences imposed upon the Respondent in this case were not inadequate.

Decision

201 The Respondent stood to be sentenced for five separate crimes, extending from manslaughter (with a maximum penalty of 25 years' imprisonment) to assault occasioning actual bodily harm (maximum penalty of five years' imprisonment) and three offences of common assault (each with a maximum penalty of two years' imprisonment).

202 As discussed earlier under Grounds 4 and 5, there was an interrelationship between these offences which served to magnify their seriousness in a number of respects. This was an unusual and highly aggravating feature of the Respondent's offences.

203 A further highly aggravating feature of the offences was that all were committed whilst the Respondent was subject to conditional liberty, granted just one month before by a sentencing court for another act of serious and indiscriminate violence.

204 Despite the Respondent's claimed remorse and the leniency extended to him by that sentencing court, he set out on the late afternoon of Saturday, 7 July 2012, with a number of companions, to become highly intoxicated and to venture into busy nightspots in the city of Sydney at Darling Harbour and Kings Cross.

205 The Respondent was well aware of his anger management issues, which had led to a condition upon the probation order granted to him on 7 June 2012.

206 As the evening of 7 July 2012 wore on, it was apparent that the Respondent intended to act in a repeated violent fashion towards persons in the street, with one attack followed by another and yet others, even following his consciousness that Mr Kelly lay prone on the ground after he had struck him.

207 No other sentencing decision in this State for so-called one-punch manslaughter involves this combination of factors. Nearly all involve violent incidents (usually with some initiating event between the participants) culminating in a blow being struck giving rise to an offence of manslaughter. Far more is involved in the present case than that.

United Kingdom Cases Involving Manslaughter Arising from Violence in Public Places

208 Courts in the United Kingdom have considered some of the issues arising on this appeal. In Reference By the Attorney General Under Section 36 Criminal Justice Act 1988 [2005] EWCA Crim 812, Judge LJ (Hallett J and Sir Charles Mantell agreeing) observed, at [10], that "It is in truth not realistic to treat what is described as one punch manslaughter as comprising a single identical set of circumstances", with cases involving death resulting from a single blow varying greatly in their seriousness. Judge LJ observed at [15] that "This kind of unnecessary violence, in residential areas, creates great, and justified, and increasing public concern" with people expecting "their streets to be safe".

209 The Court of Appeal (Criminal Division) returned to this issue in Attorney General's Reference No. 60 of 2009 (Appleby and Ors) [2009] EWCA Crim 2693; [2010] 2 Cr App R(S) 46, where Lord Judge CJ (Thomas and Hughes LJJ and Simon and Royce JJ agreeing) again addressed the topic of single-punch manslaughter cases. Lord Judge CJ observed, at [12], that "... an additional feature of manslaughter cases which has come to be seen as a significant aggravating feature of any such case is the public impact of violence on the streets, whether in city centres, or residential areas ... Specific attention should be paid to the problem of gratuitous violence in city centres and the streets".

210 Lord Judge CJ continued at [12]:

"... the manslaughter cases with which we are concerned involved gratuitous, unprovoked violence in the streets of the kind which seriously discourages law-abiding citizens from walking their streets, particularly at night, and gives the city and town centres over to the kind of drunken yobbery with which we have become familiar, and a worried perception among decent citizens that it is not safe to walk the streets at night".

This statement echoes loudly in the context of the present appeal.

211 In R v Folkes [2011] EWCA Crim 325; [2011] 2 Cr App R(s) 76, Lindblom J (Laws LJ and Simon J agreeing) said at [15]:

"Every case of so-called "one punch manslaughter" is unique in its facts and in the circumstances lying behind it. This was described by the Lord Chief Justice in Appleby as a 'truism' (at [4]). The one common denominator is that a life is needlessly lost, unintended though that outcome has been. In our judgment the appellant can gain little, if any, support from the cases on which reliance is placed on his behalf. Each of those cases is quite different from his."

212 Lindblom J stated at [19]:

"We recognise, as did the judge below, that there can be a real and important distinction between the crime of manslaughter when committed in public and the same offence committed in private. As was remarked by the Court in Appleby (at [12]) 'an additional feature of manslaughter cases which has come to be seen as a significant aggravating feature of any such case is the public impact of violence on the streets'."

213 In R v Duckworth [2012] EWCA Crim 1712; [2013] 1 Cr App R(S) 83, Cox J (Rafferty LJ and Bevan QC agreeing) said at [12]-[14]:

"12 Both parties have drawn our attention to decisions of this Court in a number of cases involving facts where death had resulted from a single blow with a bare hand or fist. These cases include, on Miss Pinkus' part, the case of Furby [2005] EWCA Crim 3147; [2006] 2 Cr. App. R. (S.) 8 (p.64), Attorney General's Reference (Nos 60, 62 and 63 of 2009) (Declan Appleby) [2009] EWCA Crim 2693; [2010] 2 Cr. App. R. (S.) 46 (p.3110) and Attorney General's Reference (No. 64 of 2008) (Wyatt) [2009] EWCA Crim 88; [2009] 2 Cr. App. R. (S.) 59 (p.424).

13 As the judgments in these cases make clear, the category of offences subsumed under the general heading of 'one-punch manslaughter' will invariably include cases where the level of force used and the circumstances surrounding the blow render them particularly serious cases of their kind, even though the consequences must be treated as if they were unintentional and unintended.

14 This, in our judgment, is such a case. Although this incident was one of short duration, it was not a spontaneous incident. This was, as the sentencing judge observed, a case involving gratuitous violence used in the street and an attack of considerable ferocity against a wholly innocent victim. The offence was aggravated by the appellant's previous convictions for offences of violence and for public disorder. This was, therefore, a most serious offence of its kind."

Offending of This Type in New South Wales

214 Two particular points emphasised in the United Kingdom cases have currency in this State as well.

215 Firstly, it is not meaningful to speak of one-punch or single-punch manslaughter cases as constituting a single class of offences. The circumstances of these cases vary widely and attention must be given to the particular case before the sentencing court.

216 Secondly, the commission of offences of violence, including manslaughter, in the context of alcohol-fuelled conduct in a public street or public place is of great concern to the community, and calls for an emphatic sentencing response to give particular effect to the need for denunciation, punishment and general deterrence. The United Kingdom decisions involve statements of serious concern by the courts of the type expressed in this State in Hopley v R, R v Carroll and Pattalis v R concerning a similar form of violent offending.

217 General deterrence and retribution are elements that must assume greater importance when the crime in question is a serious one, has been committed in a particularly grave form and its contemporary prevalence is the cause of considerable community disquiet: R v Williscroft [1975] VR 292 at 299.

218 Additional considerations arise where an offender has a history of alcohol-fuelled violence, and where further offences of this type are committed whilst the offender is subject to conditional liberty. In such circumstances, specific deterrence is magnified as a factor to be taken into account on sentence.

219 Although the youth or relative youth of offenders who commit offences of this type remains a relevant factor on sentence, particular significance is to be given to general deterrence in sentencing young offenders who commit serious crimes of violence on a public street or in a public place. So much is clear from existing decisions of this Court, including AI v R and R v Carroll.

220 The Respondent's intoxication did not assist him at all on sentence. Of course, the Respondent was sentenced before the commencement of s.21A(5AA) Crimes (Sentencing Procedure) Act 1999 on 31 January 2014. That section now excludes by statute self-induced intoxication being taken into account as a mitigating factor on sentence. However, the law at the time when the Respondent was sentenced was to a similar effect. Although an offender's intoxication, whether by alcohol or drugs, could explain an offence, it ordinarily did not mitigate the penalty: Bourke v R [2010] NSWCCA 22; 199 A Crim R 38 at 44 [26]. Courts around Australia have consistently rejected the proposition that intoxication can mitigate the seriousness of an offence or reduce an offender's culpability. Although an "out of character" exception has been acknowledged to exist, it has almost never been applied: R v GWM at [82]; ZZ v R [2013] NSWCCA 83 at [110]. The Respondent could not have called in aid the "out of character" exception. In truth, the Respondent's awareness of his aggression issues, in the context of alcohol use, meant that his intoxication was capable of operating adversely to him on sentence.

The Role of Other Sentencing Decisions on Sentence

221 This Court has observed on a number of occasions that, when other sentencing decisions are provided to a sentencing court, it is important that the purpose for which the information was provided be kept in mind: Van Haltren v R [2008] NSWCCA 274; 191 A Crim R 53 at [76]; R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 at [60]; RR v R [2011] NSWCCA 235; 216 A Crim R 489 at [135].

222 In the present case, the bundle of sentencing decisions provided to the sentencing Judge represented nothing more than sentencing decisions in cases depending upon their particular facts and the circumstances of the offender in question. The sentencing decisions referred to at first instance did not demonstrate a range of sentences for so-called one-punch manslaughter cases. Contrary to the Crown submission at first instance, it appears that the sentencing Judge treated the other sentencing decisions as if they were comparable cases giving rise to a range (see [188] above). Not only were they not demonstrative of a range of sentences, but the circumstances of those cases were substantially different to those of the present case.

223 Although the decision of the High Court of Australia in Barbaro v The Queen [2014] HCA 2; 88 ALJR 372 restricts the capacity of the Crown to propose to a sentencing Judge a numerical range of penalty in a particular case (at 376-380 [20]-[43]), there is no impediment to the provision of other sentencing decisions which may bear upon the exercise of the sentencing discretion. The decision in Barbaro v The Queen narrows the long-standing ethical rule which permitted a prosecutor to inform the court of an appropriate range of penalty, including a period of imprisonment, by reference to relevant decisions: Clause 93(e), New South Wales Barristers' Rules (which commenced on 6 January 2014). However, a prosecutor or defence counsel may hand up to a sentencing Judge other sentencing decisions, where it is clear that those decisions are relevant to the exercise of sentencing discretion in the case at hand. So much is clear from Hili v The Queen at 536-537 [53]-[54] and Barbaro v The Queen at 379 [41].

224 It must be emphasised, however, that the sentencing decisions handed to his Honour in the present case were not said by the prosecutor to reveal a range of sentences, nor did his Honour appear, initially at least, to approach them on this basis. However, his Honour's use of the decisions appeared to become somewhat clouded. As the extract from the remarks on sentence set out at [188] above indicates, his Honour had regard to these other sentencing decisions as if they did disclose a range of sentences applicable to the present case.

225 For the reasons emphasised in the United Kingdom cases, and in what has been said already in this judgment, the sentencing decisions provided to his Honour in this case did not provide a range of sentences for so-called one-punch manslaughter cases.

226 There is, in truth, no range of sentences for offences of manslaughter which may be said to have a single common component relating to the mechanism of death (such as the victim's head striking the ground after a blow to the head). To the same effect, there is no range of sentences for manslaughter offences said to have been committed by use of a knife or a rock or some other implement.

227 The myriad circumstances of manslaughter offences render it unhelpful to speak in terms of a range of sentences, or tariff, for a particular form of manslaughter. Gleeson CJ made this clear in R v Blacklidge (see [193] above), in a passage cited regularly in cases such as R v Hoerler [2004] NSWCCA 184; 147 A Crim R 520 at 530 [40].

 

The Respondent's Offences

228 There were particular features of the present case which rendered the Respondent's crimes grave examples of offences under the provisions for which he was prosecuted.

229 When sentencing for manslaughter, a court must always have regard to the full context in which death was caused: R v Hoerler at 531 [44]. The surrounding circumstances may bear upon the objective gravity of the offence and the moral culpability of the offender: R v Hoerler at 531 [44]; R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].

230 Taking into account the context and surrounding circumstances in which the offence was committed, this was a grave offence of manslaughter committed by an offender with a history of violent offences, who was subject to conditional liberty at the time of the offence.

231 The branch of the criminal law encompassing involuntary manslaughter reflects the value placed by the law upon human life: The Queen v Lavender [2005] HCA 37; 222 CLR 67 at 87 [60].

232 The Respondent's attack upon Mr Kelly was cowardly and unprovoked. Despite it being inflicted by a single punch, the Respondent's killing of Mr Kelly was a serious example of unlawful and dangerous act manslaughter which deserved substantial punishment: Heitanen v R [2012] VSCA 173 at [14].

233 We are well satisfied that the sentence imposed for the manslaughter of Mr Kelly was manifestly inadequate.

234 The offence of assault occasioning actual bodily harm committed against Mr Compagnoni occurred first in time. The maximum penalty for an offence under s.59(1) Crimes Act 1900 is imprisonment for five years. The context and surrounding circumstances in which that offence of violence was committed rendered it a serious example of a s.59(1) offence, committed by an offender with a history of violence who was subject to conditional liberty at the time.

235 The assault upon Mr Compagnoni caused a cut above his eye. This was a clear example of actual bodily harm. It must be kept in mind that an assessment of the seriousness of an offence of assault occasioning actual bodily harm cannot take into account that the extent of harm inflicted was of a type that did not include more serious injury which could constitute grievous bodily harm: McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 558 [44].

236 Each of the three offences of assault contrary to s.61 Crimes Act 1900, committed against Mr Serrao, Mr Saliba and Mr Gazi, carried a maximum penalty of two years' imprisonment. In assessing the seriousness of those offences, it is not permissible to take into account the absence of any injury to those persons, as the infliction of actual bodily harm would render the offences different and more serious offences: McIntyre v R at 558-559 [45].

237 In the context and surrounding circumstances of these offences, including the preceding events, awareness and stated intent of the Respondent (considered in the context of Grounds 4 and 5 above), these were grave examples of s.61 offences.

238 We do not think that sentencing statistics in the District Court or the Local Court for offences under s.59(1) or s.61 were of any assistance to the sentencing court when determining sentences for the Respondent arising out of the events on the evening of 7 July 2012.

239 The sentencing Judge considered, in the context of totality, the avoidance of a sentence which would be crushing for the Respondent. Courts are not unfamiliar with descriptions of sentences as "crushing", but that does not articulate some applicable test: Ta'ala v R [2008] NSWCCA 132 at [42] (Grove J, Campbell JA and Johnson J agreeing).

240 In Paxton v R [2011] NSWCCA 242; 219 A Crim R 104 at 132 [215], with the concurrence of Tobias AJA and Hall J, Johnson J said:

"An assessment whether a particular sentence is a 'crushing sentence' must have regard to the offence or offences committed by the offender, the maximum penalties and standard non-parole periods relevant to those offences, and all objective and subjective factors which should be appropriately brought into account on sentence, together with principles concerning accumulation, concurrency and totality. As Grove J observed in Ta'ala v R at [42], 'justice is individual and each offence and each offender requires assessment'."

241 We are satisfied that each of the sentences imposed upon the Respondent, and the total effective sentence imposed, were manifestly inadequate. Consideration of the objective circumstances of the offences, and the subjective circumstances of the Respondent, and proper application of principles concerning accumulation, concurrency and totality ought to have resulted in the imposition of substantially greater sentences than those actually imposed.

242 This conclusion is not based merely upon the view that, if any one of us had been the sentencing Judge at first instance, we would have exercised our discretion differently to that of the sentencing Judge in this case: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672. Rather, we have concluded that patent and latent errors have been demonstrated on the part of the sentencing Judge, so that a number of individual grounds of appeal and, in particular, the final ground have been made good.

243 In R v Carroll, Allsop P and Johnson J said at 59-60 [62]:

"In R v MD [2005] NSWCCA 342; 156 A Crim R 372 at 387 [65], this Court (McClellan CJ at CL, Simpson and Howie JJ) said:

'In many cases where an offender is convicted of manslaughter there will be exculpatory matters and personal circumstances that can lead the court to significantly ameliorate the sentence which might otherwise be imposed. However, as this Court pointed out in R v Troja (unreported, Court of Criminal Appeal, NSW, No 606394 of 1990, 16 July 1991) it is important for the court to ensure that the subjective circumstances of an individual offender do not divert the court from imposing a sentence which adequately reflects the part which the law must play in upholding the protection of human life and in punishing those who take it.'

We are satisfied that the sentencing judge was diverted in this case by Mr Carroll's undoubtedly strong subjective circumstances so as to impose a sentence which did not reflect the serious objective circumstances of the offence: R v Dodd at 354. We find that ground 2 is made good, and serves to explain how an unreasonable or plainly unjust sentence was imposed at first instance."

244 We are satisfied that the sentencing Judge in the present case was diverted from imposing appropriately adequate sentences by reference to the Respondent's subjective circumstances. It should be said, however, that unlike R v Carroll, the present Respondent's subjective circumstances were not especially helpful to him. He was a young man with a deprived upbringing. However, he had prior convictions, including for offences of violence, and was subject to conditional liberty at the time of these offences. The evidence concerning his risk of reoffending and prospects of rehabilitation was problematic, although (as stated earlier) the sentencing Judge made findings in this respect which were unduly favourable to the Respondent and not supported by the limited evidence before the Court.

245 We uphold the final ground of appeal.

The Residual Discretion and Resentencing

246 If error was demonstrated, two affidavits of the Respondent's solicitor, Claire O'Neill, affirmed 24 April 2014 and 5 May 2014 were read on the appeal. We will return to the contents of these affidavits shortly.

247 In determining a Crown appeal under s.5D Criminal Appeal Act 1912, this Court has a residual discretion to decline to interfere with a sentence even though the sentence is erroneously lenient: Green v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1]-[2]. This discretion may be exercised for reasons other than double jeopardy: R v JW [2010] NSWCCA 49; 77 NSWLR 7 at 24-25 [92], [95] and at 33 [150].

248 The Crown submitted that the onus lies upon the Respondent to establish that the discretion not to intervene ought be exercised in his favour: R v Smith [2007] NSWCCA 100 at [60]; R v CMB [2014] NSWCCA 5 at [110]; R v Gavel [2014] NSWCCA 56 at [125]. It was submitted for the Respondent that it was for the Crown to negate any reason why the residual discretion of this Court not to interfere should be exercised: R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 at 458 [12].

249 The outcome of the present appeal is not to be determined by application of the concept of onus. The Court should determine whether the residual discretion to dismiss the appeal ought be exercised, in all the circumstances of the case, and by reference to the material placed before this Court which bears upon the exercise of that discretion.

Submissions and Evidence

250 Mr Boulten SC submitted that, if error was established, it would nevertheless be appropriate for the Court to decline to intervene in the exercise of residual discretion for reasons including the following:

(a) the conduct of the Crown in the matter had caused greater delay and anxiety for the Respondent than would usually occur because of the Crown's original application for a guideline judgment;

(b) the appeal had affected the Respondent's classification in custody so that he has not been able to access education and programs whilst awaiting the hearing of the appeal.

251 With respect to the first submission, it was noted that the Respondent had been in custody since 18 July 2012 and that the length of the delay is a relevant feature to be taken into account.

252 With respect to the second submission, and generally, it was submitted that the Respondent's sentence is significant and lengthy, particularly for a young man in the process of maturation, and that his compelling subjective circumstances and the delay militate against intervention: R v Huang [2010] NSWCCA 68; 200 A Crim R 419 at 430-431 [78]-[81].

253 The Respondent relied, as well, upon the affidavits of Ms O'Neill. Those affidavits included a further report of Mr Champion dated 15 April 2014, together with updated information concerning the Respondent's progress in custody. The Respondent has completed the Getting Smart program and is employed in the furniture business unit at the South Coast Correctional Centre. The Respondent has not been able to access any "compendium programs" (rehabilitation programs) since being transferred to the South Coast Correctional Centre. The Respondent had indicated a willingness to enter custodial programs designed to reduce the risk of reoffending.

254 Mr Champion was asked to comment upon a number of issues in his supplementary report. Firstly, he was asked how the appeal had impacted on the Respondent's mental state. The Respondent informed Mr Champion that he felt down when he heard of the appeal, but that he had been "sort of expecting it", in part because of the publicity. Mr Champion concluded that it was not obvious that the lodging of the appeal had resulted in a major deterioration in the Respondent's mental state, in the sense of him developing overt signs of mental illness, though it did appear to have impacted in a general sense.

255 Mr Champion was asked whether the appeal had impacted on the Respondent's experience of custody. The Respondent informed Mr Champion of a number of features, including the freezing of his classification, and the fact that the Crown appeal had "placed him back in limbo as it were". The Respondent informed Mr Champion that he had been barred from attending the funeral of his maternal grandfather because of his "high media profile".

256 Mr Champion was asked whether the ongoing media coverage of the Respondent's matter had impacted on him since the day of sentencing. The Respondent informed Mr Champion of a number of features of the publicity surrounding the case which had attracted some negative experiences in custody.

257 Mr Boulten SC relied upon all these matters in support of the exercise of the residual discretion to dismiss the Crown appeal. If the Court moved to resentence the Respondent, the Court was asked to take the additional evidence into account on sentence.

258 The Crown submitted that clear error having been demonstrated, including the imposition of manifestly inadequate sentences, the Court should not exercise its residual discretion, but should proceed to resentence the Respondent.

Decision

259 In considering the exercise of the residual discretion, the starting point is that clear error has been demonstrated in a number of respects, including the imposition of manifestly inadequate sentences.

260 We do not consider that any conduct on behalf of the Crown operates in the Respondent's favour with respect to the residual discretion. The Crown did not provide the sentencing decisions in other cases to the sentencing Judge to indicate a range of sentences applicable to this case. Nor did the Crown's initial indication, in late 2013, that an application for a guideline judgment was to be made, operate in any material way to assist the Respondent in the exercise of the residual discretion.

261 A Crown appeal against sentence was lodged promptly and the Respondent was notified of it. As the evidence indicates, the Respondent was not surprised that a Crown appeal had been lodged. Any delay in the hearing of the Crown appeal because of the Crown's indication, subsequently withdrawn, that a guideline judgment was to be sought did not give rise to any relevant delay.

262 The Respondent has made some progress in custody, and the existence of the Crown appeal has had some impact upon him in ways which may be taken into account by this Court, other than by reference to double jeopardy. We have regard to the affidavits of Ms O'Neill in considering this question.

263 We are satisfied that the residual discretion should not be exercised in favour of the Respondent. This Court should proceed to resentence him for these offences. The additional evidence will be taken into account on sentence.

264 The interests of justice require the imposition of appropriate sentences for these serious crimes: R v Dinh at 587 [79]; R v Gavel at [126]. The Respondent's offences are patently serious and there is a corresponding propriety in imposing sentences upon him that reflect this: R v CMB at [109]; R v Gavel at [126].

265 The objective circumstances of the Respondent's offences, and his subjective circumstances, have been outlined in some detail earlier in this judgment. It is not necessary to embark upon a further detailed examination of these matters in the context of determining appropriate sentences to be passed on this appeal.

266 The sentencing Judge allowed a discount of 25% for the utilitarian value of the Respondent's pleas of guilty. It is appropriate to apply the same discount on sentence in this Court.

267 This was a very grave example of manslaughter by unlawful and dangerous act. Without applying any element of double punishment, it is appropriate to have regard to the surrounding circumstances in which the offence was committed. These circumstances involved the commission of other random acts of violence directed at innocent victims both before and after the fatal attack upon Mr Kelly.

268 The Respondent had a criminal history for offences of violence, including a very recently imposed court order involving conditional liberty which was breached by his actions on 7 July 2012.

269 The offences were committed in a location where many young persons had gathered on a Saturday evening for peaceful and lawful social activity. The Respondent effectively ran amok in Kings Cross attacking strangers for no reason. The potential for grave injury to occur translated into reality when the Respondent criminally took the life of Mr Kelly.

270 Regard should be had to the Respondent's youth, his deprived upbringing and the fact that this is his first time in custody. General deterrence and specific deterrence are most significant factors on sentence for reasons outlined earlier in this judgment. The Respondent's risk of reoffending and prospects of rehabilitation remain somewhat problematic, although there has been some progress in custody. A finding cannot be made that he is unlikely to reoffend.

271 Having regard to all objective and subjective factors, before application of the 25% discount for his plea of guilty, a head sentence of 14 years' imprisonment is appropriate for the offence of manslaughter.

272 By reference to all objective factors and subjective factors, before application of the 25% discount, a head sentence of two years and six months' imprisonment is appropriate for the offence of assault occasioning actual bodily harm.

273 Having regard to all objective and subjective factors, before application of the 25% discount for his pleas of guilty, the following sentences are appropriate for the three offences of assault:

(a) Count 3 - assault of Mr Serrao - imprisonment for 12 months;

(b) Count 4 - assault of Mr Saliba - imprisonment for 15 months;

(c) Count 5 - assault of Mr Gazi - imprisonment for 18 months.

274 After application of the 25% discount (and with some rounding), the head sentences to be imposed for the five offences are as follows:

(a) manslaughter of Mr Kelly - imprisonment for 10 years and six months;

(b) assault occasioning actual bodily harm upon Mr Compagnoni - 22 months' imprisonment;

(c) assault upon Mr Serrao - nine months' imprisonment;

(d) assault upon Mr Saliba - 11 months' imprisonment;

(e) assault upon Mr Gazi - 13 months' imprisonment.

275 We are satisfied that application of the principles of accumulation, concurrency and totality should see a significant level of accumulation as between the various sentences. There are five different victims of these offences. Five separate attacks were made against strangers in the street with different levels of outcome for the victims. All were frightening experiences, at the least, with tragic consequences arising from the attack upon Mr Kelly whereby the Respondent took a human life by his criminal act.

276 In approaching the issue of totality, it must be kept in mind that the total effective sentence is to be passed upon a young offender. At the same time, regard must be had to all the purposes of sentencing, which attracts all features of the Respondent's criminal conduct and his background which have been addressed earlier in this judgment.

277 In circumstances where the Respondent's subjective circumstances, including his youth and difficult background and the fact that it is his first time in custody have been taken into account in fixing the head sentences, we are not persuaded that special circumstances ought be found to adjust the statutory ratio for reasons other than the process of accumulation which is to be undertaken. An adjustment will be made to the statutory ratio on the manslaughter count to give effect to this conclusion.

278 It is appropriate to fix non-parole periods for the offences of manslaughter and assault occasioning actual bodily harm. However, the sentences for the assault offences will involve fixed terms of imprisonment. It is appropriate to proceed in this way given the process of accumulation, and the avoidance of short and unnecessarily complicating non-parole periods for the assault offences.

279 The sentencing Judge took the approach that the sentences should date from 18 September 2012, and a similar approach ought be taken in this Court.

280 The total sentence will be one of 13 years and eight months commencing on 18 September 2012 with a non-parole period of 10 years and two months expiring on 17 November 2022.

281 As the Respondent is to be resentenced, it is appropriate to consider the victim impact statements and to comment upon their contents: s.28(3) Crimes (Sentencing Procedure) Act 1999. For the family of Thomas Kelly, the sudden loss of a young man of great promise in any circumstances, let alone those present here, must be a cause of overwhelming grief. He was doing no more than socialising peacefully with friends in a public street when this terrible event occurred. Although words can only provide limited assistance in circumstances such as this, it is appropriate that the Court expresses condolences, on behalf of the community, to the family for their loss.

282 We make the following orders:

(a) Crown appeal allowed;

(b) sentences imposed in the Supreme Court of New South Wales on 8 November 2013 are quashed;

(c) in their place, the Respondent is sentenced as follows:

(i) for the offence of assault upon Matthew Serrao (Count 3) - sentenced to a fixed term of imprisonment of nine months commencing on 18 September 2012 and expiring on 17 June 2013;

(ii) for the offence of assault upon Rhyse Saliba (Count 4) - sentenced to a fixed term of imprisonment of 11 months commencing on 18 March 2013 and expiring on 17 February 2014;

(iii) for the offence of assault upon Aden Gazi (Count 5) - sentenced to a fixed term of imprisonment for 13 months commencing on 18 October 2013 and expiring on 17 November 2014;

(iv) for the offence of assault occasioning actual bodily harm upon Marco Compagnoni (Count 2) - sentenced to imprisonment comprising a non-parole period of 16 months commencing on 18 July 2014 and expiring on 17 November 2015, with a balance of term of six months commencing on 18 November 2015 and expiring on 17 May 2016;

(v) for the manslaughter of Thomas Kelly (Count 1) - sentenced to imprisonment comprising a non-parole period of seven years commencing on 18 November 2015 and expiring on 17 November 2022 with a balance of term of three years and six months commencing on 18 November 2022 and expiring on 17 May 2026.

283 The earliest date upon which the Respondent will be eligible for release on parole is 18 November 2022.

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Decision last updated: 04 July 2014